STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

HERMAN L. TYLER, )

)

Respondent. )

Case No. 07-1282PL

)

RECOMMENDED ORDER

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

Jeff B. Clark, held a formal administrative hearing in this case on May 22, 2007, in Haines City, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent, Herman L. Tyler, failed to fulfill provisions of a Stipulation and Settlement Agreement entered into between the parties, dated February 22, 2005, that became part of a Final Order of Petitioner, Department of Law

Enforcement, Criminal Justice Standards and Training Commission; and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On May 10, 2005, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, entered a Final Order requiring Respondent, Herman L. Tyler, to comply with a Stipulation and Settlement Agreement entered into by the parties on February 22, 2005, which, in part, required Respondent to provide Petitioner with proof of completion of an approved ethics course within one year.

On September 12, 2006, an Administrative Complaint was entered by Petitioner alleging Respondent "failed to comply with a lawful order of the Commission previously entered in a disciplinary proceeding." It is further alleged that this failure was occasioned by Respondent's "not submitting to staff proof of successful completion of an ethics course."

On December 30, 2006, Respondent executed an Election of Rights advising Petitioner that he disputed the allegations of the Administrative Complaint and attached a letter specifying the basis of his dispute. Respondent's Election of Rights and attached letter were received by Petitioner on January 3, 2007.

On March 19, 2007, Petitioner forwarded a Request for Assignment of Administrative Law Judge to the Division of Administrative Hearings. An Initial Order was sent to both

parties on March 20, 2007. On March 30, 2007, the case was scheduled for final hearing in Haines City, Florida, on May 22, 2007.

The case was presented as scheduled with the undersigned and a court reporter in Haines City, Florida, and counsel for Petitioner and Petitioner's witness in Tallahassee, Florida, appearing by telephone. Petitioner presented one witness, Tijuana L. Comer, a case specialist with Petitioner, and presented one exhibit, her Affidavit with attachments, which was admitted into evidence as Petitioner's Exhibit 1.

Respondent did not present himself at the hearing; as a result, no defense was presented.

No transcript of the proceedings was prepared.

Petitioner timely submitted a Proposed Recommended Order.

FINDINGS OF FACT

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

1. Respondent is a state-certified law enforcement officer and instructor holding certificates in each area of certification.

2. On May 10, 2005, Petitioner issued a Final Order adopting a Stipulation and Settlement Agreement between the parties. The Stipulation and Settlement Agreement specifically states in paragraph 2, the following:

   The Respondent agrees as a condition of settlement of this cause to a one-year period of probation of his Instructor Certificate beginning fifteen days following entry of a final order in this cause.

   
   

3. The Stipulation and Settlement Agreement specifically states in paragraph 3, the following:

   As a condition of probation, the Respondent shall enter into and provide Staff with proof of successful completion of Criminal Justice Standards and Training Commission or Staff-approved course in ethics prior to the expiration of the term of his probation.

   
   

4. As noted above, the Final Order required Respondent to provide proof of his completion of an approved ethics course within a one-year period of probation.

5. The Respondent failed to provide proof of completion of an approved ethics course as required.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Subsection 120.57(1), Florida Statutes (2006).

7. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

8. The following statement has been repeatedly cited in discussions of the "clear and convincing" evidence standard:

   [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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

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

   
   

9. The Administrative Complaint alleged that Respondent violated Florida Administrative Code Rule 11B-27.005(3) by failing "to comply with a lawful order of the Commission . . . entered in a disciplinary proceeding." The cited code section provides, in pertinent part:

   (3) Pursuant to the provisions of Section 943.1395(8), F.S., disciplinary proceedings shall be conducted as prescribed in Chapter 120, F.S., Administrative Procedures Act, and Rule Chapter 28, F.A.C., Uniform Rules of Procedure, when there is a determination of probable cause that a certificate holder, hereinafter referred to as a "certified officer," has failed to maintain compliance with:

   
   

   * * *

   
   

   1. An order of the Commission previously issued during a disciplinary

      hearing; . . . .

10. On May 10, 2005, Petitioner entered a Final Order in a disciplinary proceeding placing Respondent's instructor certificate on probation and requiring Respondent to provide proof of his completion of an approved ethics course within one year.

11. Petitioner has established clearly and convincingly that Respondent failed to provide proof of completion of an approved ethics course within the specified probationary period.

12. Florida Administrative Code Rule 11B-27.005(7)(c)7. provides:

    The effective date of any period of probation imposed on a respondent by the Commission shall begin fifteen days from the filing date of the Final Order, unless such probation is to follow a period of prospective suspension. Commission staff shall monitor the probation status of each officer to ensure compliance with the conditions of probation. Commission staff shall report to the Commission satisfactory completion of probation, as well as any violations of the conditions of probation.

    If the officer violates any of the conditions of probation, Commission staff shall report the violations to the Commission for consideration of further disciplinary action, pursuant to subsection

    (3) of this rule section and Section 943.1395(7)(c), F.S.

    
    

13. Subsection 943.1395(7)(c), Florida Statutes (2005), reads, 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), the commission may enter an order imposing one or more of the following penalties:

* * *

1. 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.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order revoking Respondent, Herman L. Tyler's, instructor certificate.

DONE AND ENTERED this 11th day of June, 2007, 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 11th day of June, 2007.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Herman L. Tyler

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 07-001282PL

Orders for Case No: 07-001282PL