STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4011

)

MARC D. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on April 3, 1997, in Lake City, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons

Assistant General Counsel

Florida Department of Law Enforcement Office of General Counsel

Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: H. R. Bishop, Esquire

Police Benevolent Association

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995), 1/ and Florida Administrative Code Rules 11B-27.0011(4)(a) and (b), 2/

by failing to maintain the qualifications established in Sections 943.13(4) or (7); and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March 21, 1996. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of five witnesses and submitted 17 exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of two witnesses, and submitted two exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on April 30, 1997. The parties timely filed their respective proposed recommended orders ("PROs") on May 21, 1997.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for certifying and regulating law enforcement officers. Respondent is certified as a law enforcement officer pursuant to Correctional Certificate 92776 and is employed as a correctional officer by the Florida Department of Corrections.

2. Respondent married Ms. Minnie Williams on May 6, 1988, in Lake City, Florida. They had one child, Blake, in 1990. They separated in September, 1993, and were divorced in November, 1994. The court awarded custody of the child to Respondent.

3. In 1988, Respondent was in the Navy, stationed aboard the USS Saratoga, and based in Virginia. After Respondent and Ms. Williams were married, Respondent returned to Virginia. Ms.

   Williams remained in Lake City for several months before moving to Virginia to live with Respondent.

4. Approximately one year after the marriage, problems developed in the marriage. Ms. Williams did not assist in the daily needs of the household, was unable to stay in school, and was not able to keep a job.

5. Respondent's efforts to solve the marital problems were unsuccessful. His attempts at counseling failed to improve communications between the couple.

6. In late 1989, Respondent informed Ms. Williams that the marriage was not going to work. He told Ms. Williams that he thought they should divorce.

7. Ms. Williams returned to her mother's home in Lake City. Respondent's ship was transferred to Mayport, Florida in 1990.

8. Ms. Williams did not want a divorce and did not want to separate from Respondent. Sometime in 1990, Respondent left the Navy and obtained employment with the Department of Corrections. Between 1990 and 1993, the couple maintained the marriage in an effort to provide a home for their child.

9. Whenever Respondent attempted to discuss divorce, it resulted in a heated argument. Ms. Williams frequently threatened to "ruin" Respondent.

1. The Wrench

   1. On March 9, 1993, Respondent counseled a co-worker who was distraught over her husband's affair. Respondent learned

      that the woman with whom the husband was having an affair was Respondent's wife.

   2. Respondent went home to pack his clothes and leave home. An argument ensued regarding Ms. William's infidelity. Respondent packed some of his personal belongings and left home.

   3. At approximately 11:00 p.m. on the same day, Respondent returned home for more of his personal belongings. Respondent was still very angry.

   4. Respondent and Ms. Williams became involved in another argument. During the argument, Respondent continued to pack his things. He retrieved a large wrench from his closet.

   5. Respondent was walking down the hallway leading from the bedroom to the front door. Respondent had the wrench in one hand and other personal belongings in the other hand.

   6. Respondent told Ms. Williams that this time he was leaving for good. It was approximately 12:10 a.m. on March 10.

   7. Ms. Williams told Respondent that she would get him fired and get custody of their child. Respondent turned abruptly around to face Ms. Williams.

   8. Ms. Williams was startled and frightened. She ran into the bedroom from the hallway where she scraped her leg on a jagged corner of the bed, fell, and struck her right hand on the open sliding glass door of the bedroom. Respondent never struck Ms. Williams in any way, with his hands, the wrench, or otherwise.

   9. The injuries to Ms. Williams were minor. Respondent left.

   10. Ms. Williams spent the night in her car. The next day she reported the incident to the Columbia County Sheriff's Office (the "Sheriff").

   11. Ms. Williams reported to the investigating officer that Respondent beat her with his hands and a wrench for about 15 minutes. The injuries observed by the investigating officer were not consistent with such a beating.

   12. The injuries to Ms. Williams were consistent with a trip and fall. Ms. Williams had a three inch cut on her left leg at approximately the height of the corner of the bed. She also had a bruise on her right hand and some swelling. Ms. Williams did not seek medical treatment for her injuries.

   13. On March 16, 1993, the state attorney charged Respondent with misdemeanor battery. On April 5, 1993, Respondent entered into a Misdemeanor Intervention Agreement scheduled for six months. The agreement was terminated early on September 3, 1993.

   14. Respondent established a separate residence. Respondent had no further relations with Ms. Williams except those necessary for the care of their child.

2. The Lip

   1. Respondent resided with his girlfriend and shared her car. Ms. Williams used Respondent's truck to commute to work.

   2. On March 27, 1994, Respondent went to Ms. Williams house to pick up clothes and diapers for his son. Ms. Williams routinely failed to deliver those items when she dropped off their child to Respondent.

   3. Ms. Williams was not home, and Respondent waited for her. When Ms. Williams arrived in Respondent's truck, the truck was driven by Ms. Williams' boyfriend.

   4. Respondent was angered that Ms. Williams' boyfriend was driving Respondent's truck. Ms. Williams and her boyfriend attempted to turn the truck around and leave.

   5. Respondent ran behind the truck so that the vehicle could not be turned around. Ms. Williams and her boyfriend were angry that Respondent blocked their exit.

   6. Ms. Williams and her boyfriend got out of the truck. The boyfriend and Respondent engaged in a physical altercation.

   7. During the altercation, Ms. Williams attacked Respondent. She hit and kicked him and jumped on his back.

   8. Either Respondent or the boyfriend inadvertently struck Ms. Williams in her lip. She went to the Lake City Medical Center for medical treatment.

   9. At the Medical Center, Ms. Williams reported the incident to the Sheriff. Her injuries were minor.

   10. On April 6, 1994, the state attorney charged Respondent with misdemeanor battery. He entered a plea of nolo contendere.

   11. The court withheld adjudication and placed Respondent on supervised probation for one year. On May 27, 1994, the

   supervised probation was converted to unsupervised probation with the provision that Respondent was not to contact Ms. Williams.

3. The Window

   1. On April 4, 1994, Ms. Williams drove to Respondent's house to pick up their child. Respondent's girlfriend and mother were inside the house with him.

   2. Respondent went outside the house to the car. Ms. Williams got out of the car. She became belligerent and verbally abusive toward Respondent.

   3. Respondent told Ms. Williams to leave. Ms. Williams backed away from Respondent, struck the car window with her posterior, and the window broke.

   4. Ms. Williams became angrier. She threatened to have Respondent "messed up."

   5. Ms. Williams left with her child and went to her aunt's house. She telephoned the Sheriff and filed a complaint.

   6. On April 25, 1994, the state attorney charged Respondent with criminal mischief. Respondent determined that the criminal charges would be dropped if he paid for the window.

   7. Respondent gave Ms. Williams a money order for $159. On May 25, 1994, the state attorney filed a nolle prosequi declining to prosecute Respondent.

   8. In November, 1994, Respondent obtained custody of the only child of the marriage with Ms. Williams. Respondent has retained custody of the child.

4. The Knife

   1. On February 1, 1995, Ms. Williams went to Respondent's house to deliver some clothes for their son. They went into the kitchen. Ms. Williams asked about reconciliation.

   2. Respondent stated that he wanted nothing to do with Ms. Williams. She became angry. She told him that she was going to "fix him." Respondent told Ms. Williams to leave, and she did.

   3. On February 2, 1995, Ms. Williams telephoned the Sheriff. She claimed Respondent had threatened her with a knife and beaten her for 15 to 30 minutes when she was at his home the previous day.

   4. Respondent did not batter Ms. Williams. He did not threaten her with a dangerous weapon.

   5. The investigating officer observed no injuries on Ms. Williams. She did not seek medical treatment for the alleged injuries even though she knew she was pregnant at the time with her boyfriend's child.

   6. A neighbor observed Ms. Williams leaving Respondent's home on February 1, 1995. She had no observable injuries and was gesturing to Respondent as she left.

   7. The state attorney charged Respondent with two misdemeanors, battery and exhibiting a dangerous weapon. The court found respondent not guilty of the latter offense but guilty of the former. The court sentenced Respondent to one year of unsupervised probation with the special condition that there be no contact with Ms. Williams.

5. The Handgun

   1. On February 10, 1995, Respondent and Ms. Williams were driving in separate cars near the Gateway Plaza. Ms. Williams filed a complaint with the Sheriff's Office. She alleged that Respondent drove beside her and pointed a handgun at her.

   2. The state attorney charged Respondent with improper exhibition of a dangerous weapon. On October 3, 1995, the court found Respondent not guilty of the offense. Respondent did not exhibit a dangerous weapon.

6. Paternity

   1. In 1995, Ms. Williams became pregnant with the child of her boyfriend. Ms. Williams charged Respondent with paternity.

   2. Paternity tests proved that Respondent was not the father of the child. Respondent had not had sex with Ms. Williams since 1993.

7. Other Matters

   1. After their divorce, Ms. Williams repeatedly threatened Respondent by stating that she would get him fired and get custody of their child. She filed approximately 20 complaints against Respondent with the Sheriff's Office. She also contacted the former Department of Health and Rehabilitative Services to report Respondent for child abuse.

   2. Respondent did not report the criminal actions filed by Ms. Williams to his employer and received a written reprimand for not reporting the criminal matters. Respondent is still employed by the Department of Corrections.

      CONCLUSIONS OF LAW

   3. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

   4. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   5. The Administrative Complaint charges that the acts alleged to have been committed by Respondent violated Sections 943.1395(6) and (7) and Rules 11B-27.0011(4)(a) and (b):

      . . . in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Correctional officer in the State of Florida have good moral character.

   6. Rules 11B-27.0011(4)(a) and (b), respectively, define the failure to maintain good moral character as the perpetration of an act which would be a felony or misdemeanor whether or not the act is criminally prosecuted. Petitioner failed to show by clear and convincing evidence that Respondent perpetrated an act that is either a felony or a misdemeanor.

   7. Respondent's testimony was credible and persuasive, including his testimony that he entered into plea arrangements and paid for the broken window for his own convenience. Respondent never plead guilty to any of the criminal charges and was found guilty of battery in only one instance.

   8. The one finding of guilt is not binding in this proceeding under the doctrines of res judicata, stare decisis, or collateral estoppel. Petitioner failed to show by clear and convincing evidence adduced in this proceeding that Respondent committed any of the criminal acts with which he is charged in the Administrative Complaint.

   9. This proceeding is penal in nature. It subjects Respondent to the potential for revocation of his certification and the loss of his livelihood.

   10. In a proceeding under a statute that is penal in nature, the requirement for competent and substantial evidence takes on vigorous implications that are not present in other proceedings under Chapter 120. Robinson v. Florida Board of Dentistry, Department of Professional Regulation, Division of Profession, 447 So.2d 930, 932 (Fla. 3d DCA 1984). The testimony of one interested witness does not, ". . . even begin to approach the level of 'competent substantial evidence.'" Robinson, 447 So.2d at 932.

   11. The only direct evidence submitted by Petitioner that Respondent committed the acts alleged in the Administrative Complaint was the testimony of Ms. Williams. Ms. Williams is only one witness who has repeatedly stated that she is interested in getting Respondent fired from his job and getting custody of their child.

   12. The testimony of Ms. Williams that Respondent committed misdemeanors against her in the form of battery, criminal

       mischief, and displaying dangerous weapons was not credible and persuasive. Her testimony was not corroborated by medical evidence of injuries or the observations of investigating officers. Petitioner produced no other witnesses to corroborate the testimony of Ms. Williams.

   13. Ms. Williams testified to facts she did not remember distinctly. Her testimony was neither precise nor explicit.

   14. In order for evidence to be clear and convincing:

       . . . evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and 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.

       Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983).

   15. The testimony of Ms. Williams was less than clear and convincing. It did not produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of her allegations against Respondent.

8. Moral Character

1. Petitioner did not show by clear and convincing evidence that Respondent failed to maintain good moral character even if Respondent did not perpetrate an act that is a felony or misdemeanor. Good moral character has been judicially defined in a manner that is not limited to the ability to distinguish between right and wrong. Good moral character requires:

   . . . 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. Division of Beverage, 347 So.2d 1102, 1104 (Fla. 1st DCA 1977). See also, Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978); White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).

2. A finding that one lacks good moral character is not limited to acts that reflect moral turpitude. A lack of good moral character includes:

   . . . 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.

   G.W.L., 364 So.2d at 457.

3. Respondent did not fail to maintain good moral character within the meaning of relevant case law. Respondent did not fail to observe the difference between right and wrong or fail to observe the rules of right conduct. Zemour, 347 So.2d at 1103. Respondent has not created substantial doubts about his respect for the rights of others and for the laws of the state. G.W.L., 364 So.2d at 456.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 943.1395(6) and (7)

and Rules 11B-27.0011(4)(a) and (b) and dismissing the Administrative Complaint.

RECOMMENDED this 6th day of June, 1997, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training Commission

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Karen D. Simmons Assistant General Counsel

Florida Department of Law Enforcement Office of General Counsel

Post Office Box 1489 Tallahassee, Florida 32302-1489

H. R. Bishop, Esquire

Police Benevolent Association

300 East Brevard Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-004011

Orders for Case No: 96-004011