STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7785

)

OMAR G. OTERO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 10, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Gina Cassidy, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Rosanne Brady, Esquire

1901 NW 17th Avenue Miami, Florida 33125

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Amended Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

The Amended Administrative Complaint filed by Petitioner alleges certain facts involving the reckless display and discharge of a firearm and seeks to discipline the Respondent's certification as a correctional officer based on those alleged facts. Petitioner contends that the alleged facts demonstrate that Respondent has failed to maintain the qualification of good moral character as required by Section 943.13(7), Florida Statutes, and seeks to discipline his certification pursuant to Section 943.1395(5) and (6), Florida Statutes.

Respondent timely requested a formal administrative hearing to contest the charges brought against him.

At the formal hearing, Petitioner called as witnesses Godfrey Brown, Kayode Eyinfunjowo, Robert Goodell, and Robert Funderburk. Mr. Brown was a passenger

in an automobile owned and driven by Mr. Eyinfunjowo during the incident that is involved in this proceeding. Mr. Goodell is a sergeant with the Broward County Sheriff's office who was assigned to its Internal Affairs Division at the time of the subject incident. Mr. Funderburk is a police officer with the Metro-Dade Police Department who was involved with investigating the subject incident.

Respondent testified on his own behalf and called as his only other witness his fiancee, who was a passenger in the automobile Respondent was operating at the time of the subject incident. Neither party presented any exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on February 23, 1989, and was issued certificate number 03-88-502-07. Respondent was employed as a certified correctional officer by the Broward County Sheriff's Office at the time of the incidents described in the Amended Administrative Complaint.

   
   

2. On April 15, 1989, Respondent was operating his automobile on the 67th Street on-ramp to the eastbound lanes of the Palmetto Expressway between 4:00 and 4:30 P.M. Irene Alvarez, Respondent's fiancee, was a passenger in Respondent's automobile. Respondent's automobile, a Toyota Corolla station wagon, was experiencing mechanical difficulties and could not accelerate rapidly.

   
   

3. On April 15, 1989, Kayode Eyinfunjowo and Godfrey Brown were travelling together to a soccer game in a Datsun 280-Z that was owned and operated by Mr. Eyinfunjowo. Mr. Eyinfunjowo's car was a two-door hardtop (not a T-top) with darkened windows. When Mr. Eyinfunjowo's vehicle entered the 67th Street on- ramp to the eastbound lanes of the Palmetto Express, Mr. Eyinfunjowo and Mr. Brown first noticed Respondent's vehicle in front of them. Because of the mechanical problems Respondent was operating his vehicle at less than 10 miles per hour. Mr. Eyinfunjowo's vehicle could not pass Respondent's vehicle because the on-ramp was only one lane. As a consequence of the slow rate of speed of Respondent's vehicle and the one lane of traffic on the on-ramp, Mr. Eyinfunjowo was required to drive his car at a much slower speed than he wanted.

   
   

4. Once both vehicles were on Palmetto Expressway, Respondent's vehicle continued to travel very slowly in the extreme right hand lane of traffic 1/ and Mr. Eyinfunjowo began to pass Respondent in the adjoining lane of traffic.

   
   

5. As Mr. Eyinfunjowo's vehicle began to pass Respondent's vehicle, Mr. Brown rolled down his window, stuck his head and shoulders outside of the car and said something to Respondent. 2/ There is a conflict in the evidence as to what Mr. Brown said. Mr. Brown testified that he merely inquired as to why Respondent was driving so slowly. Respondent testified that Mr. Brown shouted obscenities. This conflict is resolved by finding that the greater weight of the evidence is that Mr. Brown complained to Respondent about being slowed down by his car and made a profane, derogatory comment about Respondent's car. Mr. Brown did not make any verbal threat against Respondent and Mr. Eyinfunjowo did

   not verbally communicate with Respondent. Neither Mr. Eyinfunjowo nor Mr. Brown displayed any type of weapon during the incident.

   
   

6. Respondent testified that Mr. Eyinfunjowo's tailgated him while coming up the on-ramp and repeatedly blew its horn at him, tried to run him off the road. Respondent also testified that the two vehicles were very close together when Mr. Brown shouted at him and that Mr. Eyinfunjowo slammed on his brakes after he passed Respondent. Mr. Eyinfunjowo and Mr. Brown deny that they tailgated Respondent, tried to run him off the road, or slammed on brakes in front of him. The conflict in the evidence is resolved by finding that the more credible testimony establishes that Mr. Eyinfunjowo followed Respondent very closely, blew his horn at Respondent, pulled up close to Respondent's car while Mr. Brown was shouting at Respondent. The more credible evidence is that Mr. Eyinfunjowo did not try to run Respondent off the road and that he did not slam on his brakes after he passed Respondent.

   
   

7. After Mr. Brown shouted at him, Respondent did not verbally respond. When Mr. Brown saw Respondent reach for an object, he believed that Respondent was reaching for a weapon and told Mr. Eyinfunjowo to accelerate. Mr. Eyinfunjowo immediately accelerated and began to distance his vehicle from that of the Respondent. The Respondent, who was driving his vehicle at approximately

   5 miles per hour, reached with his right hand for a firearm, 3/ removed the firearm from his glove compartment, shifted the firearm to his left hand, and, while steering the car with his right hand, stuck the gun out of the window and discharged the firearm. There is a dispute in the evidence as to whether Respondent shot once or twice. Respondent admits that he shot once. Mr. Eyinfunjowo and Mr. Brown testified that they heard two shots. The greater weight of the evidence and the more credible testimony established that Respondent shot the firearm twice. At the time the shots were discharged, Mr. Eyinfunjowo's vehicle was moving away from Respondent's vehicle and the occupants thereof were very frightened. When the first shot was fired, Mr. Eyinfunjowo's vehicle was between one and two lengths ahead of Respondent's vehicle. When the second shot was fired, Mr. Eyinfunjowo's vehicle was between three and six car lengths ahead of Respondent's vehicle. During this series of events, Mr. Brown's head and shoulders were out of the window.

   
   

8. There was also a dispute as to the direction of the shots. Mr. Brown testified that it appeared that the firearm was being aimed at him. Respondent testified that he aimed well to the right of Mr. Eyinfunjowo's vehicle in the direction of a vacant field. The more credible evidence is that Respondent was not attempting to shoot Mr. Brown and that he aimed to the right of Mr. Eyinfunjowo's vehicle.

   
   

9. Respondent has had training as a marksman in both his right and his left hand. During his training to become a certified officer, he was qualified as a "Sharpshooter", which is the second highest rating for marksmanship.

   
   

10. When Mr. Brown began shouting at the Respondent, Ms. Alvarez who was approximately 2 1/2 months pregnant and had experienced difficulties with her pregnancy, became frightened and began screaming. Respondent testified that he also became frightened and that the only reason he discharged his firearm was to scare off Mr. Eyinfunjowo and Mr. Brown.

    
    

11. After the gunshots, Mr. Eyinfunjowo drove away rapidly and stopped on the Palmetto Expressway near 57th Avenue after he saw a Metro-Dade police car. Respondent stopped at this same exit to try to find a telephone to report the incident. As Mr. Eyinfunjowo and Mr. Brown flagged down the police car, Mr.

    Brown saw Respondent stop his car at a distance and begin to approach them. Mr. Brown testified that Respondent had his gun in hand. Respondent testified that his gun was in the car. The conflict is resolved by finding that Respondent had his gun in his hand when he first saw Mr. Brown after both vehicles had stopped, but that Respondent made no attempt to fire at Mr. Brown or to threaten him with the firearm.

    
    

12. Once the police officers were on hand, Respondent identified himself for the first time as a correctional officer. Respondent was not wearing a uniform and he was not driving a marked police car. Respondent cooperated with the police officers at the scene and during subsequent investigation. Although the police officer who conducted the investigation of this proceeding recommended that criminal charges be brought against Respondent, the State Attorney's office declined to prosecute.

    
    

13. None of the participants in this incident had been drinking alcohol.

    
    

14. April 15, 1989, was a clear, sunny day.

    
    

15. Prior to firing his firearm, Respondent did not display his correctional officer badge or attempt to identify himself as an officer. Respondent was not on duty at the times pertinent hereto.

    
    

16. Shortly after this incident, Respondent's employment with the Broward County Sheriff's Office was terminated. At the time of the formal hearing, Respondent was operating a restaurant.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

18. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must

    be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

19. Section 943.13(7), Florida Statutes, requires that law enforcement officers and correctional officers have good moral character.

20. The failure of such an officer to maintain good moral character is grounds for the discipline of his certification. Section 943.1395, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) ...

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary statue for a period not to exceed 2 years, subject to terms and conditions imposed by the commission.

          Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       3. Successful completion by the officer of any basic recruit, advanced, or career

          development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

          
          

21. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of moral character as follows:

    
    

    Moral character ... 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.

    
    

22. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires 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.

23. Rule 11B-27.0011, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether prosecuted or not: ... 790.10 ... F.S., or

       3. 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 ...

    
    

24. Section 790.10, Florida Statutes, provides, in pertinent part, as follows:

    
    

    If any person having or carrying any ... firearm ... shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree ...

    
    

25. Section 790.15(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (2) Any occupant of any vehicle who knowingly discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree ...

    
    

26. Petitioner established by clear and convincing evidence that Respondent, on April 15, 1989, displayed his firearm in a rude, careless, angry, and threatening manner in violation of Section 790.10, Florida Statutes. Respondent's actions were not necessary to his defense or to the defense of his passenger. Consequently, Petitioner established that Respondent failed to maintain good moral character pursuant to Rule 11B-27.0011(4)(b), Florida Administrative Code.

    
    

27. Petitioner established by clear and convincing evidence that Respondent twice discharged his firearm from his moving vehicle while he was within 1,000 feet of Mr. Eyinfunjowo and Mr. Brown, acts which constitute felonies pursuant to Section 790.15(2), Florida Statutes. Consequently, Petitioner established that Respondent failed to maintain good moral character pursuant to Rule 11B-27.0011(4)(a), Florida Administrative Code.

28. The penalty to be imposed in this proceeding should be imposed pursuant to Section 943.1395(6), Florida Statutes, which addresses officers who have failed to maintain good moral character, as opposed to the more general Section 943.1395(5), Florida Statutes.

    
    

29. The undersigned has considered Petitioner's position that Respondent's certification should be revoked. The seriousness of Respondent's actions cannot be ignored since it is apparent that Respondent created a very dangerous situation that could easily have led to injury or death. Respondent's assertion that his training with firearms in some fashion made this incident less dangerous is rejected. Respondent, who is right handed, discharged his firearm with his left hand while he steered the moving vehicle with his right hand on the Palmetto Expressway. That no one was injured is fortunate and cannot be attributed to Respondent's skill with a firearm. Respondent's gross lack of judgment dictates that a substantial penalty be imposed against his certification.

    
    

30. The following penalty of suspension is recommended in lieu of revocation because Respondent was not trying to hit Mr. Brown or Mr. Eyinfunjowo's vehicle, no one was injured, there was no property damage, the incident occurred in 1989, and there was no evidence that Respondent has engaged in misconduct since this isolated incident.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact

contained herein, which finds that Respondent failed to maintain the

qualification of good moral character, and which suspends Respondent's certification for a period of one year.

DONE AND ORDERED this 30th day of April, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 30th day of April, 1992.

ENDNOTES

1/ The Palmetto Expressway is a heavily travelled highway in Dade County Florida. In addition to three lanes of eastbound traffic there is a "breakdown" lane. The speed limit is 55 miles per hour.

2/ Mr. Brown is a physically imposing individual who is 6'7" tall and weighs

250 pounds. In contrast, Respondent is 5'7" tall and weighs 138 pounds. Ms. Alvarez is five feet tall and, when not pregnant, weighs 105 pounds.

3/ This firearm, a .380 Beretta, was not issued by Respondent's employer and was not necessary for his employment. There was no contention that Respondent's possession of this firearm was illegal.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 50, 52, 55, 56, 57, 58, 59, and 61 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3 are adopted in part by the Recommended Order. The finding that the incident occurred between 4:00 and 4:30 P.M. is based in large part on Officer Funderburks's testimony that the incident occurred at 4:24 P.M. See page 94 of the transcript.

3. The proposed findings of fact in paragraph 20 are adopted in part by the Recommended Order. Mr. Brown did not verbally threaten Respondent. It is not concluded that Mr. Brown's presence and the actions he took in shouting to Respondent was not perceived by Respondent as being a threat. The conclusion is that such a perception on the part of the Respondent would not have justified the reaction by Respondent.

4. The proposed findings of fact in paragraph 28 are rejected to the extent they are contrary to the findings made.

5. The proposed findings of fact in paragraphs 46 and 47 are rejected as being subordinate to the findings made.

6. The proposed findings of fact in paragraphs 51, 53, 54, and 60 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 14, 15, and 16 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 10, 11, 12, and 13 are adopted in part only. The portions of the proposed findings that are contrary to the findings made are rejected.

COPIES FURNISHED:

Gina Cassidy, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rosanne Brady, Esquire 1901 NW 17th Avenue Miami, Florida 33125

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

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

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Department of Law Enforcement Criminal Justice Standards

and Training Commission Post Office 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: 91-007785

Orders for Case No: 91-007785