Judges: DONALD D. CONN
Agency: Department of Law Enforcement
Latest Update: Sep. 06, 1990
Summary: Law enforcement officer's tampering with, and unauthorized entry into, police department property locker shows lack of moral character. License revoked.
85-0125.PDF
STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0125
)
DAVID L. TILLMAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came to be considered on May 7, 1985, in Daytona Beach, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. David L. Tillman, Respondent, did not appear at the hearing, although notice had been sent to his last known address. The Petitioner, Criminal Justice Standards and Training Commission, was represented by Joseph White, Assistant General Counsel, Department of Law Enforcement, Post Office Box 1489, Tallahassee, Florida 32302.
Petitioner filed an Administrative Complaint charging Respondent with entering the property locker of the Ormond Beach Police Department and tampering with a sealed envelope bag marked "$1500 plus," without authorization.
At the hearing, Petitioner called four witnesses and introduced two exhibits. There was no transcript of the hearing.
FINDINGS OF FACT
Respondent was certified by the Criminal Justice Standards and Training Commission in 1971 and was issued Certificate Number 2896.
As a result of incidents in July and September, 1983 when $125 and $108, respectively, was found missing
from the property locker of the Ormond Beach Police Department, Lt. James Bushdid, Ormond Beach Public Safety Officer, placed an envelope bag in the property locker marked "$1500 plus" on November 5, 1983. This evidence bag contained only plain paper cut in the size of dollar bills and was placed in the locker as a trap. The only other person who knew about the trap was Officer Donald McCague who was the custodian of the property locker at the time.
At all times relevant hereto, Respondent was employed by the Ormond Beach Police Department as the midnight shift Complaint Officer working midnight to 7:00 a.m. and had access to, but was not authorized to enter, the property locker.
On November 11, 1983, Officer McCague noticed that the trap envelope bag had been moved in the locker. It was clear that the envelope had been opened at the bottom in the same manner as the envelope in September 1983 which was missing $108. The trap envelope was processed for latent prints and was sent to the Department of Law Enforcement crime lab for analysis. The finger prints on the trap envelope bag were identified on or about December 20, 1983, by Jenny Kuehn, Senior Crime Analyst who was accepted as an expert in finger print analysis, as Respondent's prints.
Lt. Bushdid interviewed Respondent on January 6, 1984. After having been advised of his Miranda rights and having waived his rights, Respondent admitted he had entered the property locker on November 11 and opened the trap envelope. Respondent gave no credible explanation for opening the envelope or entering the property locker without authorization. Respondent had also not filed a report concerning this incident as is required whenever there is an inadvertent tampering with evidence, and had not logged his entry into the property room.
Respondent was suspended from the Ormond Beach Police Department due to this incident and has not been employed by the police department since January, 1984.
On or about December 6, 1983, a second trap envelope was placed in the property locker which remained in the locker until February 2, 1984 when it was removed by Lt. Bushdid. During this time, the second envelope was not moved or tampered with in any way.
Proposed findings of fact and conclusions of law submitted pursuant to Section 120.57(1)(b)4, F.S., have been considered. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate cumulative, immaterial, or unnecessary.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), F.S. The Criminal Justice Standards and Training Commission has the authority to certify, or revoke the certification, of law enforcement officers. Section 943.12(3), F.S., 1984 Supplement.
9. Section 943.1395(5)(s), F.S., 1984 Supplement, states:
The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10). . . .
See also similar Section 943.145(3)(a), F.S., 1983. Section 943.13(7), F.S., requires that any person employed or appointed as a law enforcement officer "have a good moral character". Therefore, the Commission has the authority to revoke the certification of any person found to lack good moral character.
In a license revocation proceeding, the duty breached by the licensee must appear clearly or have a "substantial basis" in the evidence. Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981). This is because license revocation actions are essentially penal in nature." State ex rel. Vining v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979; reh.den. 1980).
The evidence does clearly establish that while on duty Respondent entered the property locker of the Ormond Beach Police Department without authorization on November 11, 1983, failed to log his entry, tampered with a trap envelope bag by opening it from the bottom, replaced the envelope, and then failed to report this tampering with
this envelope. Two thefts from the property a result of unauthorized and unreported entry into the property locker. This was during a period of time when Respondent was on the midnight shift and had access to the property locker but was not authorized to enter. Respondent admitted to Lt.
Bushdid that he tampered with the trap envelope on November 11, 1983, after entering the locker without authorization and that he failed to report the incident. The finger print evidence in the record confirms that Respondent tampered with the trap envelope. The trap envelope had been opened by peeling back the bottom flap in the same manner as the envelope found to be missing $108 in September 1983.
Petitioner has met its burden of proof and has established by clear and uncontroverted evidence that Respondent lacks the moral character required of law enforcement officers in this state, and is therefore subject to license disciplinary action under Section 943.1395(5).
RECOMMENDATION
Based upon the foregoing, it is recommended that Petitioner enter a Final Order revoking Certificate Number 2896 previously issued to David L. Tillman.
DONE and ENTERED this 24th day of May, 1985, at Tallahassee, Florida.
DONALD D. CONN
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 24th day of May, 1985.
COPIES FURNISHED:
Joseph White, Esquire Department of Law
Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
David L. Tillman 608 Van Ness Street
Daytona Beach, Florida 32014
Daryl G. McLaughlin, Director Criminal Justice Standards
and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Robert R. Dempsey Executive Director Department of Law
Enforcement
Post Office Box 1489
Tallahassee, Florida 32302
Docket for Case No: 85-000125
Orders for Case No: 85-000125
| Issue Date |
Document |
Summary |
|
Oct. 07, 1985 |
Agency Final Order
|
|
|
May 24, 1985 |
Recommended Order
|
Law enforcement officer's tampering with, and unauthorized entry into, police department property locker shows lack of moral character. License revoked.
|
