STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-4364

)

MARK T. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 6, 1998, in Arcadia, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

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

For Respondent: Mark T. Lewis, pro se

1281 Brockett Road, Apartment 39F Clarkston, Georgia 30021

STATEMENT OF THE ISSUE

Whether Respondent's correction officer's license is subject to disciplinary action.

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated December 16, 1994, Petitioner alleged that the Respondent Mark T. Lewis', correctional officer's license should be disciplined for violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that the Respondent violated the provisions of Section 943.1395(6)(7), Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code, by unlawfully and knowingly carrying a concealed weapon on or about his person, to wit: a .380 caliber firearm, thereby failing to maintain the qualification of good moral character established by Section 943.13(7), Florida Statutes.

The Respondent disputed the allegations of the Administrative Complaint and filed an Election of Rights form requesting a formal hearing. The case was referred to the Division of Administrative Hearings.

At the formal hearing, the Petitioner presented the testimony of two witnesses; Sergeant Anthony Annatone, and Officer Steven Larson, and offered two exhibits into evidence. The Respondent testified in his own behalf and offered the testimony of one witness, Melanie Young. The Respondent did not offer any exhibits into evidence. After the hearing, Petitioner offered a third exhibit into evidence clarifying the licensure of Respondent. Petitioner's exhibit 3 was accepted.

Petitioner filed a Proposed Recommended Order on March 23, 1998. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Mark T. Lewis, the Respondent, was certified as a correctional officer by the Criminal Justice Standards and Training Commission on October 31, 1990. He was issued Correctional Certificate Number 79926.

2. At the time and to the present, Respondent lived with his long-time girlfriend, Melanie Young.

3. On April 23, 1992, the Respondent threw a party, at a friend's house for Ms. Young. The friend's house was located at

   220 North Caroline Street.

   
   

4. Ms. Young became very inebriated at the party. At some point, she was so drunk she had fallen and bloodied her nose and face.

5. During the night, a physical and verbal altercation occurred between the Respondent and Gerold Scurry. Also, at some point during the party, Respondent had stepped on a piece of glass which was lodged in his foot. Because of the altercation, Respondent left the party on foot but eventually obtained a ride from a friend. He left his car, a black Camero, at the party's location.

6. Ms. Young did not want Respondent to leave. In her foggy, drunken state, she was upset that Respondent had left.

7. After Respondent left the party, the party broke up with everyone leaving the apartment where the party had been held. Ms. Young and Mr. Scurry's sister left the party's location and

   went to her friend's relatives' home. The relatives and her friend, perhaps mistakenly believing Respondent had caused Ms. Young's bloody nose, agitated Ms. Young into calling the police.

8. At approximately 5:00 a.m. on April 24, 1992, Melanie Young, still quite inebriated and not thinking clearly and still upset with Respondent, called the Daytona Beach Police Department. Ms. Young was so intoxicated she does not clearly remember what she told the police 911 operator when she called. She admits that she could have said anything to the operator in her condition.

9. Officer Anthony Annatone received a dispatch to respond to 220 North Caroline Street in reference to a subject driving a black Camero who was possibly armed and enroute to that location in order to harm another.

10. Ms. Young in her drunken state forgot Mr. Scurry was no longer at the party's location. In fact, no one was at the party's location.

11. As Officer Annatone arrived he observed the apartment door standing open and a black Camero leaving the apartment's parking lot.

12. Respondent had decided to retrieve his car from the parking lot. He was driving to the emergency room at the local hospital to have his foot taken care of.

13. Officer Annatone, followed the Camero and called for back up. When the backup arrived, Officer Annatone activated his lights and pulled the Camero over.

14. Respondent got out of the Camero and walked to the back of the car towards the police car. Officer Annatone asked Respondent if he was armed with a firearm or weapon. Respondent replied no but that the officer could check the car. Respondent was completely cooperative and polite towards the police officers.

15. Daytona Beach Police Department Officer Steve Larson searched the Camero. He recovered from underneath the driver's seat a Titan II [sic] .380 caliber semi-automatic firearm, with a fully loaded magazine of 6 bullets. The gun was encased in a holster without a strap.

16. Officer Annatone was not able to see a weapon from his vantage point outside and in back of the Camero.

17. Respondent recognized the weapon as one purchased by Ms. Young. The gun was to be a surprise birthday present to Respondent. The present was chosen by Ms. Young because Respondent had recently obtained his correctional officer's license, was working at one of the local prisons and was authorized to carry a weapon while working.

18. Unknown to Respondent, Ms. Young had hidden the weapon in the car. The car was used by both Respondent and Ms. Young.

19. On or about September 21, 1992, the Respondent pled nolo contendere to carrying a concealed weapon. He was advised by his attorney that the plea would not have an impact on his correctional license. Adjudication was withheld. Respondent received the minimum fine and a short probation, which was completed successfully.

20. Respondent is of good character and has never been in trouble either before or since this incident. Respondent was well thought of by the Daytona Beach Police and enrolled in and completed that Department's program to obtain a law enforcement officer's license even though he was on probation for this incident.

21. Since Respondent did not know the gun was in the car and did not have any control or authority over the gun, he clearly did not knowingly or intentionally possess a concealed weapon. He therefore did not fail to maintain his good moral character. More importantly, however, even assuming he was aware of the gun being hidden in the car, it would be impossible for Respondent, who was and still is of good character, to lose that character upon the occurrence of the 1992 incident or plea. The facts simply do not support a finding that Respondent is of bad moral character or somehow failed to maintain his good character.

    CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

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

24. Section 943.13, Florida Statutes, establishes 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.

    
    

25. Rule 11B-27.0011(4), Florida Administrative Code, in effect at the time of the alleged offense, defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. The Rule states in relevant portion:

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6)(7), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), 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 no: . . . 790.01(1), . . . 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 . . . .

    
    

26. Section 790.01, Florida Statutes provides:

    
    

    1. . . . a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree . . . .

       
       

    2. A person who carries a concealed firearm on or about his or her person commits a felony of the third degree . . . .

       
       

27. Section 790.001, Florida Statutes, relevant definitions:

    (2) 'Concealed firearm' means any firearm, as defined in subsection (6) which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.

    
    

    (3)(a) 'Concealed weapon' means any dirk, metallic knuckles, slungshot, billie, tear gas fun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

    
    

28. A gun which is located under the driver's seat of an automobile is concealed on or about the person for purposes of statute prohibiting carrying of concealed firearm. State v. Hanigan, 312 So. 2d 785 (2d DCA 1975).

29. In order to prove that a weapon was "concealed," a weapon must be on or about the person and hidden from ordinary sight of another person. Ordinary sight of another person means

    the casual and ordinary observation of another through the normal associations of life. State v. Pollock, 600 So. 2d 1313 (3d DCA 1992).

30. However, to possess or carry a concealed weapon, the person must know he or she possesses the weapon and have some ownership or control over the item possessed. In this case, the Petitioner did not demonstrate that Respondent knew the weapon was in the car or if he did know, that he had any control over its placement in the car. The car, while owned by Respondent, was a jointly used vehicle over which his girlfriend had joint control. She hid the weapon in the car in order to remove the gun from Respondent's mother's home, where Respondent and his girlfriend lived. Respondent did not own the gun and did not know the gun was in the car.

31. Moreover, given the facts of this case, it is impossible to reach the factual conclusion that Respondent is of bad moral character or has not maintained good character because this incident occurred. Respondent was well thought of by the Daytona Beach Police and enrolled in and completed that Department's program to obtain a police officer's license even though he was on probation for this incident. Respondent has never been in any legal trouble either before or after the 1992 incident.

32. Based on the foregoing the Petitioner did not show by clear and convincing evidence that the Respondent failed to

maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(b) and (c), Florida Administrative Code.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Administrative Complaint be dismissed.

DONE AND ENTERED this 27th day of May, 1998, in Tallahassee,

Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998.

COPIES FURNISHED:

Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Mark T. Lewis

1281 Brockett Road, Apartment 39F Clarkston, Georgia

A. Leon Lowry, II, Director Division of Criminal Justice

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

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

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: 97-004364

Orders for Case No: 97-004364