STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-5965

)

JONATHAN CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on May 4, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Florida Department of Law Enforcement Office of the General Counsel

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Mark F. Carbonell, Esquire

Garcia, Elkins & Carbonell, P.A. The Citizens Building, Suite 802

105 South Narcissus Avenue West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint.

   
   

   him.

2. If so, what disciplinary action should be taken against

PRELIMINARY STATEMENT

On August 29, 1997, the Criminal Justice Standards and

Training Commission (Commission) filed an Administrative Complaint against Respondent, a certified law enforcement officer, alleging (in paragraphs 2(a) through 2(j) thereof) that, on April 17, 1996, on April 24, 1996, on June 8, 1996, on June

16, 1996, on June 26, 1996, twice on July 5, 1996, twice on July

14, 1996, and on July 16, 1996, Respondent "did unlawfully make a false statement in writing with the intent to mislead Sergeant Steven M. Veltry, a public servant, in the performance of his official duty," and further alleging (in paragraph 2(k) thereof that) "[b]etween April 17, 1996, and July 16, 1996, . . . while acting as a public servant, with corrupt intent to obtain a benefit for himself or another," Respondent "did then knowingly falsify and/or cause another to falsify, a public record, to wit: Florida Highway Patrol Written Warning Notices and Faulty Equipment Notices." According to the Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(a) and/or (b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character."

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a Section 120.57(1) hearing.1 On December 22, 1997, the Commission referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the Section 120.57(1) hearing Respondent had requested.

As noted above, the hearing was held on May 4, 1998. Ten witnesses testified at the hearing: Lieutenant Ernest Wessels of the Florida Highway Patrol's Bureau of Investigations; Robert Cummings; Paul Decker; Armando Valverde; Trooper Rodney Adams of the Florida Highway Patrol; Lieutenant Allen Woods of the Florida Highway Patrol's Bureau of Investigations; Sergeant Steven Veltry of the Florida Highway Patrol; Sharon Ciriago; Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement; and Respondent. In addition to the testimony of these ten witnesses, two exhibits were offered and received into evidence: Petitioner's Exhibit 1, an "Affidavit of Certification" signed by Danny Quick, a Training and Research Manager in the Florida Department of Law Enforcement's Officer Records Section; and Petitioner's Exhibit 2, consisting of pages

1 through 16 of the Florida Highway Patrol's "Investigation Report" in Case No. D-95-0075-L, plus certain of the "exhibits" which were made a part of the report.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties that the

deadline for the filing of proposed recommended orders was 15 days from the date of the Division's receipt of the transcript of the hearing. The hearing transcript was filed with the Division on June 3, 1998.

On June 17, 1998, the Commission filed its proposed recommended order. In its proposed recommended order, the Commission advised that it was not pursuing the allegations contained in paragraphs 2(a), 2(e) 2(f), 2(h), 2(i) and 2(j) of the Administrative Complaint.

On June 18, 1998, Respondent filed a motion requesting an extension of the deadline for the filing of proposed recommended orders. On that same date, the Commission filed a response to Respondent's motion. In its response, the Commission requested that the motion "be denied or in the alternative that the court grant leave for Petitioner to submit a response to Respondent's proposed recommended order." A hearing on the motion was held on June 19, 1998, by telephone conference call. During the telephone conference call, counsel for Respondent indicated that he had no objection to the Commission having the opportunity to file a "response" to Respondent's proposed recommended order if Respondent was granted an extension of time to file his proposed recommended order. On June 22, 1998, the undersigned issued an order giving Respondent until June 25, 1998, to file his proposed recommended order and the Commission until July 7, 1998, to file any supplemental proposed recommended order it desired to file.

Respondent filed his proposed recommended order on June 25, 1998. To date, the Commission has not filed any supplement to its previously filed proposed recommended order. Both the Commission's proposed recommended order and Respondent's proposed recommended order have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138.

2. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997.

3. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation.

4. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida.

5. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision.

6. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant

   Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse.

7. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.)

8. The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice.

9. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued.

10. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate.

11. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report.

12. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week.

    Included in the report is the number of written warnings and faulty equipment notices issued by the trooper.

13. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report.

14. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers.

15. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning

    his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period.

16. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices:

    Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given.

17. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no

    stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice.

18. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving.

19. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago

    such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice.

20. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice.

21. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices."

22. Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation.

23. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."

    CONCLUSIONS OF LAW

    
    

24. At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

25. At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized the Commission to revoke the certification of a law enforcement officer who has failed to maintain "good moral character . . . as required by s. 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties upon the officer.

26. In those cases where revocation or suspension of a law enforcement officer's certification is sought based upon the officer's alleged failure to maintain "good moral character," the lack of "good moral character" must be established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.

    2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v.

    Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

27. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the 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.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

28. The disciplinary action taken against the officer may be based only upon those acts demonstrating lack of "good moral character" specifically alleged in the administrative complaint (see Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984)), and may not

    be more severe than the punishment that the Commission, in the administrative complaint, warned the officer he or she might receive. See Cobas v. State, 671 So. 2d 838, 839 (Fla. 3d DCA 1996)("Finally, the trial court erred in imposing a habitual offender sentence in lower court case 89-33369, where Cobas was not given prior notice of the intent to seek enhanced penalties before the plea was accepted."); Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("Since Williams was not given notice by either the complaint or later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non-prayed-for relief of permanent revocation, even if justified by the evidence, was error.").

29. To the extent that Section 943.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified law enforcement officer for lack of "good moral character," "it is, in effect, a penal statute This

    being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee."

    Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

30. "'Moral character' is 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. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "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).

31. The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." Rule 11B- 27.0011(4), Florida Administrative Code, provides, in pertinent part, as follows:

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:

       
       

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.

          
          

       2. 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[] . . . 837.06 . . . .

          
          

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

          
          

          6. False statements. . . .

          
          

32. "Official misconduct," as described in Section 839.25, Florida Statutes, which provides as follows, is a "felony offense," as that term is used in subsection (4)(a) of Rule 11B- 27.0011, Florida Administrative Code:

    839.25 Official misconduct.–

    
    

    1. "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another: knowingly falsifying, or causing another to falsify, any official record or official document.

       
       

    2. "Corrupt" means done with knowledge that act is wrongful and with improper motives.

       
       

    3. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

33. Section 837.06, Florida Statutes, one of the statutory provisions referenced in subsection (4)(b) of Rule 11B-27.0011, Florida Administrative Code, provides as follows:

837.06 False official statements.–

Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

839.25

1. In the instant case, the Commission, in its Administrative Complaint (as amended by the Commission's voluntary dismissal of the allegations contained in paragraphs 2(a), 2(e) 2(f), 2(h), 2(i) and 2(j) thereof), has alleged that Respondent "failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character," in that, on April 24, 1996, June 6, 1996, June 16, 1996, and July 5, 1996, he "did unlawfully make a false statement in writing with the intent to mislead Sergeant Veltry, a public servant, in the performance of his official duty" (as charged in paragraphs 2(b), 2(c) 2(d), and 2(g) of the Administrative Complaint) and between April 17, 1996, and July 16, 1996, . . . while acting as a public servant, with corrupt intent to obtain a benefit for himself or another," he "did then knowingly falsify and/or cause another to falsify, a public record, to wit:

   Florida Highway Patrol Written Warning Notices and Faulty Equipment Notices" (as charged in paragraph 2(k) of the Administrative Complaint).

2. The evidence the Commission presented by at hearing, most notably the testimony of the four motorists, Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde, concerning what Respondent did and did not do during their encounters with him on the dates in question (which testimony the undersigned finds to be reliable and worthy of belief2), clearly

   and convincingly establishes that Respondent committed these acts (as alleged in paragraphs 2(b), 2(c) 2(d), 2(g), and 2(k) of the Administrative Complaint).

3. In so doing, Respondent failed to maintain "good moral character," as defined in Rule 11B-27.0011(4), Florida Administrative Code, inasmuch as his conduct constituted: "official misconduct," in violation of Section 839.25, Florida Statutes, which is a "felony offense," as that term is used in subsection (4)(a) of Rule 11B-27.0011, Florida Administrative Code; the making of "false official statements," in violation of Section 837.06, Florida Statutes, one of the statutory provisions referenced in subsection (4)(b) of Rule 11B-27.0011, Florida Administrative Code; and the making of "false statements," as described in subsection (4)(c)6 of Rule 11B-27.0011, Florida Administrative Code.

4. Respondent is therefore subject to disciplinary action pursuant to Section 943.1395, Florida Statutes.

5. At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized the Commission to revoke the certification of a law enforcement officer who has failed to maintain "good moral character" or to impose one or more of the following less severe penalties: suspension of the officer's certification for a period not exceeding two years; placement of the officer on probationary status for a period not exceeding two years, subject to terms and conditions imposed by

   the Commission; requiring the officer to successfully complete any basic recruit, advanced, or career development training deemed appropriate by the Commission; and the issuance of a reprimand.

6. Section 943.1395(8)(d), Florida Statutes, mandates that, in determining which of these penalties should be imposed, the administrative law judge shall

   1. Adhere to the disciplinary guidelines and penalties set forth in . . . the rules adopted by the commission for the type of offense committed.

      
      

   2. Specify in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty

      
      

      Cf. Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines when taking disciplinary action against its employees). Section 943.1395(8)(d), Florida Statutes, further provides that "[a]ny deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify aggravation or mitigation of the penalty [and that such deviation] must be explained in writing by the administrative law judge."

7. The Commission's "disciplinary guidelines and [prescribed] penalties" are found in Rule 11B-27.005, Florida Administrative Code, which provides in pertinent part as follows:

   11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of

   Penalties; Aggravating and Mitigating Circumstances. . . .

   
   

   1. The Commission sets forth in paragraphs (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Section 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties, or prescribed penalties, which will be imposed for particular violations of Section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in paragraph (6) of this rule. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

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

      
      

      1. For the perpetration by the officer of an act which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S.,3 the action of the Commission shall be to impose a penalty ranging from, suspension of certification to revocation. . . .

         
         

      2. For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from, probation of certification to revocation. Specific

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

         
         

         4. False reports (817.49, 837.05, 837.06, 944.35(7)(a), F.S.) Revocation

         
         

      3. For the perpetration by the officer of an act or conduct, as described in Rule 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b), of this rule, the action of the Commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following: . . . .

         
         

         6. False statements Probation of certification to revocation. . . .

         
         

   3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to a[n administrative law judge], if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one

   (1) or more of the following aggravating or mitigating circumstances:

   
   

   1. Whether the officer used his or her official authority to facilitate the misconduct.

      
      

   2. Whether the misconduct was committed while the officer was performing his or her other duties.

      
      

   3. The officer's employment status in a position requiring Criminal Justice Standards and Training Commission certification at the time of the final hearing before the Commission.

   4. The recommendations of character or employment references.

      
      

   5. The number of violations found by the Commission.

      
      

   6. The number of prior disciplinary actions taken against the officer by the Commission.

      
      

   7. The severity of the misconduct.

      
      

   8. The danger to the public.

      
      

   9. The length of time since the violation.

      
      

   10. The length of time the officer has been certified.

       
       

   11. The actual damage, physical or otherwise, caused by the misconduct.

       
       

   12. The deterrent effect of the penalty imposed.

       
       

   13. Any effort of rehabilitation by the officer.

       
       

   14. The effect of the penalty upon the officer's livelihood.

       
       

   15. The penalties imposed for other misconduct.

       
       

   16. The pecuniary benefit or self-gain to the officer realized by the misconduct.

       
       

   17. The officer's compliance with the terms and conditions of any Commission-ordered probation.

       
       

   18. Whether the misconduct was motivated by unlawful discrimination.

       
       

   19. Prior Letter of Guidance or Letter of Acknowledgment.

       
       

   20. The effect of disciplinary or remedial action taken by the employing agency and/or recommendations of employing agency administrator.

   21. Multiple counts of violations of Section 943.13(7), F.S.

       
       

   22. Any behavior constituting "domestic violence" as defined by Section 741.28(1), F.S., shall be an aggravating circumstance.

   
   

   (7) The Commission shall impose one or more of the following penalties, listed in increasing order of severity:

   
   

   1. The issuance of a reprimand.

      
      

   2. Successful completion by the officer of any Basic Recruit, Advanced, or Career Development Training Program, or such retraining deemed appropriate by the Commission.

      
      

   3. Placement on a probationary status for a period not to exceed 2 years and subject to the terms and conditions imposed by the Commission. . . .

      
      

   4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

      
      

   5. Revocation of certification.

   
   

8. In its proposed recommended order, the Commission proposes that Respondent's certification be revoked for his having failed to maintain "good moral character." Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the undersigned agrees that, given the serious and repetitive nature of Respondent's misconduct and the absence of any substantial mitigating circumstances justifying a less severe penalty, revocation of Respondent's certification is the appropriate disciplinary measure to take against Respondent.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor.

DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 10th day of July, 1998.

ENDNOTES

1 On the election of rights form he signed and sent to the Commission, Respondent asserted that he "did not make any false statements at any time, in writing or otherwise, with respect to [his] employment at the Florida Highway Patrol."

2 The undersigned rejects as unpersuasive the argument made by Respondent, in his proposed recommended order, that these motorists' testimony was the product of either "faulty memor[y]" or a "motive to fabricate" and therefore should not be believed.

Having observed and heard these witnesses testify and carefully reviewed their testimony along with the other evidence adduced at hearing, the undersigned is of the firm conviction that these witnesses testified accurately and truthfully when they related that they had not received from Respondent the written warnings and faulty equipment notices bearing their names.

3 Section 943.13(4), Florida Statutes, provides that a law enforcement officer shall "[n]ot have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States." No violation of Section 943.13(4), Florida Statutes, is involved in the instant case.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Office of the General Counsel

Post Office Box 1489 Tallahassee, Florida 32302

Mark F. Carbonell, Esquire Garcia, Elkins & Carbonell, P.A. The Citizens Building, Suite 802

105 South Narcissus Avenue

West Palm Beach, Florida 33401

A. Leon Lowry, II, Director

Florida Department of Law Enforcement

Division of Criminal Justice Standards and Training Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Office of the General Counsel

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.

1 On the election of rights form he signed and sent to the Commission, Respondent asserted that he "did not make any false

statements at any time, in writing or otherwise, with respect to [his] employment at the Florida Highway Patrol."

2 The undersigned rejects as unpersuasive the argument made by Respondent, in his proposed recommended order, that these motorists' testimony was the product of either "faulty memor[y]" or a "motive to fabricate" and therefore should not be believed. Having observed and heard these witnesses testify and carefully reviewed their testimony along with the other evidence adduced at hearing, the undersigned is of the firm conviction that these witnesses testified accurately and truthfully when they related that they had not received from Respondent the written warnings and faulty equipment notices bearing their names.

3 Section 943.13(4), Florida Statutes, provides that a law enforcement officer shall "[n]ot have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States." No violation of Section 943.13(4), Florida Statutes, is involved in the instant case.

Docket for Case No: 97-005965

Orders for Case No: 97-005965