STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

DEREK C. FLOYD, )

)

Respondent. )

Case No. 12-2168PL

)

RECOMMENDED ORDER

On September 18, 2012, an administrative hearing in this case was held by video teleconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Derek C. Floyd

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations in the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 18, 2011, the Criminal Justice Standards and Training Commission (Petitioner) alleged that Derek C. Floyd (Respondent) failed to maintain "good moral character," a requirement for certification as a law enforcement officer in Florida, by having been twice cited for driving under the influence (DUI). The Respondent disputed the allegation and requested an administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had one exhibit admitted into evidence. The Respondent presented the testimony of one witness and testified on his own behalf.

A Transcript of the hearing was filed on October 2, 2012.

The Petitioner filed a Proposed Recommended Order that was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was certified as a law enforcement officer by the Petitioner.

2. On the evening of July 13, 2010, the Respondent was observed driving erratically by Deputy Mark Buswell, an officer of the Hillsborough County Sheriff's Office.

   
   

3. After observing the Respondent driving for a distance, Deputy Buswell executed a traffic stop, at which time he smelled the odor of alcohol on the Respondent. In response to Deputy Buswell's inquiry, the Respondent denied having consumed alcohol.

4. Deputy Buswell asked the Respondent to step out of the truck and observed that the Respondent was unsteady on his feet and swaying. Deputy Buswell then administered a series of sobriety tests to the Respondent. Based on his observations, and his training and experience as a law enforcement officer, Deputy Buswell believed that the Respondent had been driving under the influence of alcohol. Deputy Buswell arrested the Respondent for DUI, a violation of section 316.193, Florida Statutes (2010).1/

5. After the arrest, Deputy Buswell twice asked the Respondent to submit to a breath alcohol test, and, on both occasions, the Respondent declined to take the test.

6. The Respondent had previously been arrested for DUI. CONCLUSIONS OF LAW

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

   §§ 120.569 and 120.57, Fla. Stat. (2012).

   
   

8. The Petitioner bears the burden of proving that the Respondent committed the violation alleged in the Administrative Complaint by clear and convincing evidence. Dep't of Banking &

   
   

   Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris

   
   

   v. Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

9. Section 943.13(7), Florida Statutes, provides that a law enforcement officer must "have a good moral character" as determined by the Petitioner.

10. Section 943.1395(7) provides as follows:

    
    

    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.

    
    

11. In relevant part, Florida Administrative Code Rule 11B- 27.0011(4)(b) defines "failure to maintain good moral character" to include the "perpetration" by a law enforcement officer of an

    
    

    act that would constitute a violation of section 316.193, whether or not the violation was prosecuted. Section 316.193 specifically prohibits DUI and sets forth related penalties.

    Accordingly, the Petitioner has established that the Respondent failed to maintain good moral character.

12. Rule 11B-27.005(5)(b) sets forth the range of penalties applicable to the facts of this case. The Petitioner's recommended penalty of permanent revocation of the Respondent's certification is within the range set forth in the rule.

13. Because the arrest on July 13, 2010, was the second time the Respondent had been arrested for DUI, the penalty recommended by the Petitioner is appropriate under the facts set

forth herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Criminal Justice Standards and Training Commission enter a final order permanently revoking the certification of Derek C. Floyd as a law enforcement officer.

DONE AND ENTERED this 2nd day of November, 2012, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2012.

ENDNOTE

1/ References to Florida Statutes are to the 2010 version, unless otherwise stated.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Derek C. Floyd

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

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

Tallahassee, Florida 32302-1489

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: 12-002168PL

Orders for Case No: 12-002168PL