STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3381

)

RALPH E. CARR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Sebring, Florida, on October 22, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Dawn P. Whitehurst

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Attorney Linda Rodriguez-Torrent

3750 US 27 North, Suite 12

Sebring, Florida 33870 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of a lack of good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint executed August 6, 1992, Petitioner alleged that on or about December 27, 1991, Respondent, as a correctional officer, unlawfully touched and caused bodily harm to two inmates and thereby violated the statutory requirement that he have good moral character.

By an Election of Rights executed August 19, 1992, Respondent requested a formal hearing. Petitioner referred the file to the Division of Administrative Hearings ten months later.

At the final hearing, Petitioner called four witnesses and offered into evidence no exhibits. Respondent called five witnesses and offered into evidence two exhibits, both of which were excluded.

The transcript was filed November 8, 1993. Each party filed a proposed recommended order, and rulings on Petitioner's proposed findings are in the appendix. Respondent's proposed findings are rejected as recitation of evidence.

FINDINGS OF FACT

1. Respondent was certified by Petitioner as a law enforcement officer on June 4, 1985, and was issued certificate number 32-85-502-02. The certificate has remained current through the present.

   
   

2. Respondent served as a correctional officer for the Highlands County Sheriff's Office for about seven years, until he resigned shortly after the incident described below. At the time of this resignation, he was a corporal.

   
   

3. Throughout his employment with the Highlands County Sheriffs Office, Respondent has been a model correctional officer. Unlike some correctional officers at the County jail, Respondent is not overbearing with the inmates, but frequently finds the time to try to help them with their problems. He does not swear publicly or privately. He is 5' 9" and weighs 185 pounds.

   
   

4. In late December, 1991, a large number of inmates were housed in the Highlands County jail. The juvenile cellblock in particular was at capacity, and there was no place to isolate individual juvenile inmates from other juvenile inmates.

   
   

5. At the time, the juvenile cellblock contained four juveniles: E. M.,

   O. M., C. S., and C. L. Except for C. S., the juveniles are all between 5' 7" and 5' 9" and 140-150 pounds. C.S. stands 6' 2" and weighs about 200 pounds.

   
   

6. Except for C. L., the juveniles had been causing trouble in the cellblock. They had flooded the cellblock, destroyed a television, and engaged in other disruptive behavior. E. M. and O. M. had also been threatening to rape and batter C. L., who is intellectually challenged and physically vulnerable to the other juveniles.

   
   

7. After receiving reports of the threats, Respondent ordered that E. M.,

   O. M., and C. S. be brought downstairs from their cellblock to the booking office where Respondent worked. A correctional officer brought the juveniles to Respondent and lined them up near a wall.

   
   

8. Respondent questioned the juveniles in the hallway in the booking office. This is a crowded, busy area. He questioned them in the presence of the correctional officer who had brought the juveniles down and within a few feet of several other correctional officers and other employees of the Highlands County Sheriffs Office.

   
   

9. Respondent was unaware that C. S. had played no role in threatening C.

   L. Respondent's questioning of C. S. was uneventful.

10. In questioning O. M. and E. M., however, Respondent was unable to communicate to them the importance of good behavior in the cellblock.

    Reasonably fearing that the juveniles might carry out their threats to injure C. L., Respondent became more insistent that they behave themselves.

    
    

11. Instead of indicating a willingness to obey Respondent's orders not to harm the other juvenile, O. M. and E. M. defiantly leaned into Respondent's face, clearly conveying their rejection of his demand for their cooperation. When O. M. tried to walk by Respondent, Respondent, who is right-handed, lightly tapped O. M. in the side of his head so as to cause him to remain where Respondent could address him.

    
    

12. There is insubstantial evidence that Respondent also touched E. M. However, even if he did touch E. M. to get his attention, Respondent did so in an even lighter fashion than he touched O. M.

    
    

13. Without further physical contact, Respondent, now in a louder tone, emphasized that he wanted the juveniles to behave and demanded that they not bother C. L. again.

    
    

14. Neither O. M. nor E. M. was in any way injured by any physical contact with Respondent. Any physical contact on Respondent's part never threatened physical or emotional harm to O. M. or E. M.

    
    

15. Sometime after the above-described incident, following an investigation, the Highlands County Sheriffs Office allowed Respondent to resign rather than face termination. Respondent resigned rather than contest the matter.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

17. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

18. Section 943.13(7) requires that an officer maintain good moral character. For a failure to maintain good moral character, Section 943.1395(7) provides that Petitioner may revoke a certificate, suspend a certificate for up to two years, place the officer on probation for up to two years, require additional training, and issue a reprimand.

    
    

19. Rule 11B-27.0011(4)(b) defines the failure to maintain good moral character as, among other things, a violation-- regardless whether prosecution was attempted--of any one of 81 statutory sections or subsections, including Section 784.03.

    
    

20. Section 784.03 provides that a person commits misdemeanor battery if he "[a]ctually and intentionally touches or strikes another person against the will of the other; or [i]ntentionally causes bodily harm to an individual."

21. In D.C. v. Florida, 436 So. 2d 203 (Fla. 1st DCA 1983), the court reviewed a case that

    
    

    presents a perfect example of a disturbing societal proclivity toward settling all disputes through resort to a severely overburdened judicial system. In summary, we are asked to review a juvenile court order finding that the defendant, a 13 year old boy, committed the crime of battery when he engaged in a brief scuffle with the alleged victim, an 8 1/2 year old boy. The scuffle, in which neither boy was hurt, began when the defendant tossed a forkful of ravioli in the direction of the victim and ended a minute or two later with the defendant holding the victim in a loose headlock for several seconds. . . .

    
    

    Id. at p. 204.

    
    

22. In addressing the issue whether Section 784.03 was intended to punish "harmless child's play," the court stated: "we cannot impose our preferences on the discretion of the trial judge . . .. The trial judge acted within his discretion in finding that the defendant committed the offense of battery." Id. at pp. 205-06. Considering and rejecting the argument that the defendant acted in self defense, the court reluctantly affirmed the conviction.

    
    

23. Twice, the D.C. court refers to the discretion of the trial judge. The clear implication is that the finder of fact has the discretion not to characterize trivial, though intentional, contact as battery. This implication is consistent with the time-honored principle that lex non curat de minimis, which means, according to Black's Law Dictionary that "the law does not care about trifles."

    
    

24. The contact in this case is trivial and does not rise to battery.

    
    

25. In addition, 776.012 provides for the use of nondeadly force "against another when and to the extent that [a person] reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." The person using force in defense of self or other must reasonably believe that such force "is necessary to prevent imminent death or great bodily harm . . . or to prevent the imminent commission of a forcible felony."

    
    

26. The contact in this case was required to capture the attention of juveniles who had threatened to commit a forcible felony against another juvenile, had ample opportunity to achieve their stated objective, and had recently demonstrated a disregard for the law.

    
    

27. In fact, the contact in this case is more of the nature of a firm grasp of an arm in order to capture the listener's attention. The contact was not intended to injure or even insult. The contact was intended to spare the "victim" of Respondent's alleged "battery" from further trouble that would clearly have ensued if the juveniles had been allowed to ignore Respondent's reasonable warnings and inflict serious harm upon C.L. Once Respondent elected not to ignore the juveniles' threats, he had few realistic options, especially

    after it was evident that they did not take seriously his attempt to talk to them. Respondent had no other place to put the misbehaving juveniles.

    Obviously, arresting them would have been futile, as they were already in jail. The casual contact that took place prevented a serious crime from occurring, required little in the way of the Sheriff Department's already-stretched resources, did not rise to the level of a battery, and did not constitute evidence of a lack of good moral character.

    
    

28. Although not cited in the Administrative Complaint, Rule 11B- 27.0011(4)(c) also defines the failure to maintain good moral character as

    
    

    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. Rule 11B-27.0011(4)(c) provides an excellent definition of good moral character, especially for law enforcement officers. This rule allows for measured consideration of an act or omission in context. A trivial act committed by an officer with a good record of respecting inmates does not, as a practical matter, constitute a sound basis for finding that he lacks good moral character.

    
    

30. For the reasons stated above, Petitioner has failed to prove any violation of any statute or rule and has generally failed to prove that Respondent lacks good moral character.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint.

ENTERED on November 22, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on November 22, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3381

Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance.

7: rejected as unsupported by the appropriate weight of the evidence.

8: rejected as irrelevant. The relevant behavior of the juveniles is described in the order.

9: adopted or adopted in substance. 10: rejected as irrelevant.

11: rejected as irrelevant and subordinate. The only apology from Respondent pertained to his becoming agitated orally--not physically.

12: rejected as irrelevant.

COPIES FURNISHED:

A. Leon Lowry, II Director

Criminal Justice Standards Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore Commissioner

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

Michael Ramage

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

Dawn P. Whitehurst, Assistant General Counsel Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Attorney Linda Rodriguez-Torrent 3750 US 27 North, Suite 12

Sebring, Florida 33870

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: 93-003381

Orders for Case No: 93-003381