STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

JERRY P. SHIPMAN, )

)

Respondent. )

Case No. 01-1525PL

)

RECOMMENDED ORDER

On July 19, 2001, a formal administrative hearing in this case was held in Naples, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gabrielle Taylor, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32303-1489

For Respondent: H. R. Bishop, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the

Respondent are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 19, 1999, the Criminal Justice Standards and Training Commission (Petitioner) filed an Administrative Complaint against Jerry P. Shipman (Respondent) alleging that the Respondent had been in control of a motor vehicle while under the influence of alcoholic beverages and, therefore, failed to maintain qualification (specifically good moral character) for employment as a Correctional Officer. By response dated December 30, 1999, the Respondent requested a formal hearing on the allegations. On April 23, 2001, the Respondent's request was forwarded to the Division of Administrative Hearings, which scheduled the proceeding.

During the hearing, the Petitioner presented the testimony of three witnesses and had Exhibits Numbered 1-3 admitted into evidence. The Respondent testified on his own behalf and presented the testimony of five witnesses.

A Transcript of the hearing was filed August 16, 2001. Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility for certification of Correctional Officers within the State of Florida.

2. The Respondent is employed as a Correctional Officer at the Hendry County Correctional Institution.

3. On December 25, 1998, the Respondent worked an

   
   

   8:00 a.m. to 4:00 p.m. shift as a Correctional Officer. After leaving his shift, the Respondent went home, showered, ate dinner, gathered Christmas gifts for his brother's family, and left the house with his wife.

4. He took his wife to the "Eagles" club and returned to his house to take his wife's children to their father's house. He then drove to his brother's house, about an hour from the Respondent's home, where he visited and exchanged gifts.

5. At about 11:00 p.m., the Respondent departed from his brother's house and went to the "Eagles" club, where he learned his wife had gone to the "Moon Cricket" bar. The Respondent proceeded on to the bar where he met his wife and friends.

6. While at the bar, the Respondent consumed an indeterminate quantity of beer in the two hours remaining until closing time. The bar is small, and a "party" atmosphere prevailed. Apparently beverage orders were not taken, rather the bar's owner (a friend of the Respondent's) repeatedly brought bottled beers to the table. It is not possible to quantify the Respondent's consumption in a credible manner.

7. When the bar closed shortly after 2:00 a.m. on December 26, 1998, the Respondent collected his wife, who was

   admittedly intoxicated, along with additional quantities of beer, and began to drive home.

8. At approximately 2:30 a.m. on December 26, 1998, the Respondent was observed by Collier County Sheriff Deputy Tom Amey to be driving without headlights.

9. Deputy Amey has completed substantial training in detection of persons driving under the influence of alcohol or other substances and in conducting field sobriety evaluation.

10. At the time of initial observation, the Respondent's truck was stopped at an intersection facing towards Deputy Amey's vehicle. Deputy Amey flashed his headlights apparently to remind the Respondent to turn on the headlights, but got no response from the Respondent.

11. When the Respondent proceeded through the intersection without headlights, Deputy Amey turned his vehicle around, followed, and then stopped the Respondent.

12. After approaching the Respondent's vehicle, Deputy Amey asked for the Respondent's license and registration. The Respondent responded very slowly and deliberately to the deputy's instructions, fumbling with his wallet as he removed the documents.

13. Deputy Amey observed that the Respondent's eyes were "glassy" and "bloodshot" and that there was a "moderate odor” of alcohol present. Deputy Amey also observed "cool, fresh" beer

    located on the front floorboard and the rear floorboard of the Respondent's extended cab truck.

14. Deputy Amey asked the Respondent to exit the truck and the Respondent did so slowly. While talking to the Respondent, Deputy Amey observed that the Respondent's speech was slightly slurred and "thick-tongued."

15. Deputy Amey asked the Respondent to submit to a field sobriety exercise. The Respondent stated that his knee prevented him from completing the physical tests. Deputy Amey administered the "horizontal gaze nystagmus" (HGN) test.

16. Nystagmus is an involuntary eye motion (described as a "jerkiness") typically exhibited by persons under the influence of alcohol or other central nervous system depressants.

17. The HGN test is a standard part of the field sobriety evaluation. An HGN test permits the observation of the level of "jerkiness" in a person's eyes. Normally, a person's eyes appear to move smoothly. Under the influence of alcohol or other substances, a person's ability to control eye movement is diminished, and a "jerky" motion is observable. Deputy Amey has received specific training related to administration of the HGN test.

18. Upon observing the Respondent's eye movement during the test, Deputy Amey reported that the onset of the

    Respondent's nystagmus was "almost immediate" and "very distinct."

19. Based on the deputy's observation, the Respondent was placed under arrest for driving under the influence and was transported to the "stockade" in Immokalee, Florida.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding.

    Section 120.57(1), Florida Statutes.

    
    

21. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

22. In material part, the Administrative Complaint filed in the case alleges that the Respondent was in actual physical control of a vehicle while under the influence of alcoholic beverages when affected to the extent that his normal faculties were impaired. Such activity constitutes "driving under the influence" as defined at Section 316.193, Florida Statutes.

23. In this case, based on the credited testimony of Deputy Tom Amey, the evidence establishes that at the time of Respondent's arrest on December 26, 1998, the Respondent was "driving under the influence."

24. Section 943.13, Florida Statutes, sets forth the minimum qualifications for certification as a law enforcement officer, including Correctional Officers, including the requirement of "good moral character."

25. Rule 11B-27.0011(4)(b)1., Florida Administrative Code, provides that driving under the influence (identified as a violation of Section 316.193, Florida Statutes, whether or not the violation was criminally prosecuted) constitutes a failure to maintain good moral character.

26. Section 943.1395(7), Florida Statutes, and Rule 11B- 27.005(5), Florida Administrative Code, set forth the range of penalties appropriate to this case. Specifically Rule 11B- 27.005(5)(b)10., Florida Administrative Code, provides that, absent aggravating or mitigating circumstances, a driving under the influence violation warrants probation and counseling. There is no evidence of aggravating or mitigating circumstances that suggest deviation from the established penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a Final Order imposing a one-year probationary period and requiring such counseling as the Department deems appropriate.

DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001.

COPIES FURNISHED:

H. R. Bishop, Jr., Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

Gabrielle Taylor, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32303-1489

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

Tallahassee, Florida 32302

Rod Caswell, Program Director

Criminal Justice Professionalism Services Florida Department of Law Enforcement 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: 01-001525PL

Orders for Case No: 01-001525PL