Pursuant to written notice, a formal hearing was held in this case on September 26, 1996, at West Palm Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Karen D. Simmons
For Respondent: H.R. Bishop, Jr.
The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
On July 20, 1995, the Criminal Justice Standards and Training Commission (Petitioner) filed an administrative complaint against Walter Taylor (Respondent). Petitioner charged Respondent with violating Subsections 943.13(7) and 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(c), Florida Administrative Code, by failing to have good moral character. By an Election of Rights form, Respondent disputed the allegations of fact in the administrative complaint and requested a formal hearing. On January 10, 1996, this matter was referred to the Division of Administrative Hearings.
At hearing, Petitioner presented the testimony of four witnesses and entered 14 exhibits into evidence. Respondent testified on his own behalf and entered no exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact which have been considered in this recommended order.
On May 16, 1983, Walter Taylor (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner), having been issued Correctional Certificate Number 66856.
On December 23, 19851, Respondent was certified by Petitioner, having been issued Law Enforcement Certificate Number 66855.
At all times material hereto, Respondent was employed by the Riviera Beach Police Department (Riviera Beach PD) as a law enforcement officer.
In April 1994, Respondent and his wife were divorced. They had been married 14 years and had minor children.
Prior to the divorce, Respondent had several confrontations with his wife regarding her relationship with another man, a Mr. Chilton, whom she had met in or around 1988. During one confrontation in April 1993, Respondent slapped his then wife.
At times, Mr. Chilton was present when the confrontations took place. At no time prior to the divorce did Respondent harm or threaten to harm Mr. Chilton.
Subsequent to the divorce, Respondent’s ex-wife and Mr. Chilton continued their relationship.
In August 1994, Respondent wanted to attend his family’s reunion in New York but had insufficient funds to take his children with him. Respondent’s ex-wife agreed to attend the reunion with them. With her financial support, everyone could attend the reunion. Respondent and his ex-wife agreed to a pre- arranged time for them to meet on August 11, 1994, and drive to the reunion together.
On August 11, 1994, prior to the pre-arranged time, Respondent and his children were packed and ready to leave. Respondent attempted to contact his ex-wife, so they could depart early. He called several places but to no avail.
Having failed to locate his ex-wife, Respondent concluded that she was at Mr. Chilton’s apartment. Respondent called Mr. Chilton’s apartment several times only to get an answering machine. He drove to Mr. Chilton’s apartment. By this time, it was approximately 10:00 or 10:30 p.m.
When Respondent arrived at Mr. Chilton’s apartment complex, he observed both Mr. Chilton’s and his ex-wife’s vehicles in the parking area. Respondent knocked on Mr. Chilton’s apartment door but received no response. Having knocked from two to five minutes, Respondent left but stopped nearby at a telephone. He repeatedly called Mr. Chilton’s apartment and again the answering machine answered.
Respondent was convinced that his ex-wife was in Mr. Chilton’s apartment and that they were refusing to answer the telephone or the door. Respondent was upset and frustrated.
Respondent returned to Mr. Chilton’s apartment and began knocking again. The more he knocked, the more frustrated he became. His knocks became harder and louder until he was pounding the door. No one answered the door.
Respondent’s ex-wife and Mr. Chilton were afraid to open the door.
At all times, Mr. Chilton and the Respondent’s ex-wife were inside the apartment. The door was locked and the deadbolt was engaged.
Becoming more and more frustrated, Respondent hit the apartment door two or three times with both hands, arms raised, palms forward and with the weight of his body behind him. The force applied by Respondent knocked down the door.
Respondent entered Mr. Chilton’s apartment beyond the door frame. He told his ex-wife to come outside with him and talk. She immediately complied.
While exiting Mr. Chilton’s apartment, Respondent informed Mr. Chilton to bill him for the door.
The door to Mr. Chilton’s apartment was damaged beyond repair and the area surrounding the door was severely damaged. The dead bolt area on the door was bulged. The area on the door jam in which the dead bolt slid had popped and come loose and was indented. The door handle was very loose. The trim on the doorway was split.
On many occasions Respondent has been involved in law enforcement raids in which he, personally, has had to break down doors with his body. The method used by Respondent to break down the doors during the raids was not the same method used by him on August 11, 1994.
Even though Respondent’s action forced open the door to Mr. Chilton’s apartment, he reacted out of frustration, not with the intent to force the door open.
However, Respondent acted in reckless disregard for the consequences of his actions. He should not have returned to Mr. Chilton’s apartment but waited for his ex-wife until the prearranged time. Respondent’s actions could have escalated the situation into a more serious incident. He exhibited a reckless disregard for the safety and property of others.
The incident was reported to the Martin County Sheriff’s Department. The Deputies on the scene took pictures and completed a report. Mr. Chilton did not want to file criminal charges against Respondent but only wanted his door repaired. The Deputies assisted Mr. Chilton in somewhat securing the door, so that it would at least close.
Approximately 3:00 a.m. on August 12, 1994, Respondent telephoned Mr. Chilton. Respondent apologized for the damage to the door and agreed to pay for the damage.
Subsequently, Respondent telephoned the apartment complex’s manager and agreed to pay for the damage to the door. The cost of the door was $352.99. A payment plan was arranged in which Respondent would pay for the damage in installments.
Due to financial constraints, Respondent was unable to comply with the payment plan as agreed upon. The final payment was made on or about February 2, 1995.
Respondent had no reason associated with his law enforcement duties to enter Mr. Chilton’s apartment. Respondent was off-duty and out-of uniform.
Respondent entered Mr. Chilton’s apartment without permission or invitation.
Respondent is responsible for the damage to the door of Mr. Chilton’s apartment.
Prior to the incident on August 11, 1994, in or around June 1994, Respondent received training in Anger Management.
On August 3, 1994, Respondent was promoted to Sergeant, on a probationary status, by the Riviera Beach PD. As a result of the incident on August 11, 1994, the Riviera Beach PD conducted a personnel investigation. On January 24, 1995, it issued a notice of intent to take disciplinary action against Respondent -– a demotion from a Sergeant to a Patrol Officer, which included a five percent cut in salary. The disciplinary action was taken by the Riviera Beach PD.
On November 2, 1994, Petitioner’s Probable Cause Panel issued Respondent a Letter of Guidance for the act of committing battery (slapping) upon his then wife in April 1993. At the time of the issuance of the Letter of Guidance, Respondent had successfully completed the Probable Cause Intervention Program.
The Probable Cause Panel was not aware of the pending disciplinary action against Respondent by the Riviera Beach PD involving the incident of August 11, 1994. Neither Respondent
nor the Riviera Beach PD notified the Probable Cause Panel of the pending disciplinary action.
CONCLUSIONS OF LAW
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.
License revocation proceedings are penal in nature. The burden of proof is on Petitioner to establish the truthfulness of the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
One of the minimum requirements for employment as a law enforcement officer or correctional officer established by Section 943.13, Florida Statutes (1993), is that the law enforcement officer must:
(7) Have a good moral character as determined by a background investigation under procedures established by the commission.
Section 943.1395, Florida Statutes (1993), provides in pertinent part:
The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executed a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2). . . .
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), the commission may enter an order imposing one or more of the following penalties:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand
Rule 11B-27.0011, Florida Administrative Code (1994), provides in pertinent part:
(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:
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The perpetration by the officer of an act or conduct which:
significantly interferes with the rights of others; or
significantly and adversely affects the functioning of the criminal justice system or an agency thereof; or
shows disrespect of the law of the state or nation; or
causes substantial doubts concerning the officer’s moral fitness for continued service; or....
“What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial
review of same available.” White v. Beary, 237 So.2d 263, 266 (Fla. 1st DCA 1970). “In the context of professional and occupational licensing, the question of what constitutes ‘good moral character’ has been held to be ordinarily a question of fact for the trier of fact.” Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So.2d 187, 188 (Fla. 3d DCA 1991).
Moral character has been defined as “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.” Zemour, Inc. v. Florida Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977).
Also, a lack of good moral character has been determined to include “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.” Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).
Respondent is a law enforcement officer which is a position of great public trust. There is a public expectation and the Riviera Beach PD has a right to insist that those who
enforce the laws must themselves obey the laws they have sworn to enforce. City of Palm Bay v. Bauman, 475 So.2d 1322, 1326 (Fla. 5th DCA 1985).
Petitioner has demonstrated that, at the time of the incident on August 11, 1994, Respondent failed to possess good moral character in violation of Subsections 943.13(7) and 943.1395(7), and Rule 11B-27.0011(4)(c)1.
Petitioner has also attempted to demonstrate Respondent’s lack of good moral character through a violation of Rule 11B-27.0011(4)(b), Florida Administrative Code (1994), which provides:
(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:
* * *
(b) 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[s]...806.13, 810.08....
For the purposes of the case at hand, Subsections 806.13(1)(a) and (b) and (4), Florida Statutes (1993), provide the requirements for the offense of criminal mischief and the potential penalty, and Subsections 810.08(1) and (2)(a) and (b), Florida Statutes (1993), provide the requirements for the offense of trespass in a structure or conveyance and the penalty therefor. However, the administrative complaint did not charge Respondent with violating Rule 11B-27.0011(4)(b), and therefore,
the said Rule cannot form the basis for license revocation. MacMillian v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993); Kinney v. Department of State, 501 So.2d 129 (Fla. 1st DCA 1987); and Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).
Even assuming Respondent had been charged with violating Rule 11B-27.0011(4)(b) or the parties litigated whether Respondent violated Rule 11B-27.0011(4)(b) by agreement, Petitioner failed to demonstrate that Respondent violated the said Rule.
Regarding penalty, Petitioner suggests that Respondent be decertified. Respondent suggests that, if he is found to have committed the violations, he receive a reprimand or a suspension not to exceed five (5) days. Respondent agrees that his actions on August 11, 1994, were improper and constituted misconduct.
Taking into consideration the totality of the circumstances, Petitioner’s suggested penalty is too harsh, whereas, Respondent’s suggested penalty is to lenient. Also, Respondent’s argument is persuasive that Petitioner’s Letter of Guidance should not be considered as it was issued subsequent to the August 11, 1994 incident.
Respondent has participated in Petitioner’s Probable Cause Intervention Program, as a result of the domestic violence incident in April 1993, and in Riviera Beach PD’s Anger Management Training. Even though the Riviera Beach PD demoted
Respondent, effectuating a five percent salary cut, Respondent is not persuasive that he appreciates the seriousness of his actions.
1/ Even though the prehearing stipulation reflects a date of December 23, 1995, the correct date is December 23, 1985. The parties’ proposed findings of fact, as well as the Affidavit of Certification, which was entered into evidence, reflects the date of December 23, 1985.
Karen D. Simmons Assistant General Counsel
P. O. Box 1489
H. R. Bishop, Esquire
300 E. Brevard Street Tallahassee, Florida 32301
A. Leon Lowry, II, Director
Michael Ramage, General Counsel Division of Criminal Justice Standards and Training Commission
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
