STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-0852

)

TRAVIS J. LONG, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled matter was heard before the Division of Administrative Hearings by Administrative Law Judge, Daniel M. Kilbride, on June 20, 1997, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Amy Bardill, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: H. R. Bishop, Jr., Esquire

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on July 20, 1995, charging that Respondent failed to maintain good moral character by soliciting to commit prostitution. Respondent demanded a formal hearing by filing an Election of Rights on September 12, 1995. This matter was referred to the Division for formal hearing on February 21, 1997.

Following discovery, the formal hearing was held. At the hearing the Petitioner presented the testimony of one witness. Four exhibits were admitted in evidence without objection.

Respondent presented the testimony of one witness and testified in his own behalf. No exhibits were offered in evidence by the Respondent.

Both parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on July 24, 1997. Petitioner filed its Proposed Findings of Fact and Conclusions of Law on August 1, 1997.

Respondent filed his proposed findings on August 8, 1997. The proposed findings have been given careful consideration and have been incorporated where appropriate.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active.

2. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center.

3. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office.

4. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau.

5. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida.

6. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse.

7. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted

   $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined.

8. Mills did not immediately arrest Respondent because she

   wanted to see the money to confirm that he was there to buy sex.

   
   

9. Respondent left the area and returned 20 minutes later.

   
   

10. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire).

11. Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her.

12. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.”

13. Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.”

14. As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him.

15. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed.

16. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible.

17. Respondent was an energetic, hard-working individual.

    Respondent had no prior criminal or employment discipline problems prior to this incident.

18. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to subsections 120.569 and 120.57(1), Florida Statutes.

20. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085- 943.255, Florida Statutes (1993), and is authorized to discipline those licensed thereunder who violate the law.

21. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Section 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

22. Section 943.13, Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

23. In Zemour, Inc. vs. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are entirely dissimilar to the instant case, the court's definition of moral character is significant.

    Moral character as used in this statute means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct; and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    Such definition should be used in the case before this tribunal.

    
    

24. In Florida Board of Bar Examiners Re: G.W.L., 364

    
    

    So. 2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of "good moral character," in a case involving admission to the bar,

    requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

    See also White vs. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

    
    

25. Rule 11B-27.0011(4)(b), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and corrections officers. The rule states in relevant portion:

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6) 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 796.07: Prostitution. . . .

26. Section 796.07, Florida Statutes, Prohibiting Prostitution, provides, in pertinent part:

    1. As used in this section:

       1. "Prostitution" means the giving or receiving of the body for sexual activity for hire.

       2. "Lewdness" means any indecent or obscene act.

       3. "Assignation" means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

       . . .

       (3) It is unlawful in the state:

       (b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.

       
       

       (5) Any person who violates any provision of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

       
       

27. Section 943.1395(7), Florida Statutes provides:

    
    

    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:

    1. Revocation of certification.

    2. Suspension of certification for a period

       not to exceed 2 years.

    3. 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.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    
    

28. Rule 11B-27.005(3), Florida Administrative Code, provides that:

    When the Commission finds that a certified officer has committed an act which violates section 943.13(7), Florida Statutes, it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

    
    

    * * *

    
    

    (b) For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, as described in 11B- 27.0011(4)(b), F.A.C., . . . the action of the Commission shall be to impose a penalty ranging from probation to revocation.

    Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following:

    * * *

    
    

    (8) Prostitution or Lewdness (796.07, F.S.) Revocation . . .

    
    

29. In this case, clear and convincing evidence established that Respondent's conversation with the undercover officer was designed to solicit prostitution. In his attempt to show the

    seriousness of his desire to effect the assignation, he exposed his penis to Officer Mills. Respondent's defense that, although he made certain statements, he did not mean it, is not credible. Respondent's conduct shows disrespect for the laws of the state and, therefore, Respondent has failed to maintain good moral character.

30. The position of law enforcement officer is one of great public trust. There can be no more basic public expectation than that those who enforce the law must themselves obey the law. City of Palm Bay vs. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

31. In regard to the appropriate discipline that should be imposed, Respondent has demonstrated that the penalty should be mitigated.

32. While soliciting prostitution is serious misconduct, Respondent has demonstrated that he has had no prior misconduct on his employment or criminal record. He has been rated as an outstanding corrections officer. Further, Respondent has been employed in his current capacity for three years after this incident without any further infractions.

33. Imposing the penalty of revocation would be unwarranted in this case. Suspension with conditions and training as required by the Commission would be the most appropriate penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED as follows:

1. Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993).

2. Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary.

DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

230 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 26th day of August, 1997.

COPIES FURNISHED:

Amy Bardill, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

H. R. Bishop, Jr., Esquire

300 East Brevard Street Tallahassee, Florida 32301

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

A. Leon Lowry, II, Director Department of Law Enforcement

Division of Criminal Justice Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302

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: 97-000852

Orders for Case No: 97-000852