STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLICE STANDARDS AND TRAINING ) COMMISSION, )

)

Petitioner, )

)

) CASE NO. 81-306

)

STEPHEN DARRYL HAND, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Melbourne, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on May 1, 1981. The Division of Administrative Hearings received the hearing transcript on May 20, 1981. At the final hearing, respondent appeared on his own behalf. Petitioner was represented by counsel:

APPEARANCES

For Petitioner: James M. Corrigan, Esquire

The Capitol, Suite 1601 Tallahassee, Florida 32301

For Respondent: Stephen Darryl Hand, Pro Se

105 Elm Avenue

Satellite Beach, Florida 32937

By amended administrative complaint dated March 25, 1981, petitioner alleged that respondent "engaged in activity on or between November 30, 1979 and December 20, 1979, which resulted in being charged with the crime of grand theft (second degree) a third degree felony in that [he] did then and there knowingly obtain or use, or endeavor to obtain or use, the sum of $1,500 . . . which was the property of the City of Indian Harbour Beach, Florida, as custodian, with the intent to deprive said owner of a right to said property, and to appropriate said property to the use of himself contrary to Sections 812.014(1)(a)(b) and 817.014, Florida Statutes (1979)." The amended administrative complaint alleges that respondent pleaded guilty to this charge on March 6, 1980; that respondent was placed on two years' probation on May 20, 1980; that adjudication of guilt was withheld; that respondent has been guilty of "gross misconduct and demonstrate[d] a lack of good moral character . . . [which] disqualifies [him] from being a police officer under the terms of 943.7 [sic], Florida Statutes"; and that respondent "is guilty of violating section 943.14, F.S., and chapter 11B-16, F.A.C."

FINDINGS OF FACT

1. Born September 3, 1956, Stephen Darryl Hand holds police certificate No. 02-18775. Respondent Hand was employed as a police officer by the Indian Harbour Beach Police Department from July 3, 1977, to December 21, 1979. On December 22, 1979, he began working for the Melbourne Police Department, which he left in February of 1980, at the Police Chief's behest.

   
   

2. In the fall of 1978, respondent was entrusted with the keys to the evidence locker at the Indian Harbour Beach Police Department. After Officer Martin came into possession of $14,990 in cash, it was stored in the evidence locker. Although seized in suspicious circumstances, the money was labeled as abandoned property, and not as evidence. Two weeks or so before he left Indian Harbour Beach Police Department, respondent stole fifteen hundred dollars ($1,500) from the cash in the evidence locker. This was the first time that he had been custodian of a large amount of cash.

   
   

3. During respondent's final week with the Indian Harbour Beach Police Department, he and his replacement were directed to count the money again. Respondent then reported a shortage of $1,500 to Lt. Ferguson, without revealing that he had taken the money himself. He had used it for various personal purposes, including $250 he paid for the benefit of his sister.

   
   

4. Lt. Ferguson reported the missing money to Chief Fernez who encouraged all personnel to take polygraph tests. Many resented this suggestion and morale problems arose. The theft made the local papers. When respondent, who was by that time employed by the Melbourne Police Deportment, was originally scheduled for a polygraph examination, he feigned illness and declined to take it. After Chief Fernez contacted Chief Miller of the Melbourne Police Department, however, he submitted to a polygraph examination, during which he denied knowing what had happened to the $1,500 he had recently spent.

   
   

5. Some time later, respondent told Sergeant Keller of the Indian Harbour Beach Police Department that he had found the missing money among some papers at home. Respondent made full restitution before criminal charges were filed. On March 6, 1980, he pleaded guilty to grand theft, second degree and, on May 20, 1980, was placed on two years' probation, adjudication of guilt being withheld.

   
   

6. Sixteen law enforcement officers testified on behalf of respondent to the effect that respondent was a good police officer who should be given a second chance even though he was guilty of an offense none of them could condone. Similarly, petitioner's witnesses commended respondent's conduct as a police officer, apart from the theft of a large sum of cash from the evidence locker, and the lying afterwards.

   
   

7. To the extent that proposed findings of fact in petitioner's proposed recommended order have not been adopted in substance, they have been rejected as not established by the preponderance of the evidence or deemed irrelevant, after careful consideration.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner purports to proceed "under the terms of 943.7, Florida Statutes," invokes "Section 943.13 (F.S.)" and alleges that respondent "is guilty of violating section 943.14, F.S., and chapter 11B-16, F.A.C." There is no "943.7, Florida Statutes." Neither Section 943.14, Florida Statutes (1979), nor Section 943.14, Florida Statutes (1980 Supp.), has anything to do with the

   present case. In its original administrative complaint, petitioner pleaded Section 943.145; and apparently Section 943.145, Florida Statutes (1980 Supp.), is the intended reference in the amended administrative complaint. This is the assumption respondent makes in one of his motions to dismiss the amended administrative complaint.

   
   

9. In petitioner's proposed recommended order, petitioner contends that "the issue presented is does Mr. Hand, by his actions have the good moral [character] as determined by investigation under procedures established by [petitioner] to be licensed as a Police Officer in the State of Florida."

   
   

10. At the time of the theft, the law provided that a "person employed as a police officer shall: (7) Have a good moral character as determined by investigation under procedures established by the [petitioner]." Section 943.13(7), Florida Statutes (1979). In about identical language, current law provides that a "person employed or appointed as a law enforcement officer shall: (7) Have a good moral character as determined by investigation procedures established by the [petitioner]." Section 943.13(7), Florida Statutes (1980 Supp.).

    
    

11. Petitioner is authorized to suspend or revoke certification for "[f]ailure of the certificate holder to maintain qualifications established in

    s. 943.13." Section 943.145(3)(a), Florida Statutes (1980 Supp.). Although this statutory grant of authority became effective after respondent had stolen the money, the statute merely served to codify preexisting law. See State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979)("power to issue a certificate . . . necessarily and by fair implication includes the authority to specify the conditions under which such certificates shall be held and revoked." At 116.).

    
    

12. Proof at the hearing that respondent took part of the first large sum of money he had charge of as evidence custodian, then repeatedly denied it, even when everybody he had worked with at the Indian Harbour Beach Police Department came under a cloud of public suspicion, adequately established that respondent lacks "good moral character", within the meaning of Section 943.13(7), Florida Statutes (1979 and 1980 Supp.).

    
    

13. Respondent contends that Rule 11B-16.03, Florida Administrative Cede, which requires that employing agencies report possible grounds for disciplinary action against certificated police officers, operates to preclude petitioner's taking action against former police officers who are not employed by a police agency at the time petitioner files charges. The cited rule does not support this interpretation, however.

    
    

14. Respondent's various motions to dismiss the amended administrative complaint are hereby denied.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke the certificate it issued to respondent, No. 02- 18775.

DONE AND ENTERED this 18th day of June, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of June, 1981.

COPIES FURNISHED:

James M. Corrigan, Esquire The Capitol, Suite 1601 Tallahassee, Florida 32301

Stephen Darryl Hand

105 Elm Avenue

Satellite Beach, Florida 32937

Docket for Case No: 81-000306

Orders for Case No: 81-000306