Judges: LINDA M. RIGOT
Agency: Department of Law Enforcement
Latest Update: May 09, 1983
Summary: Subsequently-enacted requirements for certification do not apply to already-certified police officer and executive pardon binding on commission.
81-3053STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3053
)
RONALD LEE DUNN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 22, 1982, in Miami, Florida. Thereafter, this Hearing Officer ascertained that the record in this cause was incomplete as to a necessary fact and that the parties had not argued a potentially dispositive statutory provision. Accordingly, additional time was afforded, and the parties entered into a Post Hearing Stipulation of Fact and submitted memoranda regarding the applicability of that statute.
Petitioner was represented by Percy W. Mallison, Jr., Esquire, Tallahassee, Florida, and Terrence J. McWilliams, Esquire, Miami, Florida, appeared on behalf of the Respondent.
By Administrative Complaint, Petitioner seeks to suspend or revoke Respondent's certificate as a law enforcement officer. Respondent timely requested a formal hearing on the allegations contained in that Administrative Complaint. Therefore, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Charles
Renegar and Respondent testified on the Respondent's behalf. Additionally, Respondent's Exhibits numbered 1 through 3 were admitted in evidence.
Both parties have submitted posthearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
Petitioner's posthearing Motion to Amend the Administrative Complaint by deleting the charges contained in Paragraphs 2 and 3 and by conforming the remaining language to reflect the deletions be and the same is hereby granted.
FINDINGS OF FACT
In 1971, Respondent became a state trooper with the Tennessee Highway Patrol. The other troopers introduced him to Mrs. Gary and advised him to use Gary's Garage for towing and wrecker service when he was working in that area, as they did, because Mrs. Gary gave the troopers gifts and allowed them to use her garage for work on their personal automobiles and provided them with free parts.
Respondent became friendly with Mrs. Gary, and she began giving him clothing and food, as she did the other troopers, to show her gratitude for their calling her tow truck concern to haul away cars involved in accidents in her area.
Mrs. Gary was not obligated to pay Respondent for referring cars to Gary's Garage, nor was Respondent obligated to refer cars to that garage.
About the time that Respondent refused to support a political candidate endorsed by Mrs. Gary and also became involved with a new girlfriend, Mrs. Gary told Respondent to stop by her garage to pick up his Christmas present. She told him that if she were not there when he came by, his present would be in the top drawer of her desk.
Respondent went to Gary's Garage to pick up his present while he was on duty. Mrs. Gary was not there, and Respondent looked in the top drawer of Mrs. Gary's desk. He found an envelope with his name on it. He took the envelope and left. He later opened the envelope and removed the three $20 bills he found in it. His hands turned green from the ink on the bills. He panicked and threw the money out the car window. Respondent received a call from the Captain telling him to return to the station. When he arrived there, the Captain asked him if he took money from Gary's Garage. When he admitted he did pick up his Christmas present, he was arrested.
Based upon Mrs. Gary's allegations, Respondent was indicted on January 26, 1972, and charged with larceny and concealing stolen property in the amount of $577.
Based upon the advice of his attorneys, Respondent pleaded guilty to petty larceny, a misdemeanor. On June 2, 1972, he was sentenced to a term of 11 months and 29 days, which sentence was suspended, and Respondent was placed on five years probation.
With the permission of his parole officer, Respondent left Tennessee and moved to Florida.
Respondent was hired by the Homestead Police Department in June or July, 1973. He attended and completed training at the police academy.
On September 28, 1973, he was issued his certification as a Law Enforcement Officer by the State of Florida.
Respondent worked as a Law Enforcement Officer with the Homestead Police Department for six and one-half years without receiving even a reprimand. While employed there, he completed his term of probation.
In October, 1979, Respondent married a lady who was formerly married to the vice-mayor's nephew. After six weeks, she left Respondent for her exhusband. Her parents involved themselves in the marital problems and pressured the Homestead Police Department to investigate Respondent. The Chief agreed to suspend Respondent with pay while an investigation was conducted, but Respondent resigned on January 3, 1980, rather than be subjected to such politics.
Charles T. Renegar has been in law enforcement for 36 years and is the Chief of Police of the Hialeah Gardens Police Department. Respondent was recommended to him by one of Respondent's former superiors at the Homestead Police Department.
Respondent was employed as a Law Enforcement Officer by the Hialeah Gardens Police Department on September 22, 1980. He took the sergeant's examination on December 2, received the highest grade on the examination and was promoted to sergeant on December 17, 1980. In June, 1981, Respondent received the third highest grade on the lieutenant's examination.
Respondent's certification became automatically inactivated while he was between employment by the Homestead Police Department and the Hialeah Gardens Police Department. His request for activation of his certification after he joined the Hialeah Gardens Police Department has been held in abeyance pending the outcome of this proceeding.
Although Chief Renegar ran the police academy as its nighttime coordinator for 14 years, he never met a more sincere and dedicated police officer than Respondent. During the short time Respondent was working for the Hialeah Gardens Police Department, he received the Optimist Club Award as officer of the quarter. He is highly regarded in the Hialeah community. Renegar has held Respondent's sergeant's position open for him and considers Respondent in line for a lieutenant's position.
Renegar flew with Respondent at his own expense to a full evidentiary hearing before the Tennessee Clemency Board. On February 19, 1982, Respondent was pardoned by the Governor of the State of Tennessee of his misdemeanor conviction of petty larceny.
Respondent's guilty plea to the misdemeanor of petty larceny is the only obstacle to active recertification of Respondent's Certificate of Compliance #02-8832 by the Petitioner.
The undisputed facts of the matter which resulted in Respondent's guilty plea to petty larceny involved accepting gratuities and did not involve theft, embezzlement or larceny.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
The Administrative Complaint herein charges the Respondent with accepting illegal kickbacks from truck drivers and other motorists whom he
stopped for traffic citations during the course of his duties as a State Trooper in Tennessee, an allegation for which no evidence was introduced in this cause, and with being convicted of a crime involving moral turpitude, in violation of Section 943.13(4), Florida Statutes, and therefore Section 943.145(3)(a), Florida Statutes.
Section 943.13, Florida Statutes (1981), sets forth the qualifications for employment as a law enforcement officer and provides that:
After August 1, 1974, any person employed or appointed as a law enforcement officer shall:
(4) Not have been convicted of a felony or of a misdemeanor involving "moral tur- pitude" as the term is defined by law
For the purposes of this section
and s. 943.145, any person, who, after July 1, 1981, pleads guilty or nolo con- tendere to or is found guilty of a felony or of a misdemeanor involving moral tur-
pitude shall not be eligible. for employment as a law enforcement officer, notwithstand- ing suspension of sentence or withholding
of adjudication.
Section 943.145(3)(a), Florida Statutes (1981), provides as follows:
(3) Grounds for revocation or suspension of certification shall consist of:
(a) Failure of the certificate holder
to maintain qualifications established in s. 943.13 . .
Neither statutory nor case law in the State of Florida defines petty larceny as a misdemeanor involving moral turpitude. Therefore, Petitioner's reliance on Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982), is misplaced, since Cirnigliaro had been convicted of embezzlement, a crime defined as one involving moral turpitude. Rather, this cause is controlled by the holding in Pfeiffer v. Police Standards and Training Commission, 360 So.2d 1326 (Fla. 1st DCA 1978), wherein the Court held that simply pleading guilty does not result in the conclusion that the accused was convicted of a crime involving moral turpitude. The Pfeiffer Court requires an examination of the factual circumstances surrounding the conviction in order to determine if moral turpitude be involved.
Although Respondent pleaded guilty to petty larceny, a misdemeanor, the uncontroverted facts show that Respondent committed no larceny or theft.
The crime committed by Respondent herein is the acceptance of gifts or compensation from Mrs. Gary who received business from Respondent and his fellow troopers. While Respondent's conduct cannot be condoned, Respondent did not believe he was committing, nor did he intend to commit, an act involving moral turpitude. Instead, he engaged in what appears to have been accepted practice by state troopers in Tennessee in 1971. Under the facts of this case, Respondent has not been convicted of a misdemeanor involving moral turpitude.
Even if it could be argued that moral turpitude surrounded Respondent's acceptance of gifts from Mrs. Gary, Respondent has received a pardon from the Governor of the State of Tennessee after a full evidentiary hearing by the Tennessee Clemency Board. Accordingly, Respondent's slate has been wiped clean by the executive branch of the State of Tennessee, and the effects of an executive pardon cannot be ignored by Petitioner.
A study of Chapter 943, Florida Statutes, and its predecessor, Chapter 23, Florida Statutes (1971), indicates an evolution of continually higher standards for law enforcement officers in the State of Florida. Many of Florida's law enforcement officers were so engaged prior to the establishment of minimum standards in 1967. Clearly, the legislature did not intend to "retire" long-term outstanding police officers who might not meet new minimum requirements being established for the first time for the law enforcement profession. Section 943.13, Florida Statutes, specifically provides that it applies only to persons employed after August 1, 1974, as to the minimum qualifications it establishes. Further, only after July 1, 1981, does it become irrelevant whether sentence was suspended, as it was for Respondent.
Petitioner advances the narrow argument that Section 943.13's minimum qualifications for employment and Section 943.145's mandate that minimum qualifications be maintained operate independently from certification for employment. That argument ignores the fact that certification is for employment and further ignores the "grandfather" provision found in Section 943.19, Florida Statutes (1981) , which reads, in pertinent part, as follows:
All law enforcement officers certified
by the commission on August 1, 1974, shall not be required to meet the provisions of ss. 943.12(1) and 943.13 as a condition of continued employment, nor shall their fail- ure to fulfill such requirements make them ineligible for any promotional examination for which they are otherwise eligible.
On September 28, 1973, Respondent was certified as a law enforcement officer in the State of Florida and is, accordingly, "grandfathered in".
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT:
A final order be entered dismissing the Administrative Complaint against Respondent Ronald Lee Dunn and activating his Certificate Number 02-8832 as a Law Enforcement Officer in the State of Florida.
DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, 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 November, 1982.
COPIES FURNISHED:
Percy W. Mallison, Jr., Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301
Terrence J. McWilliams, Esquire 1999 SW 27th Avenue
Miami, Florida 33145
G. Patrick Gallagher, Director Criminal Justice standards and
Training Commission
408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
Petitioner,
vs. CASE NO. 81-3053
RONALD LEE DUNN,
Respondent.
/
FINAL ORDER
This matter came for final action by the Criminal Justice Standards and Training Commission pursuant to Section 120.57(1)(b)9, F.S., at a public meeting on February 24, 1983, in Tallahassee, Florida, for consideration of the recommended order of the hearing officer entered herein and the exception filed by the Petitioner, Criminal Justice Standards and Training Commission. A transcript of the proceedings is available if necessary.
FINDINGS OF FACT
Following a review of the complete record, the Criminal Justice Standards and Training Commission adopts and incorporates by reference the Findings of Fact of the hearing officer.
CONCLUSIONS OF LAW
Following a review of the complete record, the Criminal Justice Standards and Training Commission hereby reject the hearing officer's conclusion of law in Paragraph six (6) of the Conclusions of Law of the Recommended Order that Respondent's pardon wipes Respondent's slate clean.
The Criminal Justice Standards and Training Commission hereby accepts the Petitioner's Exceptions to the conclusion of law in Paragraph five (5) of the Petitioner's Exceptions to Recommended Order only with regard to the fact that a pardon does not remove the fact of the original conviction.
The Criminal Justice Standards and Training Commission does, however, adopt the remainder of the hearing officer's conclusions of law and incorporates them herein by reference.
The Criminal Justice Standards and Training Commission hereby adopts the Recommendation of the hearing officer and Petitioner's exceptions to the Recommendation contained in the last sentence of the Petitioner's Exceptions to the Recommended Order is rejected. Accordingly, based upon a review of the complete record by the Commission, the Findings of Fact and the Modified Conclusions of Law, IT IS THEREFORE
ORDERED AND ADJUDGED that the complaint filed against the law enforcement officer certification in the State of Florida of Ronald Lee Dunn be and the same is hereby dismissed, and that his law enforcement officer certification be and the same is hereby reactivated.
This Order shall take effect on the date of filing. DONE AND ORDERED this 30th date of March, 1983.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
DON MORELAND, Sheriff Chairman
cc: All Counsel of Record Ronald Lee Dunn
Docket for Case No: 81-003053
Orders for Case No: 81-003053
| Issue Date |
Document |
Summary |
|
Mar. 30, 1983 |
Agency Final Order
|
|
|
Nov. 19, 1982 |
Recommended Order
|
Subsequently-enacted requirements for certification do not apply to already-certified police officer and executive pardon binding on commission.
|
