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STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS & ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3660

)

THOMAS C. PHILLIPS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 11, 1991, in West Palm Beach, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dawn Pompey, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Mark D. Ewart, Esquire

319 Clematis Street, Suite 817 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's certification as a law enforcement officer should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In a one count Administrative Complaint dated January 31, 1991, the Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, has charged the Respondent, Thomas C. Phillips, with failing to maintain the qualifications set forth in Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, which require a law enforcement officer to have good moral character. Petitioner seeks to discipline Respondent's law enforcement officer certification pursuant to Sections 943.1395(5) and (6), Florida Statutes. Respondent timely requested a hearing on the allegations pursuant to Section 120.57, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of four witnesses: JoAnn Baker, the alleged victim of a battery by Respondent; and three former employees of the yogurt shop where the battery allegedly occurred, Frank R. Bauer, II, Andrea Scoz and Amy Hart. Petitioner offered five exhibits into evidence, all of which were accepted without objection except Petitioner's

Exhibit Five which was a certified copy of the disposition of a related criminal charge against Respondent. Respondent objected to the introduction of this exhibit because adjudication on the charge was withheld in accordance with a plea arrangement. At the hearing, ruling on the admissibility of this exhibit was reserved. After further review and consideration, that exhibit is hereby accepted into evidence in accordance with Section 120.58, Florida Statutes. See, The Florida Bar vs. Lancaster, 448 So.2d 1019 (Fla. 1984); Kinney vs. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA, 1987) Respondent has been provided with a full opportunity to explain the reasons for his nolo contendere plea.

Respondent testified on his own behalf and offered one exhibit into evidence, which was accepted without objection. Respondent requested the opportunity to submit the deposition of his wife, who was unable to attend the hearing and who was located more than 100 miles from the hearing site, as a late-filed exhibit. Because counsel for Respondent had not been retained until shortly before the hearing and had limited time to prepare for the hearing and arrange for the attendance of witnesses, that request was granted over Petitioner's objection. The deposition of Janet Phillips was submitted on February 17, 1992.

Petitioner called one rebuttal witness, Michael Broyer, a police officer with the Royal Palm Beach Police Department.

A transcript of the proceedings has been filed. Both parties have submitted proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on November 10, 1983 and issued certificate number 16-83- 002-04.

   
   

2. At all times pertinent to this procceeding, Respondent was a certified law enforcement officer and was employed as a Deputy Sheriff by the Palm Beach County Sheriff's Office. Respondent was not on duty or in uniform at the time of the incident described in the Administrative Complaint.

   
   

3. On October 1, 1989, the Respondent and his wife, Janet Phillips, were leaving the TCBY Yogurt Shop in the Royal Palm Beach area.

   
   

4. As the Respondent was proceeding to get into the driver's side of their BMW and Janet Phillips was proceeding to get into the passenger side, another car, driven by JoAnn Baker, pulled into the space next to the Respondent's car.

5. Mrs. Baker parked in a position where the driver's door of her car was next to the passenger door of the Respondent's car.

   
   

6. As Mrs. Baker was getting out of her car and Mrs. Phillips was getting into her car, the car doors bumped into each other causing the BMW door to knock Mrs. Phillips in the back.

   
   

7. After the cars doors bumped, Mrs. Phillips and Mrs. Baker began exchanging words. While Mrs. Baker contends that she was only attempting to apologize, the more credible evidence established that she was a vocal and agitated participant in the argument. Respondent joined in the verbal altercation while all parties were still in the parking lot. At this point, there was no physical contact between Mrs. Baker and Mrs. Phillips nor between Mrs. Baker and the Respondent.

   
   

8. Mrs. Baker flipped a "bird" at Respondent and his wife and walked into the yogurt store.

   
   

9. The Respondent and his wife got into their car. However, after a few moments, the Respondent's wife got out of the car and went back into the yogurt shop after Mrs. Baker.

   
   

10. Respondent followed his wife into the yogurt shop a short time later.

    
    

11. Mrs. Phillips walked directly up to Mrs. Baker and got within two (2) or three (3) feet of her. The two women exchanged verbal insults and vulgarities. Mrs. Phillips then stepped toward Mrs. Baker, raised her hand and slapped Mrs. Baker in the face.

    
    

12. Mrs. Baker immediately put her hands up in defense to block any other blows. She also made a move towards Mrs. Phillips. Respondent, who by this point had entered the shop, stepped between the two women and pushed Mrs. Baker back against the counter.

    
    

13. The Respondent grabbed Mrs. Baker by her arms, lifted her up off the floor and physically placed her down on the counter in a rough manner. The Respondent also placed his forearm and elbow against Mrs. Baker's throat and chest area pinning her against the counter while bending her backwards with her legs dangling off the floor.

    
    

14. While pinning Mrs. Baker against the counter, the Respondent was very upset; he put his face within a few inches of Mrs. Baker's face and was screaming at her. Respondent called her a "whore" and a "bitch".

    
    

15. After a brief period had passed, the Respondent let go of Mrs. Baker.

    
    

16. The Respondent did not apologize to Mrs. Baker nor did he offer any type of assistance to her after the incident.

    
    

17. Mrs. Baker went outside to get the Respondent's tag number and told them she was going to call the cops. She also threatened to sue Respondent, which she subsequently did.

    
    

18. The Respondent and his wife got in their BMW and left the area.

    
    

19. Mrs. Baker received minor bruises and injuries to her back as a result of the incident.

20. Prior to the Respondent grabbing Mrs. Baker, Mrs. Baker had not made any physically aggressive moves towards the Respondent.

    
    

21. At the time of the incident, the Respondent was 6'3" in height and weighed 215 pounds; JoAnn Baker was 5'4" in height and weighed between 126 and

    135 pounds. The evidence was inconclusive as to the size of Mrs. Phillips, but she was roughly the same size as Mrs. Baker.

    
    

22. The Respondent was subsequently charged with a misdemeanor battery based on a complaint filed by Mrs. Baker. He entered a nolo contedere plea to the charge on the advice of his attorney. Adjudication was withheld and Respondent was sentenced to a brief probationary period which he successfully completed . As a result of this incident, Respondent has lost his job with the Palm Beach County Sheriff's office.

    
    

23. Respondent's wife had abdominal surgery approximately two weeks before this incident. Respondent claims that he was very concerned about her physical condition and was simply trying to protect her when he thought that Mrs. Baker was going to "attack" his wife. While Respondent's concern is understandable, it is clear that he overreacted and used undue force in restraining Mrs. Baker.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes (1989).

    
    

25. In a disciplinary proceeding such as this case, the burden is upon the regulatory agency to establish by clear and convincing evidence the facts upon which its allegations of misconduct are based. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

26. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida. The Amended Administrative Complaint alleges that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which provides that an officer must have good moral character.

    
    

27. Section 943.1395(5), Florida Statutes, empowers the Commission to revoke the certificate of any officer who does not maintain the qualifications set forth in Section 943.13(1)-(10), Florida Statutes. Section 943.1395(6) establishes certain lesser penalties that may be applied when a certified officer has not maintained good moral character. Those penalties include suspension of certification for a period not to exceed two years and/or probation for a period not to exceed two years.

    
    

28. The term "good moral character" in Section 943.13(7), Florida Statutes is not defined by statute. The rules adopted by the Commission do, however, provide some guidance. Pertinent to this case, Rule 11B-27.0011(4)(b), Florida Administrative Code, provides:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain a

    good moral character, as required by Section 943.13(7), is defined as:

    * * *

    (c) The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for

    the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime....

    
    

29. The rule adopted by Commission is consistent with the interpretation given by the courts to similar language in other licensing statutes. For example, in Zemour, Inc. v. Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977), the Court was required to address a requirement of good moral character in the context of a beverage licensing case. The Court held:

    
    

    Moral character, as used in the statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules

    of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. Id. at 1105.

    
    

30. In The Florida Board of Bar Examiners re: G.W.L. 364 So.2d 454 (Fla. 1978), the Florida Supreme Court, in a case involving admission to the Bar, stated that an appropriate definition of the phrase lack of good moral character,...

    
    

    [R]equires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness and respect for the rights of others and for the laws of the state and nation. Id. at 458.

    
    

31. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity. The position of a law enforcement officer is one of great public trust. The public has the right to expect that those who enforce the law will themselves obey the law. City of Palm Bay v. Baumman, 475 So.2d 1322 (Fla. 5th DCA 1989).

    
    

32. The evidence in this case established that on October 1, 1989 the Respondent unlawfully and intentionally touched or struck JoAnn Baker against her will. There is no question that Respondent overreacted and did not demonstrate the restraint and concern for others that is expected of a law enforcement officer.

33. While Mrs. Baker was not wholly blameless, Respondent, as a law enforcement officer should have retained his composure. Respondent's concern for his wife's health and physical condition is a mitigating factor, but does not excuse his conduct. Accordingly, it is concluded that Respondent has failed to maintain good moral character in violation of Section 943.13(7), Florida Statutes.

    
    

34. In view of all of the circumstances in this case, including the minor injuries involved, and in the absence of any other evidence of misconduct by Respondent, Petitioner's suggestion that Respondent's certification should be revoked is unduly harsh.

    
    

    RECOMMENDATION

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission

    enter a Final Order finding the Respondent guilty of the allegations contained in the Administrative Complaint and suspending his certification as a law enforcement officer for three months followed by a probationary period of one year.

    
    

    DONE and ENTERED this 25th day of March, 1992, at Tallahassee, Florida.

    
    

    
    

    J. STEPHEN MENTON Hearing Officer

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, Florida 32399-1550

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1992.

    
    

    APPENDIX TO RECOMMENDED ORDER

    
    

    Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

    
    

    The Petitioner's Proposed Findings of Fact

    
    

    Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted

    or Reason for Rejection.

    
    

    1. Adopted in substance in Findings of Fact 1.

    2. Adopted in substance in Findings of Fact 2.

    3. Adopted in substance in Findings of Fact 2.

    4. Adopted in substance in Findings of Fact 3.

    5. Adopted in substance in Findings of Fact 4.

    6. Adopted in substance in Findings of Fact 4.

    7. Adopted in substance in Findings of Fact 5.

    8. Adopted in substance in Findings of Fact 6.

    9. Subordinate to Findings of Fact 7.

    10. Subordinate to Findings of Fact 7.

    11. Subordinate to Findings of Fact 7.

    12. Subordinate to Findings of Fact 8.

    13. Subordinate to Findings of Fact 9.

    14. Subordinate to Findings of Fact 9.

    15. Rejected as unnecessary.

    16. Adopted in substance in Findings of Fact 10.

    17. Subordinate to Findings of Fact 11.

    18. Rejected as unnecessary and not supported by the weight of the evidence.

    19. Adopted in substance in Findings of Fact 11.

    20. Adopted in substance in Findings of Fact 12.

    21. Subordinate to Findings of Fact 13.

    22. Adopted in substance in Findings of Fact 13.

        
        

    23. Subordinate to Findings of Fact 14.

    24. Subordinate to Findings of Fact 14.

    25. Subordinate to Findings of Fact 15.

    26. Adopted in substance in Findings of Fact 16.

    27. Adopted in substance in Findings of Fact 17.

    28. Adopted in substance in Findings of Fact 18.

    29. Subordinate to Findings of Fact 19.

    30. Subordinate to Findings of Fact 13.

    31. Adopted in substance in Findings of Fact 20.

    32. Adopted in pertinent part in Findings of Fact 21.

    33. Subordinate to Findings of Fact 22.

The Respondents's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 2-3.

4. Rejected as vague and unnecessary.

5. Adopted in substance in Findings of Fact 4-6.

6. Adopted in substance in Findings of Fact 7.

7. Adopted in substance in Findings of Fact 8.

8. Adopted in substance in Findings of Fact 9-10.

9. Subordinate to Findings of Fact 11-12.

10. Subordinate to Findings of Fact 11-12.

11. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 12-13.

12. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12.

13. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12.

14. The first sentence is adopted in substance in Findings of Fact 23. The second sentence is rejected as not supported by the weight of the evidence.

15. Subordinate to Findings of Fact 12-15 and 17.

16. Subordinate to Findings of Fact 12-15.

17. Rejected as unnecessary.

18. Adopted in substance in Findings of Fact 22.

19. Adopted in substance in Findings of Fact 22.

COPIES FURNISHED:

Dawn Pompey, Esquire Assistant General Counsel Florida Department of Law

Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Mark D. Ewart, Esquire

319 Clematis Street, Suite 817 West Palm Beach, Florida 33401

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission

P.O. Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards

Training Commission

P.O. Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003660

Orders for Case No: 91-003660