STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3042

)

WILLIAM B. BARKER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a hearing in the above- styled case on 21 December 1982 at DeFuniak Springs, Florida.

APPEARANCES

For Petitioner: Susan Tully, Esquire

Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

For Respondent: Charles Nackley, Jr., Esquire

800 Buckhead Centre

2970 Peachtree Road, Northwest Atlanta, Georgia 30305

By Administrative Complaint filed 21 May 1982, the Florida Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke or suspend the law enforcement certification of William B. Barker, Jr., Respondent. As grounds therefor it is alleged that the Respondent, on 20 June 1981, while in uniform and in a marked patrol car, on Interstate Highway 10, in Walton County, Florida, improperly held the leg and kissed the foot of a female motorist. These acts are alleged to constitute gross insubordination, gross immorality, gross misconduct, and incompetence, and indicate the Respondent failed to maintain good moral character, which seriously reduces his effectiveness to function as a law enforcement officer.

At the hearing, Petitioner called one witness, and Respondent called two, including himself. One exhibit was received in evidence.

FINDINGS OF FACT

1. William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida.

2. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife.

   
   

3. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her.

   
   

4. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times.

   
   

5. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble.

   
   

6. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses.

   
   

7. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the

   allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

9. Section 943.145, Florida Statutes, establishes grounds for revocation or suspension of certification of law enforcement officers, which include:

   
   

   (c) The commission of conduct by the certificate holder constituting gross immorality . . . willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certificate holder's effectiveness to function as a law enforce- ment officer or a correctional officer.

   
   

10. The acts which Respondent is alleged to have committed, if true, would not constitute gross insubordination, gross immorality, or incompetence, but would constitute gross misconduct which would seriously reduce his effectiveness as a law enforcement officer.

    
    

11. The identification of the Respondent by Ms. Preston, the complaining witness, is flatly contradicted by Mr. Barker, who states he had never seen the witness before she walked into the hearing room. He frankly admits that the series of events Ms. Preston recounts may well have happened, but unequivocally states that the individual involved is not him, and further, that he has never admitted to anyone that it was.

    
    

12. Counsel for the Petitioner attempted to introduce into evidence a letter, purportedly from the Sheriff of Walton County to the Probable Cause Panel which heard this case, which supposedly contained a report of an admission against interests by the Respondent. This letter constitutes the grossest form of hearsay evidence, the admission of which, under the circumstances of this case, 1/ would fly in the face of the spirit and intent of Section 120.58(1)(a), Florida Statutes. While hearsay evidence may be admitted under that authority, it is admissible to supplement or explain other competent, substantial evidence. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (1 DCA Fla. 1978)

    
    

13. In an administrative hearing convened under the provisions of Section 120.57(1), Florida Statutes, the burden of proof is on the party asserting the affirmative; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). It is incumbent upon the Petitioner here to establish by legal and competent evidence that the Respondent committed the acts alleged and that those acts constitute gross immorality, incompetence, or gross misconduct. While this burden does not require proof beyond a reasonable doubt, it is, nonetheless, not satisfied by proof which creates an equipoise; Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (4 DCA Fla. 1974).

    
    

14. Further, this state has consistently recognized the importance of ensuring that before an individual is deprived of his or her opportunity to earn

    a livelihood in the manner for which he or she was trained, the evidence of wrongdoing on which the deprivation action is based must be substantial. As the First District Court of Appeal has stated:

    
    

    In a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term "substantial competent evidence" takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 20. [Bowling v. Department of Insurance, 394 So.2d 165 (1 DCA Fla. 1981)

    
    

15. Although Ms. Preston undoubtedly was subjected to a frightening, demeaning, and unpleasant experience at the hands of someone, the evidence presented at this hearing does not establish, sufficiently, that Mr. Barker is the responsible individual.

    
    

16. The State produced no evidence to show that Mr. Barker was on duty at the time in question, nor that his post was in the area where this incident took place. In fact, Mr. Barker testified he got off duty before the incident took place. The State produced no admissible evidence of any incriminating statements by the Respondent. While Ms. Preston identified the Respondent and described her assailant as a heavyset man wearing tinted glasses and a mustache, that description would probably fit a substantial number of the law enforcement officers of this state. Even in its best light, the State's case is circumstantial, and in light of the Respondent's strong denial of his implication, what results is a perfect example of an equipoisal situation. That simply does not satisfy the burden of proof which the law imposes.

RECOMMENDATION

From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is

RECOMMENDED:

That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint.

ENTERED this 24th day of January, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.

ENDNOTE

1/ Attorney for the State indicated that the author of the letter in question was still the incumbent sheriff whose office was in the building in which this hearing was being held, but that she did not intend to call him. She offered no reason for his failure to appear, nor did she in any way indicate he was not available to testify.

COPIES FURNISHED:

Susan Tully, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

M. Charles Nackley, Jr., Esquire 800 Buckhead Centre

2970 Peachtree Road, N.W. Atlanta, Georgia 30305

Mr. G. Patrick Gallagher, Director Division of Standards and Training Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Mr. Robert R. Dempsey Executive Director

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

Docket for Case No: 82-003042

Orders for Case No: 82-003042