STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

PABLO BARRIOS, )

)

Respondent. )

Case No. 04-3177PL

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on December 15, 2004, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Pablo Barrios, pro se

13709 Southwest 13th Street Miami, Florida 33184

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official

duties, a failure that, if proved, would warrant the imposition of discipline upon Respondent's certificate.

PRELIMINARY STATEMENT

On August 6, 2004, Petitioner Criminal Justice Standards and Training Commission issued an Administrative Complaint against Respondent Pablo Barrios. Petitioner charged Respondent pursuant to Section 943.1395(7), Florida Statutes, with failure to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties, which latter act would constitute a misdemeanor under Section 837.06, Florida Statutes, if prosecuted criminally.

Mr. Barrios timely requested a formal hearing via an Election of Rights, to which was attached a letter setting forth his version of the events in question. On September 8, 2004, Petitioner filed the pleadings with the Division of Administrative Hearings, where an Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on December 15, 2004, with both parties present. Petitioner called Capt. Michael Wright as its only witness and offered Petitioner's Exhibits 1 through 3, which were received in evidence. Mr. Barrios testified on his own behalf and offered no exhibits or additional evidence.

At Petitioner's request, the undersigned took official recognition of Florida Administrative Code Chapter 11B-27.

The final hearing transcript was filed on January 18, 2005.

Petitioner timely filed a Proposed Recommended Order ahead of the enlarged deadline, which was February 11, 2005. Mr. Barrios submitted a post-hearing paper entitled "Brief stating position [and] Motion requesting to reopen hearing and allow or compel witness to testify." Mr. Barrios's "Brief" consists largely of irrelevant arguments founded on unproven allegations and materials that are not in evidence. To the extent it is not improper, Mr. Barrios's "Brief" merely repeats the positions he has taken throughout this proceeding and thus is cumulative.

Therefore, while the undersigned has reviewed the "Brief," it played no part whatsoever in the decision-making process. Mr. Barrios's "Motion" is hereby denied.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. Respondent Pablo Barrios ("Barrios") is a Florida- certified law enforcement officer and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Criminal Justice Standards and Training Commission ("Commission"). At the time of the final hearing, and at all times relevant to this

   case, Barrios was employed as a police officer by Florida International University ("FIU").

2. The events giving rise to this proceeding took place on July 17, 2003. That morning, Barrios attended an in-service training class taught by Sgt. Alfonso. There were about a dozen other FIU police officers in the class.

3. Shortly after the class began, Barrios and Sgt. Alfonso got into an argument over Barrios's use of a digital recorder. (Sgt. Alfonso was apparently offended that Barrios would record the lecture; Barrios claimed that he was merely using the device to keep track of the time.) Sgt. Alfonso asked Barrios to leave the classroom. Barrios did leave, remarking on his way out that if he (Barrios) had intended to turn on the recording device, he would first have told everyone in the "fucking room."

4. Barrios later returned to the classroom and sat in the back. The lesson proceeded to conclusion uneventfully.

5. When the class ended, Capt. Wright entered the room.

   
   

   Someone had reported the verbal altercation between Barrios and Sgt. Alfonso, and Capt. Wright was there to find out what had happened. To that end, Capt. Wright asked each of the officers present to prepare a statement describing the incident and stating specifically whether "improper language" had been used.

6. In response to Capt. Wright's request, Barrios wrote the following statement:

   I was single[d] out by Sergeant Alfonso for taking out [sic] a personal recorder out of my laptop bag.

   
   

7. Capt. Wright considered Barrios's statement to be incomplete. He therefore wrote the following question beneath Barrios's description of the event:

   Lt. Barrios, was improper language ever used during the incident.

   
   

   Barrios answered the captain's query, in writing, with one word: "No."1

   Ultimate Factual Determinations

   
   

8. The undersigned infers (and is convinced) that Barrios knew, when presented with Capt. Wright's imprecisely drafted question regarding the use of "improper language," that this interrogatory, though ambiguous and open to interpretation, was meant to require Barrios to either admit or deny using the "f" word during the incident.

9. The undersigned further infers (but is not convinced) that Barrios was likely aware that Capt. Wright would misinterpret Barrios's negative answer as an affirmation that no one (including Barrios) had uttered the word "fuck" or any of its cognates.

10. The undersigned is not clearly convinced, however, that Barrios intended to mislead Capt. Wright.2 Rather, since admitting that his language had been "improper" would have been

    tantamount to confessing misbehavior,3 Barrios likely intended to deny having engaged in inappropriate behavior.

11. The undersigned is also not clearly convinced that Barrios's statement was false, for two reasons. First, the undersigned is not convinced that Barrios believed his language to have been improper.4 To the contrary, the evidence persuades the undersigned that Barrios subjectively believed his words were justified. It is likely, in other words, that Barrios made what was, for him, a true statement.

12. Second, Barrios's statement has not been clearly and convincingly falsified——that is, shown via ordinary evidence to be objectively untrue. Because the adjective "improper" reflects an opinion or judgment about something, such an opinion could be falsified only if5 (among other things) there were a clear objective standard against which to measure or judge the thing in question.6 The Commission offered no evidence regarding such an objective standard for determining that Barrios's language was improper and hence failed objectively to falsify Barrios's denial that improper language had been used.7

13. In sum, the Commission failed clearly and convincingly to prove, as was its burden, that Barrios made a "false statement" with the intent to mislead Capt. Wright.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, and 120.57(1), Florida Statutes.

15. Section 943.1395, Florida Statutes, provides, in pertinent part, as follows:

    (7) 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),[8] 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.

    
    

16. The Commission has defined good moral character by enumerating specific behaviors that prove its absence. Florida Administrative Code Rule 11B-27.0011 provides in relevant part as follows:

    (4) For the purposes of the Criminal Justice Standards and Training 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 required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) The perpetration by an officer of an act that would constitute . . . the following misdemeanor . . . whether criminally prosecuted or not:

    1. . . . 837.06, [F.S.]

    
    

17. Under Section 837.06, Florida Statutes, it is a misdemeanor of the second degree to "knowingly make[] a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty[.]"

18. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Commission must prove the charges against Barrios by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection v.

    Osborne Stern & Co., 670 So. 2d 932, 935-36 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair

    v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

19. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

    Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that

    clear 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.

    
    

    Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

    denied, 599 So. 2d 1279 (1992)(citation omitted).

    
    

20. Turning to the merits, the undersigned finds State v.

    
    

    Mitchell, 666 So. 2d 955 (Fla. 1st DCA 1996), to be instructive regarding the interpretation of Section 837.06, even though

    Mitchell, being a per curiam affirmance, lacks precedential value. In Mitchell, the court's majority upheld a judgment of acquittal, finding that the government had failed to prove that the accused knowingly made false statements in writing with the intent to mislead a public servant. Judge Miner dissented, publishing an opinion that sheds light on the trial court's (and hence presumably the majority's) reading of the statute while offering his own view on the matter.

21. According to Judge Miner, the trial court9 had

    
    

    found that the terms "statement," "false," and "knowledge" as used in [Section 837.06] were ambiguous, requiring strict construction. Particularly, the court found that, under the statute, a statement of opinion could not serve as a basis for prosecution since the State could never show that such a "statement" was untrue.

    
    

    Id. at 956. Judge Miner believed, in contrast, that the statute was unambiguous and would support a conviction for making a knowingly false written opinion with the requisite intent to deceive. He opined that the state "need only prove that the accused knowingly made an untrue statement, in writing, with the intent to mislead a public servant in the performance of his or her official duty." Id.

22. Whatever his differences with the majority, Judge Miner appeared to acknowledge (and the undersigned concludes) that, to support a criminal conviction under this statute, the

    offending statement would need not only to be knowingly false (that is, subjectively false from the standpoint of the speaker) when made, but also to be false (that is, objectively, demonstrably untrue). This is an important point, because while practically any statement could conceivably be subjectively false, a statement cannot be proven objectively false unless it is, in form and content, falsifiable, i.e., capable of being tested and contradicted by conventional evidence.

23. From the foregoing it follows that making an objectively true statement is not a crime under the statute, even if the speaker believes the statement to be false and makes it with the intent to deceive. For example, a person who truly believed in a flat earth could not be convicted for writing to a public official that the earth is round in an attempt to deceive that official, because his statement would be only subjectively false and not also objectively untrue.

24. It also follows that it is not a crime to make a statement that cannot be contradicted by conventional proof, even if the speaker believes the statement to be false and makes it with the intent to deceive, for the tautologous reason that the government is incapable of disproving unfalsifiable statements.

25. At least some statements of opinion are clearly not falsifiable and thus could not support convictions under Section

    837.06, regardless of the speaker's intent. It is such opinions, the undersigned believes, that the trial court had in mind in acquitting the defendant in Mitchell. Other opinion statements, however, are capable of being proved untrue and thus could conceivably constitute crimes if made with the requisite intent to deceive. These latter types of opinions are probably what Judge Miner was thinking about when he wrote his dissent in Mitchell.

26. Some examples might clarify the analysis. Suppose, for example, a person says, "John Marshall was the greatest chief justice of U.S. Supreme Court ever." This statement cannot be proved untrue; it is simply not falsifiable. Indeed, even if the speaker actually believes that Earl Warren was the greatest chief, his statement is not, on its face, any less true or any more false, because such an impersonal contention is meritorious or not for reasons independent of, and extrinsic to, the speaker. The undersigned concludes, as the majority in Mitchell apparently did, that this sort of opinion statement could not serve as the basis for prosecution under Section 837.06.

27. Suppose, on the other hand, that the person says, "In my opinion, John Marshall was the greatest chief justice of all time." This statement, in contrast to the one above, is

    potentially falsifiable, because it is not simply an abstract,

    debatable contention, but rather a personal affirmation of the speaker's point of view, the relative weight or persuasiveness of which is largely dependent on the speaker's authority. If the speaker actually believes that Earl Warren was the greatest chief, then his statement is both subjectively false and objectively untrue. Putting aside the difficulty of proving that the speaker's actual opinion was other than as expressed, it seems that Judge Miner, at least, would have considered such an opinion statement criminal, if made with the intent to deceive.

28. For the reasons that follow, however, it is not necessary, in this case, to conclude, as the majority in Mitchell might have done, that no statement of opinion could ever be successfully prosecuted under Section 837.06.

29. First, it is concluded that Barrios's statement ("No improper language was ever used during the incident") is not falsifiable, as a matter of law. There is no way, via ordinary evidence, to prove that Barrios's statement——which lacks any explicit personal reference or connection——was objectively untrue,10 any more than an impersonal contention about John Marshall being the greatest chief justice could be falsified. Barrios's statement, therefore, could not support a conviction under Section 837.06.

30. Second, even if Barrios's statement could support a conviction assuming all the elements of the crime were proved, the Commission failed to establish clearly and convincingly, as matters of fact, that Barrios's opinion was both subjectively false and actually untrue. The undersigned's findings of fact in this regard are set forth in detail above.

31. Finally, as set forth above, the Commission failed to prove the element of mens rea.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Barrios not guilty of failing to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties.

DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 16th day of February, 2005.

ENDNOTES

1/ Later that same day, Barrios gave Capt. Wright a supplemental statement about the incident. This second statement adds nothing of relevance to the instant dispute.

2/ The undersigned believes it is likely that Barrios was indifferent to whether his response would mislead Capt. Wright, but the undersigned is not so convinced of this as to make the finding without hesitation, and in any event Barrios's likely indifference is probably irrelevant, for the requisite mens rea is intent to mislead.

3/ To underscore this point, suppose that Capt. Wright's question had been: Did you utter the word "fuck" or any of its variations during the incident? A negative answer by Barrios to that question about historical facts would have been knowingly false and constituted strong circumstantial evidence of an intent to mislead. A truthful answer, on the other hand, would have left open the question whether such language was "improper" and hence potentially disciplinable. In contrast, Capt.

Wright's actual question, though probably intended to be the functional equivalent of the hypothetical query just framed, was in fact loaded, inasmuch as an affirmative answer would have had Barrios not simply confirming the language he used, but condemning it as "improper"——a term that obviously reflects a negative value judgment about what was said.

4/ This is not inconsistent with the finding above that Barrios knew that Capt. Wright's reference to "improper language" contemplated the "f" word. Knowing that Capt. Wright regarded the "f" word as improper did not compel Barrios to share Capt.

Wright's view.

5/ Whether particular language was "improper" when uttered is an opinion that follows from the application of a rule (or standard of conduct) to relevant historical facts such as what was said, to whom, and in what context. Thus, a determination that the phrase "fucking room" was "improper" when spoken by Barrios in the classroom on July 17, 2003, would constitute an ultimate determination, reflecting the decision-maker's exercise of reason, discretion, and judgment. Whether such an opinion statement is falsifiable, as a matter of law, is discussed in the Conclusions of Law portion of the Recommended Order.

6/ For a value judgment regarding propriety to be objectively true or false, the standard would need to be so clear and unambiguous as to admit only one reasonable conclusion when applied to the thing being judged. This is because if reasonable people, applying the same objective standard, could disagree about whether the thing in question was proper or not, then neither opinion could fairly be deemed "true" or "false."

7/ In this particular case, the Commission would have needed to prove not only the existence of an objective standard for determining the impropriety of the language in question; and not only that Barrios's language was clearly improper under such standard; but also that Barrios had denied the impropriety of his language according to that same standard (as opposed to, for example, his personal ethics) while at the same time knowing that his language was improper under the objective standard.

Given the ambiguity of Barrios's statement, such evidence would have been difficult, if not impossible, to marshal.

8/ Section 943.13(7), Florida Statutes, provides that all certified law enforcement officers must have "a good moral

character as determined by a background investigation under procedures established by the commission."

9/ The trial court was Judge Padovano, who is now a judge of the First District Court of Appeal.

10/ To be sure, there are undoubtedly many people who would readily label Barrios's language improper, according to their personal standards of conduct, just as there are surely others who would not consider Barrios's words improper under the circumstances, again pursuant to personal standards. Either opinion, however, is subjective; neither is objectively true or false.

COPIES FURNISHED:

Pablo Barrios

13709 Southwest 13th Street Miami, Florida 33184

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professional Services 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

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: 04-003177PL

Orders for Case No: 04-003177PL