STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE )

STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 94-1207

)

MARSHALL B. DOYLE, )

)

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 October 27, 1994, in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Amy J. Bardill, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: George Turner, Esquire

932 South Wickham Road

West Melbourne, Florida 32904 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, in violation of Rule 11B-27.0011, Florida Administrative Code.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on September 10, 1993, charging that Respondent failed to maintain good moral character by using unnecessary force and making a false statement. Respondent demanded a formal hearing by filing an Election of Rights, dated October 6, 1993. This matter was referred to the Division for formal hearing on March 7, 1994. Following discovery and various continuances requested by the Petitioner, the formal hearing was held.

Prior to the hearing, the parties executed a Prehearing Stipulation in which certain facts were admitted and required no proof at the formal hearing. At the hearing, the Petitioner presented the testimony of four witnesses, and

two exhibits were admitted in evidence without objection; the document marked for Identification as Exhibit A was excluded. Respondent presented the testimony of three witnesses and testified himself. One exhibit was admitted in evidence.

The proceedings were recorded but not transcribed. Petitioner filed its Proposed Findings of Fact and Conclusions of Law on November 28, 1994.

Respondent filed his proposed findings on November 8, 1994.

The proposed findings submitted by the parties 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 in 1981, as a law enforcement officer, Certification Number 113689, and at all time relevant, the certification was active.

   
   

2. On February 25, 1993, the Respondent was employed as a police officer with the Palm Bay Police Department and was on duty during the relevant time period.

   
   

3. Respondent had been a certified law enforcement officer for a period of sixteen (16) years in Nebraska and Florida.

   
   

4. On February 25, 1993, Officer Thomas Krieger while on duty arrested a suspect on several out of state felony warrants. The warrants consisted of serious violent offenses and the suspect's criminal history showed a history of violence.

   
   

5. The officer was concerned about the potential for violent actions by the prisoner. He contacted the dispatcher and requested assistance from another officer.

   
   

6. Respondent was on duty and responded to the request to assist Officer Krieger.

   
   

7. Respondent met him in the sally port at Police Headquarters. He assisted in the booking of the prisoner and placed him in Holding Cell E, one of five holding cells in the room.

   
   

8. Officer Krieger went and sat at the booking table near the computer which was approximately 25 to 30 feet away from the holding cell. It took approximately twenty minutes of continuous writing for Officer Krieger to complete his report.

   
   

9. Krieger could not see into the cell and did not hear the prisoner yelling or speaking from where he was sitting. He also could not hear Respondent very well when he spoke to the prisoner.

   
   

10. Officer Renkens arrived during this time with an intoxicated female, who had been arrested for DUI. She was loud and abusive during the booking process and after being placed in a cell.

11. The Booking Room area is acoustically unsound. The area is loud with constant noise from prisoners, officers, telephones, and other equipment.

    
    

12. Many individuals were entering and exiting the holding cell area. There were also numerous telephone calls coming in during the relevant period.

    
    

13. Dispatcher Lynn Bombriant observed Krieger's and Respondnet's prisoner on the TV monitor make obscene gestures and remarks as the female prisoner was walking through. She believed at the time that he was attempting to antagonize the female prisoner.

    
    

14. Bombriant observed the prisoner grab his crotch and make obscene gestures and actions.

    
    

15. Bombriant contacted Respondent several times and advised him that the actions being conducted by the prisoner were distracting and very crude in nature. She asked him to have the prisoner stop his crude behavior.

    
    

16. Respondent walked up to the prisoner numerous times and advised him to sit down and cease his actions. The prisoner refused to comply.

    
    

17. After numerous attempts to have the prisoner sit down and stop making obscene gestures and actions, Respondent advised him to step away from the door so he could enter the cell. The suspect refused after numerous requests.

    
    

18. Respondent opened the trap door and sprayed a chemical agent on the individual, striking him on the left side of his face. This forced him back from the door. He then went over the sink in the cell and washed out his eyes and walked around in the cell.

    
    

19. A number of minutes later Respondent entered the cell and handcuffed the prisoner.

    
    

20. Upon entering the cell, Respondent made no other physical contact with the prisoner except to handcuff the individual.

    
    

21. On February 25, 1993, there was a force continuum utilized by the Palm Bay Police Department which required that soft force be implemented after verbal commands were unsuccessful.

    
    

22. Soft force is considered either the use of handcuffs, pain compliance holds, or chemical agents.

    
    

23. There was no policy implemented by Palm Bay which required or set forth any guidelines for the use of chemical agents in the Booking Room until after February 25, 1993.

    
    

24. Respondent completed a brief supplemental report concerning the incident which report was attached to Officer Kreiger's report.

    
    

25. Although the supplemental report was hurriedly prepared, it did not contain material misrepresentations of fact.

    CONCLUSIONS OF LAW

    
    

26. 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.

    
    

27. 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, (1993), and is authorized to discipline those licensed thereunder who violate the law.

    
    

28. Revocation of license proceedings are penal in nature; State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973) and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So.2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983).

    
    

29. The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Hal Heifetz v. d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985). 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).

    
    

30. Section 943.13, Florida Statutes, establishes 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.

    
    

31. Section 943.1395(6), Florida Statutes (1993) provides:

    
    

    The Commission shall revoke the certification of any officer who ... intentionally executes a false affidavit established in s. 943.13(8), s. 493.133(2), or s. 943.139(2).

    
    

32. Section 943.1395(7)(1993), Florida Statutes, establishes certain lesser penalties for violations in appropriate cases.

    
    

33. 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.

    
    

34. 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).

35. 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(6) or (7) 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:

       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.

       
       

36. In the case at bar, clear and convincing evidence did not establish that Respondent used unnecessary or excessive force on the prisoner. Other officers may have ignored the prisoner's conduct or may have used other means to exercise control over the prisoner and have him cease his crude behavior. But that is not the test. Respondent did not violate departmental policy in effect at the time of the incident on the use of a chemical agent.

    
    

37. Respondent's supplemental report may have been hurriedly prepared and not fully accurate. However, its contents do not rise to the level where they can be considered as containing false statements.

    
    

38. No evidence was introduced which indicated that Respondent had other than good evaluations of his police work up to the time of these incidents.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be

DISMISSED.

DONE AND ENTERED this 22nd day of December, 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 22nd day of December, 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, 6, 8, 9 (in part), 11,

13, 21, 22, 24, 25, 26, 27, 38.

Rejected as against the greater weight of evidence: paragraphs 7, 9 (in part), 17, 20, 23, 29, 30, 31, 32, 37.

Rejected as subsumed, irrelevant or immaterial: pragraphs 10, 12, 14, 15,

16, 19, 28, 33, 34, 35, 36, 39, 40, 41, 42.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 6, 7, 8, 9 (in part), 10, 11, 12,

13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23.

Rejected as subsumed irrelevant or immaterial: paragraphs 3, 4, 5, 9 (in part).

COPIES FURNISHED:

Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

George Turner, Esquire 932 South Wickham Road

West Melbourne, Florida 32904

A. Leon Lowry, Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire General Counsel

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

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: 94-001207

Orders for Case No: 94-001207