STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4505

)

ZEDRICK D. BARBER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West Palm Beach, Florida, on June 1 and 2, 1995, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

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

For Respondent: Frederick W. Ford, Esquire

900 East Indiantown Road, Suite 216

Jupiter, Florida 33477 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of several alleged acts of misconduct set forth in an Administrative Complaint. The Administrative Complaint asserts, in material part, that on three separate occasions the Respondent threatened to do violence to the person of specified individuals at times when he had the apparent ability to do so.

PRELIMINARY STATEMENT

At the hearing on June 1 and 2, 1995, the Petitioner and the Respondent both called numerous witnesses 1/ and the Respondent also testified on his own behalf. The Petitioner and the Respondent also both offered numerous exhibits.

During the course of the formal hearing the Petitioner voluntarily dismissed the charges alleged in paragraphs 2(c) and 2(e) of the Administrative Complaint and did not offer any evidence in support of those two allegations.

The allegations of misconduct on which evidence was offered read as follows:

2.(a) On or about May 17, 1987, Respondent, Zedrick D. Barber, did then unlawfully and intentionally threaten by word or act to do violence to the person of Officer James Christopher Carr of the Mangonia Park Public Safety Department, coupled with an apparent ability to do so.

2.(b) On or about November 20, 1987, Respondent, Zedrick D. Barber, did then unlaw- fully and intentionally threaten by word or act to do violence to the person of Lt. Steve Wiesen of the Riviera Beach Police Department, coupled with an apparent ability to do so.

* * *

2.(d) On or about May 5, 1988, Respondent, Zedrick D. Barber, did then unlawfully and intentionally threaten by word or act to do violence to the person of former Police Chief Frank M. Walker, III, of the Riviera Beach Police Department, coupled with an apparent ability to do so.

At the conclusion of the formal hearing the parties requested, and were granted, thirty days from the filing of the transcript within which to submit their proposed recommended orders. The transcript of the formal hearing was filed with the Hearing Officer on July 17, 1995. Counsel for all parties were reminded in writing that the deadline for the filing of proposed recommended orders would be August 16, 1995. On August 10, 1995, the Respondent filed a motion seeking an extension of time for the filing of his proposed recommended order. The Petitioner joined in the motion. The motion was granted and a new deadline of September 1, 1995, was established.

On September 1, 1995, both parties served their respective proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto. By way of introduction to the Findings of Fact which follow, it is noted that the Hearing Officer has in most instances omitted many of the details proposed by both parties. The findings which follow are, for the most part, limited to the crux of each of the three incidents on which evidence was offered.

FINDINGS OF FACT

Findings on general matters

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer.

   
   

   Findings regarding the Mangonia Park incident

2. During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr.

   
   

3. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective.

   
   

4. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit.

   
   

5. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs.

   
   

6. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other.

   
   

   Findings regarding the Lt. Wiesen incident

   
   

7. On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued

   to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt.

   Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing.

   
   

   Findings regarding the Chief Walker incident

   
   

8. During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion.

   
   

9. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

11. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    1. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

       
       

       We therefore hold that clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

       above

       following at page 958:

       
       

       "Clear and convincing evidence" is an inter- mediate standard of proof, more than the " preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

       
       

12. Pursuant to Section 943.1395(7), Florida Statutes, the Criminal Justice Standards and Training Commission may impose various specified penalties "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). "

    
    

13. The Respondent argues that none of the three alleged "threats" by Respondent constitute failure to maintain "good moral character" as that term was defined in Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code, at the time of the events alleged in the Administrative Complaint. 5/ At all times material, Rule 11B-27.0011(4), Florida Administrative Code, provided, in pertinent part, as follows:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enume- rated in Subsection 943.1395(5) or (6) [now Subsections (6) and (7)], 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 of the follow- ing misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 117.03, 316.1935, 409.325, 552.22(3), (4), (5), (7), (10), 784.011, 784.03, 784.05(2), 709.01(1), 790.10, 790.17, 790.18, 790.24, 790.27, 794.027, 796.06, 796.07, 800.02, 800.03, 806.101, 806.13, 810.08, 812.014(1)(d), 812.016, 812.081, 812.14, 817.235, 817.39, 817.49, 817.563, 817.565, 827.04(2),(3), 827.05, 827.06, 828.122,

       831.30, 831.31(1)(b), 832.041, 832.05(2),

       (4), 837.012, 837.05, 837.06, 839.20, 843.02,

       843.06, 843.08, 843.13, 843.17, 847.011(1),

       (2), (4), 847.0125(2), 847.013(2), 847.06,

       847.07, 856.021, 870.01, 870.02, 876.17,

       876.18, 893.13(1)(a)3., (1)(d)3., (1)(g),

       (2)(a), (2)(b), 914.22(2), 944.35(3), 944.35

       (7)(a), 944.37, F.S., 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. Respondent is charged with having "unlawfully and intentionally threatened by word or act to do violence to the person(s)" enumerated in the charges, "coupled with an apparent ability to do so." The act of threatening to do harm is not a crime under any of the statutes enumerated in Rule 27.0011(4)(b), Florida Administrative Code. There is no Florida statute making a simple threat to do harm a crime. The only statute enumerated in paragraph (4)(b) which mentions "threats" is Section 784.011, Florida Statutes, which defines the offense of "assault." Section 784.011 provides:

    
    

    1. An "assault" is an intentional, unlawful threat by word or act to do physical violence to the person of another, coupled with the apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

       
       

15. With regard to each of the three events at issue in this case, the Administrative Complaint does not allege, and the evidence does not establish, that the Respondent did any act which created a well-founded fear that violence was imminent. "Mere intention or opportunity to commit an assault is not enough for conviction. There must be some overt act sufficient to demonstratea threat directed at the person placed in fear." Battles v. State, 288 So.2d 573 (Fla. 2d DCA 1974), cert. denied., 295 So.2d 302. See also, Bailey v. State, 76 Fla. 230, 79 So. 639 (1918) ("An 'assault' is an intentional attempt by violence to injure the person of another, and there must be an attempt to carry the intention into immediate execution."). Without allegation and proof of some overt act on the part of Respondent, Petitioner has failed to establish a violation of Rule 11B-27.0011(4)(b), Florida Administrative Code.

    
    

16. With regard to the allegation that the Respondent's conduct comes within the meaning of Rule 11B-27.0011(4)(c), Florida Administrative Code, it is first noted that the Administrative Complaint does not specifically allege whether the Respondent's conduct causes substantial doubts about his "honesty," about his "fairness," about his "respect for the rights of others," or about his "respect . . . for the laws of the state and nation." 6/ It has been assumed that the Petitioner intended to allege that the Respondent's conduct raised substantial doubts about all four of the matters listed in the subject rule provision. For the reasons summarized immediately below, the evidence is insufficient to establish that the Respondent's conduct came within the meaning of Rule 11B-27.0011(4)(c).

    
    

17. The Respondent's conduct in the three incidents described in the foregoing Findings of Fact simply do not raise any substantial doubts about the Respondent's "honesty," "fairness," or "respect . . . for the laws of the state and nation." It has been neither charged nor proved that he did anything dishonest or unfair. There is no charge nor proof that the Respondent violated any laws, intended to violate any laws, or showed any lack of respect for any laws. Similarly, the Respondent's conduct in the subject incidents does not raise any substantial doubts concerning his "respect for the rights of others."

It cannot be doubted that he acted in a disrespectful and unpleasant manner towards Officer Carr, towards Lt. Wiesen, and towards Chief Walker, but his conduct did not show a lack of respect for their "rights." In sum: the Respondent's conduct in all three instances showed a lack of good judgement and a lack of common sense and common courtesy, but it did not show a lack of good moral character.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint.

DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 28th day of December, 1995.

ENDNOTES

1/ The witnesses are all listed in the transcript of the formal hearing. The disposition of all exhibits offered by the parties is also memorialized in the transcript.

2/ The Hearing Officer has not attempted to memorialize the exact text of most of the words that were said by Officer Carr and the Respondent during the fracas, partially because memorialization of their vulgarities would serve no useful purpose and partially because the Hearing Officer has serious doubts that any of the participants or witnesses to the fracas accurately remember everything that was said. The entire incident was a sudden emotional outburst that lasted only a couple of minutes and took place eight years before the hearing. Officer Carr, especially, appeared to be relying more on eight-year- old notes than on present memory.

3/ The Respondent mistakenly believed that the boundary between Mangonia Park and West Palm Beach ran down the middle of the street. In fact, the boundary ran down the sidewalk that was a few feet beyond the traffic lane in which the Respondent had stopped his automobile.

4/ The Respondent and Lt. Wiesen testified to different versions of what was said as they walked up the stairs. The quoted statement is based on the Respondent's testimony. Lt. Wiesen's testimony was that the Respondent's comment as they walked up the stairs began with the words, "People that fuck with me," and ended with the word, "dead," and included one or more unintelligible words before the word, "dead." Without knowing what those

unintelligible words were, neither Lt. Wiesen nor anyone else could be sure that the Respondent's comments constituted a threat directed at Lt. Wiesen.

Accordingly, there is no clear and convincing evidence of any arguably threatening statement on the stairs other than that to which the Respondent admitted.

5/ The parties stipulated that the applicable version of Rule 11B- 27.0011, Florida Administrative Code, would be the version in effect at the time of the events alleged in the Administrative Complaint.

6/ Because of this lack of specificity, the charge that the Respondent has engaged in conduct within the meaning of Rule 11B- 27.0011(4)(c), Florida Administrative Code, is arguably insufficient for lack of specificity.

Respondents in cases involving the possible loss of a license are entitled to notice of the charges against them in sufficient detail to be able to have a reasonable opportunity to prepare their defenses. In view of the disposition of the other issues in this case, it is not necessary to decide whether the notice to the Respondent was sufficient.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 94-4505

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner: Paragraphs 1 through 4: Accepted.

Paragraphs 5 and 6: Accepted in substance, but with most details omitted

as unnecessary.

Paragraph 7: All but last sentence is accepted in substance, but with most details omitted as unnecessary. Last sentence is rejected as not fully consistent with the greater weight of the evidence.

Paragraphs 8 through 12: Accepted in substance, but with most proposed details omitted and with some additional details in the interest of clarity.

Paragraphs 13 through 15: Accepted in substance, but with most proposed details omitted and with some additional details in the interest of clarity.

Paragraph 16: First two sentences accepted in substance. Last sentence rejected as not fully supported by clear and convincing evidence and as contrary to the greater weight of the evidence. (The Respondent's version of this incident has been credited over Lt. Wiesen's version.)

Paragraph 17: Rejected as not fully supported by clear and convincing evidence.

Paragraph 18: Rejected as subordinate and unnecessary details or as irrelevant.

Paragraphs 19 through 22: Accepted in substance with most details omitted as unnecessary.

Paragraph 23: First two sentences accepted in substance. Last sentence rejected in part as incomplete and in part as inconsistent with the greater weight of the evidence.

Paragraph 24: First sentence accepted in substance. Second sentence rejected as not supported by clear and convincing evidence.

Paragraph 25: First sentence rejected as irrelevant, because the Respondent was not armed and did not appear to be armed. Second sentence rejected as not supported by clear and convincing evidence.

Paragraph 26: Rejected as subordinate and unnecessary details or as irrelevant.

Proposed findings submitted by Respondent:

The proposed findings submitted by the Respondent are contained in three separate sections, each section of which begins a new sequence of numbered paragraphs. They are addressed in order below.

Proposed findings regarding the Mangonia Park incident

Paragraphs 1 through 10: The vast majority of the findings proposed in these paragraphs, while supported by the evidence, are rejected as subordinate and unnecessary details.

Paragraphs 11 through 23: Accepted in substance, but with a number of unnecessary details omitted and a few additional details in the interest of clarity.

Paragraphs 24 through 26: The vast majority of the findings proposed in these paragraphs, while supported by the evidence, are rejected as subordinate and unnecessary details.

Paragraph 27: Rejected as subordinate and unnecessary details or as irrelevant.

Proposed findings regarding the Lt. Wiesen incident

Paragraphs 1 through 7: The vast majority of the findings proposed in these paragraphs, while supported by the evidence, are rejected as subordinate and unnecessary details.

Paragraphs 8 through 10: Accepted in substance with some additional clarifying details.

Paragraph 11: Rejected as subordinate and unnecessary details or as irrelevant. Also rejected in part because some details are not fully supported by the greater weight of the evidence.

Proposed findings regarding the Chief Walker incident

Paragraphs 1 through 9: The vast majority of the findings proposed in these paragraphs, while supported by the evidence, are rejected as subordinate and unnecessary details.

Paragraphs 10 through 15: Accepted in substance with some unnecessary details omitted and with some additional details in the interest of clarity.

Paragraph 16: Rejected as subordinate and unnecessary details or as irrelevant.

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Frederick W. Ford, Esquire 900 East Indiantown Road Suite 216

Jupiter, Florida 33477

1. Leon Lowry, II, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire General Counsel

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: 94-004505

Orders for Case No: 94-004505