STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6350

)

MARK A. PRUITT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on February 9, 1995 before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Eyal I. Friedman, Esquire

1. P. Walter, Jr., P. A.

235 Catalonia Avenue

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the offenses set forth in the Administrative Complaint, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

Petitioner Criminal Justice Standards and Training Commission, Florida Department of Law Enforcement (Petitioner) filed an Administrative Complaint against Respondent Mark A. Pruitt (Respondent) on November 19, 1993. The Administrative Complaint alleged that Respondent violated Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code. On January 14, 1994, Respondent filed a request for a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Petitioner referred this case to the Division of Administrative Hearings on November 2, 1994.

The undersigned heard this case on February 9, 1995. Petitioner presented the testimony of four (4) witnesses and offered thirteen (13) exhibits into evidence. Respondent testified on his own behalf and offered one (1) exhibit into evidence. At the conclusion of the hearing, the undersigned granted both parties' motions to file posthearing submissions. On February 21, 1995, Petitioner filed a certified copy of Pierre Charette's testimony in State of Florida v. Mark Allen Pruitt, Crimes Division Case Number 92-54096, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On February 23, 1995, Respondent filed a copy of the entire jury trial transcript dated November 10-11, 1995, of the above referenced criminal trial.

A transcript of the formal hearing was filed with the Division of Administrative Hearings on March 13, 1995. Petitioner file proposed findings of fact and conclusions of law on March 22, 1995. Respondent filed proposed findings of fact and conclusions of law on March 23, 1995. The undersigned has addressed each of the parties' proposed findings of fact in the appendix of this Recommended Order.

FINDINGS OF FACT

1. Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982.

   
   

2. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County.

   
   

3. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry.

   
   

4. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places.

   
   

5. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway.

   
   

6. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour.

   
   

7. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left.

   
   

8. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane

   even though the traffic was flowing smoothly and there were no obstacles blocking the roadway.

   
   

9. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent.

   
   

10. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle.

    
    

11. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision.

    
    

12. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars.

    
    

13. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway.

    
    

14. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down.

    
    

15. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop.

    
    

16. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down.

    
    

17. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle.

    
    

18. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway.

    
    

19. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder.

    
    

20. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent.

21. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way.

    
    

22. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit.

    
    

23. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour.

    
    

24. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices.

    
    

25. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour.

    
    

26. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc.

    
    

27. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated.

    
    

28. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent.

    
    

29. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc.

    
    

30. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle.

    
    

31. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were.

    
    

32. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business.

    
    

33. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center.

    
    

34. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help.

    Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner.

    
    

35. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars.

    
    

36. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials.

    
    

37. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang.

    
    

38. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free.

    
    

39. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman.

    
    

40. One of the officers took Respondent's badge and identification from his rear pocket.

    
    

41. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him.

    
    

42. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer.

    
    

43. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped.

    
    

44. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for

    advice. Respondent's brother, David Pruitt, was in the shop when these calls were made.

    
    

45. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette.

    
    

46. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.

    
    

    CONCLUSIONS OF LAW

    
    

47. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

48. Section 943.13, Florida Statutes, sets forth the minimum qualifications for law enforcement officers including a requirement that all officers "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission." Section 943.13(7), Florida Statutes.

    
    

49. Petitioner has the burden of proving by clear and convincing evidence that Respondent has failed to maintain good moral character as defined in Rule 11B-27.0011(4), Florida Administrative Code. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987); Newberry v. Florida Dept. of Law Enforcement, Criminal Justice Standards and Training Commission, 585 So. 2d 500, 501 (Fla. 3rd DCA 1991).

    
    

50. Rule 11B-27.0011(4), Florida Administrative Code, states in pertinent part:

    
    

    (4) For purposes of the Commission's implementation of any of the penalties enumerated in Rule (sic) subsection 943.1395(6) or (7), F. S., a certified officer's failure

    to maintain good moral character, as required by Rule (sic) subsection 943.13(7), F. S., 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: sections . . . 784.03, [Florida Statutes, Battery] . . .

       * * *

    2. The perpetration by the officer of an act or conduct which:

    1. significantly interferes with the rights of others; or

    2. significantly and adversely affects the functioning of the criminal justice system or an

       agency thereof; or

    3. shows disrespect for the laws of the state or nation; or

    4. causes substantial doubts concerning the officer's moral fitness for continued service; or . . . .

    
    

51. Petitioner has met its burden of proving by clear and convincing evidence that Respondent is guilty of violating Section 784.03(1), Florida Statutes, which defines battery:

    
    

    1. A person commits battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

       
       

       Respondent failed to maintain good moral character as defined by Rule 11B- 27.0011(4)(b) and (c), Florida Administrative Code, when he committed battery by shoving Marshal Menendez without any provocation.

       
       

52. Petitioner has met its burden of proving by clear and convincing evidence that Respondent is guilty of violating Section 316.192(1), Florida Statutes, which defines reckless driving:

    
    

    1. Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

       
       

       Record evidence indicates that Respondent willfully endangered the lives of other motorists and showed disrespect for the law when he attempted to evade Sergeant Petri and Special Agent Charette. Consequently, Respondent has failed to maintain good moral character as defined in Rule 11B-27.0011(4)(c), Florida Administrative Code.

       
       

53. Section 943.1395(7), Florida Statutes, gives the Criminal Justice Standards and Training Commission (Commission) authority to discipline certified officers who fail to maintain good moral character. Penalties may include revocation, suspension, probation and/or a reprimand. Section 943.1395(7), Florida Statutes.

    
    

54. Rule 11B-27.005, Florida Administrative Code, sets forth the range of disciplinary guidelines and penalties as well as aggravating and mitigating circumstances which the Commission may consider.

    
    

55. Absent aggravating or mitigating circumstances, the recommended penalty range for battery (Section 784.03, Florida Statutes) is suspension of the officer's certification. Rule 11B-27.005(3)(b), Florida Administrative Code.

    
    

56. The recommended penalty for conduct which is described in Rule 11B- 27.0011(4)(c), Florida Administrative Code, ranges from the issuance of a reprimand to revocation of certification. Rule 11B-27.005(3)(c), Florida Administrative Code. There is no specified penalty for reckless driving.

57. Pursuant to Rule 11B-27.005(4), Florida Administrative Code, the undersigned has considered the following aggravating circumstances: (1) two counts of misconduct; (2) misconduct involving two misdemeanors; (3) significant danger to the public; and (4) the deterrent effect of the penalty imposed.

    
    

58. In mitigation of the penalty, the undersigned has considered: (1) misconduct not committed in the course of duty; (2) no prior disciplinary actions; (3) certified for ten years; (4) no actual damage, physical or otherwise, to other persons; (5) effect on livelihood. Rule 11B-27.005(4), Florida Administrative Code.

    
    

59. Weighing the above referenced factors, the appropriate penalty for Respondent's misconduct is suspension of certification and the privilege of employment as an officer for a period of two years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994.

SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Petitioner's Proposed Findings of Fact

1.- 3 Accepted in paragraphs 1-2.

4 - 6 Accepted in paragraphs 3-4.

7 - 16 Accepted in substance in paragraphs 5-8.

17 - 22 Accepted in substance in paragraphs 9-12.

23 - 32 Accepted in substance in paragraphs 14-17.

33 - 39 Accepted in substance in paragraphs 19-22.

40 - 48 Accepted in paragraphs 23-27.

49 - 61 Accepted in substance in paragraphs 28-32.

62 - 75 Accepted in substance in paragraphs 33-37.

76 - 87 Accepted in substance in paragraphs 38-40.

88 - 93 Accepted in substance in paragraphs 41-46.

Respondent's Proposed Findings of Fact

1 - 4 Accepted as if incorporated in paragraphs 1-2.

1. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence.

2. - 9 Rejected. No competent substantial persuasive evidence.

1. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop.

2. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence.

13 - 15 Accepted in substance as modified in paragraphs 31-36.

1. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36.

2. Rejected as not supported by competent substantial persuasive evidence.

3. Accepted as modified in paragraph 39; the other officers did not "join the attack."

4. Rejected as not supported by competent substantial persuasive evidence.

5. Accepted in paragraphs 39-40.

6. Rejected as not supported by competent substantial persuasive evidence.

7. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence.

8. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers.

COPIES FURNISHED:

Karen D. Simmons

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

A. P. Walter, Jr., Esquire

235 Catalonia Avenue

Coral Gables, Florida 33134

A. Leon Lowry, II, Director

Div of Crim. Just. Stds. & Trng.

P. O. Box 1489

Tallahassee, Florida 32302

Michael Ramage General Counsel

P. O. Box 1489

Tallahahssee, 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs CASE NUMBER: L3202

DOAH NUMBER : 94-6350

MARK A. PRUITT,

Certificate No.: 02-31445

Respondent.

/

FINAL ORDER

This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on October 27, 1995, in Daytona Beach, Florida. It was alleged by Administrative Complaint that the Respondent had violated specified sections of Chapter 943, Florida Statutes, and Chapter 11B-27, Florida Administrative Code. In accordance with s 120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was submitted by a Hearing Officer from the Division of Administrative Hearings (DOAH) to the Commission for consideration. Respondent and Petitioner filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.

The Commission has reviewed the Administrative Complaint, the Recommended Order, the exceptions filed by Respondent, the transcript of the formal hearing, the documentary evidence introduced at the formal hearing, and other pertinent documents in the case file, has heard arguments of counsel; and is otherwise fully advised in the matter. The Commission finds as follows:

1. Standards for Review

   
   

   Under s120.57(1)(b)10, Florida Statutes, the Commission may reject or modify the Hearing Officer's conclusions of law and interpretations of administrative rules in the Recommended Order. The Commission, however, may not reject or modify the Hearing Officer's findings of fact unless the Commission determines from a review of the complete record that 1) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with the essential requirements of the law.

   
   

   The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), defined "competent substantial evidence" to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."

   
   

   Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

   
   

   Nor may the Commission reduce or increase the recommended penalty in the Recommended Order without first reviewing the complete record. s120.57(1)(b)10, Florida Statutes.

   
   

2. Rulings on Exceptions

   
   

   1. Respondent has filed a general exception to practically all of the disputed facts that the Hearing Officer resolved adversely to Respondent.

      Before the Commission, Respondent's counsel agreed that the Commission could not disturb the Hearing Officer's findings of fact absent a showing that a particular finding was not supported by competent substantial evidence or that the proceedings did not comply with the essential requirements of the law.

      Respondent has made no showing that would allow the Commission to reject the Hearing Officer's findings of fact. Therefore, the commission rejects Respondent's generalized exception to the Hearing Officer's findings of fact.

      
      

   2. Both Respondent and Petitioner except to the Hearing Officer's recommendation, Respondent requested that the Commission lower the penalty suggested in the recommendation, and Petitioner requested that the Commission reject the Hearing Officer's recommendation and revoke Respondent's law enforcement certification. After hearing from counsel from both parties and reviewing the facts of the case, the Commission rejects Respondent's exception to the Hearing Officer's recommendation as well as the recommendation itself.

      
      

3. Findings of Fact

   
   

   The Hearing Officer's findings of fact in paragraphs 1 through 46 of the Recommended Order are approved, adopted and incorporated herein by reference.

   
   

4. Conclusions of Law

The Hearing Officers conclusions of law in paragraphs 47 through 58 of the Recommended Order are approved, adopted and incorporated herein by reference.

However, the Commission rejects the Hearing Officer's weighing of aggravating and mitigating factors in paragraph 59.

The Commission, exercising its special expertise in the criminal justice disciplines, finds that Respondent's multiple moral character violations and the other aggravating factors in this case, as found by the Hearing Officer in paragraph 57, are sufficiently serious to justify departing from the Commission's penalty guidelines and revoking Respondent's law enforcement certification. See CJSTC v. Bradley, 596 So.2d 661 (Fla. 1992). It should be noted that, but for the fact that federal law enforcement officers do not fall within the ambit of s784.07, Florida Statutes, Respondent's conduct as found by the Hearing Officer would constitute a third-degree felony. This Commission will not countenance such conduct.

It is therefore ORDERED AND ADJUDGED that the Respondent's above referenced criminal justice certification is hereby REVOKED.

This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.

SO ORDERED this 7th day of December, 1995. CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION

WILLIAM A. LIQUORI CHAIRMAN

NOTICE

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

Docket for Case No: 94-006350

Orders for Case No: 94-006350