Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings, in DeFuniak Springs, Florida. The hearing was conducted on November 4, 1998.
For Petitioner: James D. Martin, Esquire
For Respondent: H. R. "Bob" Bishop, Jr., Esquire
Florida Police Benevolent Association, Inc.
The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
This cause arose upon the filing of an Administrative Complaint charging that the Respondent violated Section 943.1395(6) and (7), Florida Statutes, and Rule
11B-27.0011(4)(b)(c), Florida Administrative Code. It is thus charged that Respondent failed to maintain the qualifications required by Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by law enforcement officers licensed by the state. Specifically, it is charged that on or about April 12, 1997, the Respondent unlawfully committed a battery upon one Dan Robertson. The Administrative Complaint charges him, in two counts, with twice committing a battery on Mr. Robertson, and with making a false statement concerning material matters to officials of the Florida Department of Law Enforcement, with an intent to mislead them regarding his actions, the actions of the prisoner and conversations about these actions with other officers, on April 12, 1997. All three instances of misconduct are charged as being volative of the above-cited statutes and rules.
The Respondent elected to dispute the allegations in the Administrative Complaint and requested a formal hearing, with the case being duly referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge. The case was noticed for hearing and a formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on the above referenced date.
The cause came on for hearing as noticed. At the hearing, the Petitioner and Respondent stipulated to the admission of Petitioner's Exhibits one through five, and to the fact of employment with the DeFuniak Springs Police Department, from October 29, 1995, to November 13, 1997. The Petitioner presented the testimony of five witnesses: Daniel Robertson, James Burnham, Travis Howell, Bradley Stafford and special agent Carl Causey of the Florida Department of Law Enforcement. The Respondent presented the testimony of two witnesses: Kenneth G. May, the Respondent himself, and Clinton Hooks. Upon concluding the proceeding a transcript thereof was ordered. The parties agreed upon a briefing schedule, with an additional extension of time in the submission of proposed recommended orders being granted. The proposed recommended orders submitted by the parties have been considered in the rendition of this Recommended Order.
The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice
standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997.
On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol.
While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer.
Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back.
Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back.
Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated
in the car with his hands cuffed behind his back.
Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray.
Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted.
The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the
civilian who rode with Officer Howell on the night in question, as well as the Respondent.
Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car.
Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Petitioner, as the moving party in this proceeding, who is seeking to discipline the licensure status of the
Respondent, bears the burden of proof. That burden of proof is one of clear and convincing evidence that the Respondent committed the acts charged in the Administrative Complaint.
Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
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.
In Zemour, Inc. V. Division of Beverage, 347 So. 2d 1102 (Fla. 1st D.C.A. 1977), an applicant for a beverage license was denied after an administrative finding that the owner was not of good moral character. The court's definition of good moral character is pertinent to this proceeding:
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.
In Florida Board of Bar Examiners Re: G.W.L.,
364 So. 2d 454 (Fla. 1978), the Florida Supreme Court, in a case involving admission to the Bar, stated that a finding of a lack of "good moral character,"
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 of the rights
of others and for the laws of the state and nation.
See also White v. Beary, 237 So. 2d 263 (Fla. 1st D.C.A. 1970).
The position of Law Enforcement Officer is one of great public trust. The public expects those who enforce the public's laws to obey the laws themselves. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th D.C.A. 1989).
Rule 11B-27.0011(4), Florida Administrative Code, defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement an correctional officers. This was the applicable rule section in effect at the time the Respondent allegedly committed the violations set forth in the complaint. That rule states in pertinent part:
(4) For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:
The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections. . . 784.03. . 796.07. .
The perpetration by the officer of an act or conduct which constitutes:
6. False statements.
Section 784.03, Florida Statutes, provides, in pertinent part, as follows:
(1)(a) The offense of battery occurs when a person:
Actually and intentionally touches or strikes another person against the will of other; or
Intentionally causes bodily harm to another person.
(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, . . .
Section 943.1395(7), Florida Statutes, provides that:
Upon a finding by the commission that a certified officer has not maintained a good moral character. . . the commission may enter an order imposing. . . penalties which include revocation, suspension, probation and/or a reprimand.
Rule 11B-27.005(5), Florida Administrative Code, provides that:
When the Commission fines 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:
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), Florida Administrative Code,. . . but where there is not a violation of section 943.13(4), Florida Statutes, 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:
Violation
2. Battery (784.03)
Recommended Penalty Range:
Suspension of Certificate
For the perpetration by the officer of an act or conduct, as described in Rule 11B- 27.0011(4)(c), Florida Administrative Code, 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 circumstance include the following:
Violation:
6. False statements Recommended Penalty Range:
Probation of certification to revocation
Rule 11B-27.005, Florida Administrative Code, provides:
(4) The Commission sets forth in paragraph 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), Florida Statutes. The
disciplinary guidelines are based upon a single count violation of each provision listed
(6) The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to. . .
a hearing officer, if pursuant to Section 120.57(1), Florida Statutes, prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one
or more of the following aggravating or mitigating circumstances.
(b) Whether the misconduct was committed while the officer was performing his or her other duties.
(e) The number of violations found by the Commission.
(g) The severity of the misconduct.
(k) The actual damage, physical or otherwise, caused by the misconduct.
(u) Multiple counts of violations of Section 943.13(7), Florida Statutes.
The aggravating circumstances shown by the above facts involve the violations being multiple ones and the severity of the misconduct in the sense that the two assaults on
Mr. Robertson occurred, the slapping and the spraying of pepper spray, while Robertson was handcuffed with his hands behind his back. It is also true, of course, that the misconduct was committed while the Respondent was performing in the line of duty. The Petitioner has shown by clear and convincing evidence that, in these circumstances and on this occasion, the Respondent failed to maintain good moral character within the meaning of the above cited and quoted authority.
Having considered the charges in the complaint and the evidence culminating in the above Findings of Fact, it is determined that, within the range of the above-referenced penalty provisions, that the penalty of a six-month suspension of certificate followed by a one-year probationary period be imposed
