STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JAMIE GONZALEZ, )

)

Respondent. )

Case No. 04-4023PL

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on December 22, 2004, in Sanford, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Jamie Gonzalez, pro se

1041 Sugarberry Trail

Oviedo, Florida 32765 STATEMENT OF THE ISSUE

Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.

PRELIMINARY STATEMENT

On May 7, 2004, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint alleging that on September 13, 2002, Respondent, Jamie Gonzalez, drove a motor vehicle while under the influence of alcoholic beverages, and that on the same date he committed an assault on a law enforcement officer while the officer was engaged in the lawful performance of her duties, further alleging that this conduct evidenced lack of "good moral character," so as to warrant disciplining Respondent's certification as a law enforcement officer. On June 7, 2002, Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a final hearing before an Administrative Law Judge.

On November 5, 2004, the matter was forwarded by Petitioner to the Division of Administrative Hearings, requesting that the matter be assigned to an Administrative Law Judge for hearing.

On that same day, an Initial Order was sent to both parties. Based on the responses of the parties to the Initial Order, the case was scheduled for final hearing on December 22, 2004, in Sanford, Florida.

The final hearing took place as scheduled. Petitioner presented three witnesses: Amanda Carter, Heather Capetillo, and Willie Chealey, and offered seven exhibits, which were

received into evidence and marked Petitioner's Exhibits 1 through 7. Respondent testified on his own behalf.

The Transcript of Proceedings was filed with the Division of Administrative Hearings on February 15, 2005. Both Petitioner and Respondent submitted Proposed Recommended Orders which were thoughtfully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162.

2. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing.

3. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route.

4. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city.

5. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits.

6. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road.

7. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed.

8. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within

   the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence.

9. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good.

10. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park.

11. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's

    vehicle, screaming that "the man had a gun" or words to that effect.

12. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser.

13. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately

    50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing."

14. She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger.

15. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was

    no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free.

16. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed.

17. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.569, Fla. Stat. (2004).

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

20. The "clear and convincing" standard requires:

    
    

    [T]hat 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 Slomowitz

    
    

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

    
    

21. Disciplining a professional license, such as a law enforcement certification, is penal in nature. Statutes that authorize the imposition of penal sanctions must be strictly construed, and any ambiguity must be construed in favor of Respondent. Elmariah v. Department of Business and Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

22. Paragraph 3 of the Administrative Complaint which is the charging document in the case alleges:

    The actions of Respondent did violate the provisions of Section 316.193 and/or 784.07 or any lesser included offenses, 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.

    
    

23. Section 943.13, Florida Statutes (2002), establishes the minimum qualifications for law enforcement officers in Florida. Subsection 943.13(7), Florida Statutes, states in part that they must

    [h]ave a good moral character as determined by a background investigation under procedures established by the commission.

24. Florida Administrative Code Rule 11B-27.0011(4) 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:

    1. 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:

       
       

       1. perpetration by an officer of an act that would constitute a felony, whether prosecuted or not.

          
          

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or

          not: . . . 316.193.

          
          

25. Subsection 784.07(2), Florida Statutes (2002), reads, in pertinent part:

    Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer, . . . while the officer . . . is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows:

    
    

    (a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

    
    

    * * *

    
    

    (c) In the case of aggravated assault, from a felony of the third degree to a

    felony of the second degree. Notwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years.

    
    

26. Subsection 943.1395(7), Florida Statutes (2002), reads, in pertinent part:

    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), 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.

    
    

27. The evidence presented does not establish "clearly and convincingly" that Respondent violated Section 784.07, Florida Statutes (2002), as alleged in the Administrative Complaint. He was immediately responsive to each directive given him by

    Officer Capitello. When asked, "Where is the gun?" he responded appropriately. When told to raise his hands, Respondent immediately raised his hands, revealing his handgun. When directed to drop the weapon, he did so immediately. Having considered himself to be a potential robbery victim, he was relieved to see a law enforcement officer. He had armed himself prior to the officer's arrival in an effort to protect himself from seven individuals who were unknown to him and had trapped him late at night in a remote place. There is no demonstration that Respondent intended to assault Officer Capitello. Her reaction, fear, is appropriate under the chaotic circumstances that were presented. However, Respondent's initial reaction when confronted late at night by seven individuals and a blocked roadway, arming himself for self-protection, was not inappropriate. The resulting presence of Respondent's firearm was circumstantial and not intended as a threat to Officer Capitello.

28. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), a corporate applicant for a beverage license was denied after an administrative finding that the applicant's owner was not of good moral character. The court’s definition of moral character is significant.

    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.

    
    

29. However, the court in Zemour also stated that one act or indiscretion may not demonstrate bad moral character. Indeed, in finding Mr. Zemour had not demonstrated that he was a person of good moral character, the court pointed to

    Mr. Zemour’s multiple violations of the law. Id. at 1105.

    
    

30. Petitioner’s rules do not mandate that violation of Section 316.193, Florida Statutes (2002), automatically demonstrates bad moral character which leads to discipline. One DUI is factually insufficient to show that a person is not of good moral character. Wash & Dry Vending Co. v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco,

429 So. 2d 790 (Fla. 3rd DCA 1983); Zemour, supra. Therefore, Petitioner has not shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Subsection 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4).

RECOMMENDATION

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

RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 9th day of March, 2005.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jamie Gonzalez

1041 Sugarberry Trail

Oviedo, Florida 32765

Michael Crews, Program Director Division of Criminal Justice

Professionalism 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: 04-004023PL

Orders for Case No: 04-004023PL