STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE )

STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 93-2709

)

EDGAR S. SEARCY, )

)

RESPONDENT. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 18, 1993, in Winter Haven, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Steve Brady, Esquire

Regional Legal Advisor Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

FOR RESPONDENT: Doris Hundley

Qualified Representative

490 East Plum Avenue Chipley, Florida 32428

STATEMENT OF THE ISSUES

Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March 31, 1992, charging that Respondent failed to maintain good moral character by unlawfully soliciting another to commit prostitution on at least four occasions, and assisting another to do so on one occasion. Respondent demanded a formal hearing by filing an Election of Rights on October 27, 1992. This matter was referred to the Division for formal hearing on May 14, 1993.

Following discovery and a continuance requested by the Petitioner, this cause was transferred to the undersigned Hearing Officer and the formal hearing was held. At the hearing the Petitioner presented the testimony of two witnesses, one rebuttal witness, and four exhibits were admitted in evidence without objection. Respondent presented the testimony of three witnesses and testified himself. One exhibit was admitted in evidence and two documents offered were excluded.

Both parties agreed to file their proposed recommended orders within 15 days of the hearing. The proceedings was not transcribed. Petitioner filed its Proposed Findings of Fact and Conclusions of Law on December 2, 1993.

Respondent filed his proposed findings on December 9, 1993. Also, on December 2nd, Petitioner moved to amend the Administrative Complaint, and stated the Administrative Complaint alleges four separate incidents of Edgar S. Searcy engaging in acts constituting prostitution. There is also an additional allegation that Edgar S. Searcy did arrange for a minor child to engage in an act of lewdness and prostitution which occurred in 1990. Therefore, at this time the Petitioner has requested that the acts specified in the Administrative Complaint, specifically paragraphs 2(a)-(d), be consolidated and amended to read as follows:

On or between March 21, 1988, and November 5, 1990, Respondent, Edgar S. Searcy, did unlawfully engage in an act of prostitution.

Finding no prejudice to the Respondent, the motion is GRANTED. Key Biscayne Council v. State of Florida, Department of Natural Resources, 579 So.2d 293 (Fla. 3d DCA 1991).

The proposed findings have been given careful consideration and have been incorporated where appropriate. Specific rulings on proposed findings of fact are addressed in the Appendix attached to this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on March 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active.

   
   

2. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department.

   
   

3. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy.

   
   

4. On both occasions, Officer Searcy paid May $10.00 for her services.

   
   

5. Officer Searcy was on duty and in uniform during both of these occurrences.

   
   

6. Colleen McCoy performed oral sex on Officer Searcy in exchange for

   $5.00 on one occasion in 1990.

7. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her

   $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

9. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085-943.255, Florida Statutes, (1989), and is authorize to discipline those licensed thereunder who violate the law.

   
   

10. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Section 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Section 943.13, Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

    Section 943.1395(5) provides:

    
    

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

    
    

    Section 943.1395(6)(1989), Florida Statutes, establishes certain lesser penalties for violations in appropriate cases.

    
    

12. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are entirely dissimilar to the instant case, the court's definition of moral character is significant.

    
    

    Moral character as used in this 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.

    Such definition should be used in the case before this tribunal. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of "good moral character," in a case involving admission to the bar,

    
    

    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.

    
    

    See also, White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).

    
    

13. Rule 11B-27.0011(4)(b), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 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:

    1. The perpetration by the Officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

       Section 796.07: Prostitution or

    2. 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.

    
    

14. In the case at bar, clear and convincing evidence established that Lois May and Colleen McCoy gave credible statements concerning their acts of prostitution involving Officer Searcy.

    
    

15. The Respondent, on the other hand, maintained that this group of prostitutes conspired to get rid of him because his presence in the neighborhood disrupted the trafficking of drugs. During cross-examination, Officer Searcy admitted that he had no evidence of such a conspiracy, and that it was mere speculation on his part. He further admitted that he spent anywhere from five to thirty minutes in that neighborhood during the course of his eight-hour work day, and that during such time he was sitting in his patrol car. It is inconceivable that his presence in the area for such a short length of time would disrupt drug activity to the point where a group of prostitutes would ban together, and perjure themselves in order to get rid of this "nuisance." His defense was further eroded when Officer Searcy admitted that on occasions he possessed a condom while on official duty in the event the situation arose when he would need it. This indicates that he was not adverse to engaging in sexual activity while on duty.

16. Respondent had good evaluations of his police work up to the time of these incidents. Nevertheless, the position of law enforcement officer is one of great public trust. There can be no more basic public expectation than that those who enforce the law must themselves obey the law. City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1989). The seriousness of the Respondent's misconduct merits revocation of his law enforcement officer certification.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good

moral character, as required by Subsection 943.13(7), Florida Statutes (1989),

and that Respondent's certification be REVOKED.

DONE AND ENTERED this 6th day of January, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 6th day of January, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8

Respondent's proposed findings of fact.

Accepted in substance: none

Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4

COPIES FURNISHED:

Michael Ramage General Counsel

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Steve Brady

Regional Legal Advisor

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore Commissioner

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Doris Hundley

Qualified Representative Edgar S. Searcy

490 East Plum Avenue Chipley, Florida 32428

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 93-002709

Orders for Case No: 93-002709