vs. )
BRIAN T. HART, )
Respondent. )
Case No. 12-3606PL
On January 18, 2013, a duly-noticed hearing was conducted pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012), by Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.
For Respondent: Brian T. Hart, pro se
The issue to be determined is whether Respondent, Brian T. Hart (“Respondent” or “Mr. Hart”), failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and if so, what penalty should be imposed?
On May 9, 2012, Petitioner, the Criminal Justice Standards and Training Commission (“Petitioner” or “the Commission”), filed an Administrative Complaint against Respondent, charging him with violating section 943.1395(7) and Florida Administrative Code Rule 11B-27.0011(4)(b). Specifically, the Administrative Complaint alleges that: 1) on January 24, 2011, Respondent committed the offense of battery on Sabrina Parker, by touching or striking her or intentionally causing bodily harm against her will; and 2) on or between March 1, 2010 and January 31, 2011, Respondent committed a battery on Lauren Bauer, a family member or person with whom he is in a dating relationship, by touching or striking her or intentionally causing bodily harm to her against her will.
On September 4, 2012, Respondent executed an Election of Rights form in which he disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1). On November 5, 2012, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
The case was originally noticed for hearing to take place on January 4, 2013. At the request of Petitioner, it was rescheduled for January 18, 2013, and proceeded as scheduled.
Respondent requested and was allowed to participate by telephone.
At hearing, Petitioner called Investigators Gregory Wilder and Angie Booth of the Tallahassee Police Department, and Lauren Bauer. Petitioner’s Exhibits 1-2 were admitted without objection. Respondent testified on his own behalf and submitted no exhibits.
A one-volume Transcript was filed with the Division on February 7, 2013. Petitioner filed a Proposed Recommended Order on February 26, 2013. To date, no post-hearing submission has
been filed by Respondent.
No direct evidence was presented at hearing to establish that Respondent held a certification issued by the Criminal Justice Standards and Training Commission. However, at all times relevant to these proceedings, Respondent was employed by the Tallahassee Police Department (“TPD”) as a police officer. Evidence was presented that he had been hired by the Tampa Police Department, and Respondent was identified consistently as a “cop” or “officer.” It does not appear from the record that Respondent’s status as a certified law enforcement officer is in dispute in this proceeding.
On or about August 15, 2011, an Order of Judgment and Sentence was filed in the Second Judicial Circuit, in Leon County, in the case of State of Florida v. Brian Hart, Case No. 2011-MM511. Although there was testimony indicating that
Respondent was convicted by a jury of his peers, the Order of Judgment and Sentence does not indicate whether the judgment, for which adjudication was withheld, was a result of a plea of guilty or nolo contendere, or as a result of a trial. Respondent, his counsel, and the Assistant State Attorney signed the document, implying that it was more likely a result of a plea agreement of some sort. In any event, adjudication was withheld and Respondent was sentenced to 12 months’ probation, with no contact with the victim, and random alcohol screens.1/
Officer Gregory Wilder investigated the allegation of battery lodged against Respondent. The charge stemmed from an incident at AJ’s Sports Bar (“AJ’s”) where Respondent allegedly grabbed a female patron at the back of the neck and pushed her head down to his crotch. While Officer Wilder testified regarding his investigation of the incident leading to the battery charge against Respondent, he was not present when the alleged battery occurred and did not have responsibility for the investigation until the day after the incident.
No competent evidence was presented to demonstrate the basis for the battery charge, in that no person who was involved in or a witness to the incident testified at hearing. Respondent admitted being at AJ’s the night of the alleged incident, and consuming several alcoholic beverages, but consistently denied any memory of interaction with the victim.
In the course of Officer Wilder’s investigation, he received information indicating that Respondent was or had been involved in an abusive domestic relationship with his girlfriend, Lauren Bauer. Officer Wilder arranged to speak with Ms. Bauer to ask her about her relationship with Respondent.
Ms. Bauer met with Officer Wilder at the police department on January 11, 2011, at his request. Consistent with her testimony at hearing, Ms. Bauer indicated that she began seeing Respondent in March 2010, and during that time she maintained her own apartment but slept most of the time at Respondent’s apartment.
Respondent’s relationship with Ms. Bauer lasted for approximately ten months. During that time, the couple had discussed getting married and moving to Tampa. Ultimately,
Ms. Bauer had concerns about Respondent’s drinking and problems with anger management, which led to the termination of the relationship approximately two weeks before she spoke to Officer Wilder.
During the course of the relationship, Respondent was verbally and physically abusive toward Ms. Bauer. The abuse began as verbal outbursts, and escalated to physical abuse approximately 2-3 months into the relationship, when he threw a water bottle at her and hit her in the forehead. On another occasion, sometime in late summer of 2010, he held her in a
chokehold in order to take his phone from her, and spit in her face repeatedly.
On October 26, 2010, Ms. Bauer had planned a party at AJ’s Sports Bar for her brother’s 21st birthday. She had asked Respondent to attend the party while she was planning the event. The night before, however, the two of them had a fight. On the evening of the party, Respondent called Ms. Bauer and asked her to come over to his apartment so that they could “make up” and he could go with her to the event. However, when she arrived at Respondent’s apartment, Respondent was already intoxicated.
Ms. Bauer testified that there were four bottles of wine on the table, that Respondent’s speech was slurred, and that he smelled of alcohol.
Given Respondent’s condition, Ms. Bauer decided it would be better if Respondent did not attend the party, but Respondent was insistent that he would attend. When she went to her car to leave, he followed her and tried to prevent her from entering the car. While she was able to get in the car and leave the premises, it was not before he hit her car door and tried pulling her out of the car.
Ms. Bauer picked up a friend and both went to the party for her brother at AJ’s. Despite her asking Respondent not to attend, he showed up at AJ’s, still clearly intoxicated, and kept trying to talk to her. She asked him to go home, and he refused,
grabbing her arm and pulling her off of her barstool. Ms. Bauer did not want a confrontation and was afraid that Respondent would hit her in public. To avoid any further confrontation, she cashed out and left the sports bar.
Ms. Bauer attempted to but did not obtain an injunction against Respondent to leave her alone. No competent evidence was received with respect to why the injunction was denied. From the evidence presented, Respondent and Ms. Bauer had an “on again-off again” relationship, and she had continued to see him even after experiencing abuse. However, Officer Angie Booth testified credibly that it is not uncommon for victims to continue a relationship that includes abuse. Ms. Bauer’s testimony that she hoped Respondent could resolve his anger management and alcohol issues is credited.
Investigator Wilder completed a probable cause affidavit and forwarded the domestic abuse investigation to the State Attorney’s Office for review. Although charges were filed, the case was never prosecuted because of an unspecified “legal technicality” related to the timing of the charge.
Once the battery charges were filed, the TPD suspended Respondent and placed him on administrative leave. In addition, the TPD initiated an internal affairs investigation, which was conducted by Investigator Angie Booth. As a result of the investigation, on April 18th, 2011, Investigator Booth completed
an Internal Affairs Unit report, and recommended that Respondent violated the TPD’s General Order 46 in three respects: that he committed conduct unbecoming an officer; a violation of laws or rules; and alcohol abuse. All three recommendations were sustained, and Respondent’s employment with the TPD was terminated.
Respondent contends that Ms. Bauer is simply bitter and vengeful over the break in their relationship. While he admits that they often argued, he claims that he never abused her, and points to the fact that the TPD investigation did not include physical evidence of abuse.
Ms. Bauer, however, did not initiate the investigation against Respondent. She was contacted by law enforcement because of information gained from other sources pointing to an abusive relationship. Ms. Bauer testified credibly about the volatile nature of the relationship, and her testimony that she suffered abuse at Respondent’s hands is credited.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.
This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s
certification as a law enforcement officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t
of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As stated by the Supreme Court of Florida,
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 lacking in confusion as to the facts in issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Administrative Complaint contains the following factual allegations:
2. (a) On or about January 24, 2011, the Respondent, Brian Hart, did unlawfully commit a battery upon Sabrina Parker, by actually touching or striking her or intentionally causing bodily harm to Sabrina Parker against her will.
(b) On or between March 1, 2010 and January 31, 2011, the Respondent, Brian Hart, did unlawfully commit a battery upon Lauren Bauer, a family household member or a person with whom he is in a dating relationship, by actually touching or striking Lauren Bauer or intentionally causing bodily harm to Lauren Bauer against her will.
Based upon these factual allegations, the Administrative Complaint alleges that “the Respondent did violate the provisions of Section 784.03; 784.03 or any lesser included offenses, Section 943.1395(7), Florida Statutes, and Rule 11B- 27.0011(4)(b); (b), [sic] Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), which require that a Law Enforcement Officer in the State of Florida have good moral character.”
Section 784.03 provides:
(1)(a) The offense of battery occurs when a person:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to another person.
(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.
Subsections 943.1395(7) and (8) provide:
(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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
(8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.
The Commission has defined “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:
(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) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections . . . 784.03, . . . F.S.
Any principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been committed or completed would have been a felony offense; or
The perpetration of an act in any jurisdiction other than the State of Florida, which if committed in the State of Florida would constitute any offense listed in this rule section.
Respondent can be disciplined only for matters actually alleged in the charging document. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t of
Prof. Reg., 563 So. 2d 805 (Fla. 1st DCA 1990). Thus, the inquiry is limited to those factual matters actually alleged in the Administrative Complaint.
With respect to paragraph 2(a) of the Administrative Complaint, Respondent is charged with committing a battery upon Sabrina Parker. However, neither Ms. Parker nor any other person with personal knowledge of the incident in January 2011 testified in this proceeding.2/ Officer Wilder, who investigated the incident, did not witness it.
Moreover, “the law is well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendere, is not admissible in a subsequent proceeding as proof of the facts on which it is based.” Williams
v. Castor, 613 So. 2d 97, 99 (Fla. 1st DCA 1993)(citations omitted). While the judgment and sentence would have been evidence to support a charge that Respondent was convicted of a battery, the Commission did not charge Respondent with having been convicted of or pleading guilty or nolo contendere to the charge of battery. It charged him with committing the battery. Without some evidence of the crime, as opposed to the judgment and sentence for the crime, Respondent cannot be disciplined for the allegations contained in paragraph 2(a) of the Administrative Complaint.
The same cannot be said for the allegations in paragraph 2(b), however. Clear and convincing evidence was presented to demonstrate that Respondent committed domestic battery with respect to Lauren Bauer. Ms. Bauer testified
credibly regarding the abusive nature of their relationship. Based on the evidence presented, Respondent failed to maintain good moral character in violation of section 943.1395(7), as defined by rule 11B-27.0011(4)(b)3.
The Commission has adopted Disciplinary Guidelines for the imposition of penalties to be imposed for failing to maintain good moral character in violation of section 943.1395(7). Fla. Admin. Code R. 11B-27.005. For the commission of a battery, the guideline penalty is suspension. Paragraph (6) of the rule also provides for aggravating and mitigating factors to be considered when recommending and imposing penalties, including consideration of whether official authority was used to facilitate the misconduct; whether it was committed during the performance of official duties; the number of violations found; the officer’s prior disciplinary history; the severity of the misconduct; the danger to the public; the actual damage caused; and whether the behavior constituted “domestic violence” as defined by section 741.28(2), Florida Statutes.
Section 741.28(2) defines domestic violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” “Family or household
member” is defined in section 741.28(3) as “spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family . . . . [T]he family or household members must be currently residing or have in the past resided together in the same dwelling unit.”
The issue then becomes whether Ms. Bauer is considered as having resided in the same dwelling unit when she maintained her own apartment yet stayed most nights at Mr. Hart’s residence. Staying in one place at night while maintaining a separate residence is not residing in the same dwelling unit. Therefore, the aggravating circumstance of committing domestic violence has
not been considered.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding that Respondent failed to maintain good moral character as defined by rule 11B- 27.0011(4)(b)3., in violation of section 943.1395(7). It is further recommended that Respondent’s certification be suspended for a period of one year, followed by probation for one year. It is also recommended that as a condition of probation, the Commission consider requiring courses and/or counseling to address anger management and substance abuse.
DONE AND ENTERED this 1st day of March, 2013, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2013.
1/ While Respondent did not object to the exhibit at hearing, and it was admitted, an examination of the document reveals that it is incomplete. There are two captions on the document, the first being “Plea and Acknowledgment or Rights,” and the second being “Order of Judgment and Sentence.” After the second caption, it states “(Page 1 of 2).” However, only the first page was included as Petitioner’s Exhibit 1.
2/ Ms. Parker and the individual identified as a witness,
Mr. Nahoom, were both listed on Petitioner’s witness list, but were not called to testify.
Linton B. Eason, Esquire
Brian T. Hart (Address of record)
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
