STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, DEPARTMENT ) OF LAW ENFORCEMENT, )

)

Petitioner, )

) CASE NO. 85-0128

vs. )

)

ALVIN E. HARGROVE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on May 31, 1985, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301

For Respondent: Alvin E. Hargrove, pro se

3013 East Sligh Avenue Tampa, Florida 33610

By Administrative Complaint dated November 30, 1984, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke the certificate of Alvin E. Hargrove, Respondent as a corrections officer. As grounds therefor it is alleged that Respondent was arrested for disorderly intoxication, resisting arrest with violence, and striking a fellow officer in the throat with his elbow, thereby violating the provisions of Section 943.1395(5), Florida Statutes, in failing to maintain qualifications established in Section 943.13(7), Florida Statutes.

At the hearing Petitioner called five witnesses and Respondent testified in his own behalf. Proposed findings were not submitted by either party.

FINDINGS OF FACT

1. Respondent was certified as a corrections officer in 1972 and was so certified at all times here relevant.

   
   

2. Respondent was a season ticket holder to the Tampa Bay Buccaneers 1983 football games. He attended the game on September 25, 1983, with four friends. Before arriving at the game the group bought a fifth of whiskey.

   Respondent contends he had only one drink prior to the incident with the police officers but three police officers opined that Respondent was intoxicated.

   
   

3. During the second half of the game, with the Bucs woefully behind and some spectators leaving the stadium, Respondent was yelling disparaging remarks about the Bucs and their performance on that day. Occasionally, Respondent was standing on his seat when he yelled the remarks. Respondent was more noisy than others in the section in which his seat was located and drew the attention of Jennifer Frye, a City of Tampa police officer serving as a uniformed off-duty policewoman paid the owners of the stadium to maintain crowd control.

   
   

4. Officer Frye motioned for Respondent to come to the platform where she was standing, some four rows above Respondent's seat. Respondent did so, climbing between the people and seats behind him as he responded to Frye's summons. When Respondent reached Frye's position, she smelled alcohol on his breath and he appeared to her to be intoxicated. Respondent was somewhat annoyed in being called up by the policewoman and wanted to know why she had beckoned him from his seat. He was gesturing with his arms and asking what he had done wrong.

   
   

5. Officer Lois Morraro, another off-duty member of the Tampa police force, was also working in uniform at the stadium. She observed Respondent respond to Frye's request and saw Respondent arguing. Morraro approached the two and positioned herself behind Respondent.

   
   

6. Respondent told Frye he was a season ticket holder and was entitled to be upset when the Bucs were losing. Frye and Morraro decided to evict Respondent from the stadium and when Frye initially grabbed his hand Respondent pulled away. She then told him he was under arrest and grabbed his left arm and hand with a come-along grip.

   Morraro grabbed Respondent's right arm, twisted it behind his back, and moved the hand up toward the shoulders. They proceeded to propel the struggling Respondent down the steps to a holding area. When they reached the holding area they were joined by Sergeant Peter Ambraz, the off- duty Tampa police officer in charge of the stadium detail. Ambraz took Respondent's right arm while Morraro handcuffed Respondent. During this time Respondent was trying to keep from being handcuffed and in the process his elbow accidentally hit Morraro in the throat while she was standing behind him putting handcuffs on him.

   
   

7. After Respondent had been handcuffed and taken to the police station, he revealed that he was a certified corrections officer. Respondent was subsequently tried for disorderly intoxication and fired from his job with the Hillsborough County Sheriff's Department.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. In administrative proceedings the burden is on the Petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services,

   348 So.2d 349 (Fla. 1st DCA 1977). The quality of evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was enacted. Many of these cases involve license revocations which are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d

   487 (Fla. 1983); Reid v. Florida Real Estate Commission,

   188 So.2d 846 (Fla. 2d DCA 1966). The standard of proof in these cases has vacillated between a preponderance of the evidence standard and a clear and convincing evidence standard. While not adopting the clear and convincing standard, the court in Balino v. Department of Insurance,

   394 So.2d 165 (Fla. 1st DCA 1984) held the "critical matter in issue must be shown by evidence which is indubitably as 'substantial' as the consequences."

   
   

9. The revocation of certification sought by Petitioner in this cause places this case in the same evidential posture as Bowling.

10. Respondent is here charged with violation of Section 693.1395(5) and 893.13(7), Florida Statutes. The former, which provides in part:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10). . . .

    
    

11. Section 943.13 establishes minimum qualifications for employment or appointment as a certified officer which include age, citizenship, educational requirements, fingerprinting, physical examination, no conviction of felony or misdemeanor involving purgery, basic training, passing an examination, and

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

12. Assuming, without deciding, that Respondent was intoxicated at the football game on September 25, 1983, and resisted being evicted from the stadium and arrested for making excessive noise as a spectator at a football game, this does not demonstrate immoral character and subject Respondent's certification to revocation. Furthermore, subsection 943.13(7), Florida Statutes, appears limited to initial certification as the good moral character prescribed is to be established by a background investigation. Once an applicant has established good moral character and is certified, the evidence of immoral character to warrant revocation of a certification must be a lot more than the certificate holder got slightly intoxicated at a football game, made excess noises, and was confronted by police officers who overreacted to the situation. But for the police officer who indicated she wanted Respondent to leave his seat and come to where she was and then attempted to evict him when he demanded an explanation of what he had done wrong, this incident would not have occurred. The fiasco was abetted by Officer Morraro suddenly grabbing Respondent's arm, twisting it behind his back, and the two officers pushing and pulling Respondent down the steps to the holding area where he resisted being handcuffed and accidentally struck Morraro with his elbow.

    
    

13. Suffice it to say, the evidence presented in no wise shows Respondent not to have a good moral character even if subparagraph (7) permits a review of the moral character of a certificate holder subsequent to a satisfactory background investigation. Absent any competent evidence to show Respondent to have been convicted of a crime involving moral turpitude or otherwise demonstrated immorality in office, these charges should never have been preferred.

    
    

14. From the foregoing it is concluded that the actions of Respondent at the football game on September 25, 1983, do not constitute resisting arrest with violence, do not constitute immorality or demonstrate lack of good moral character, and that he is not guilty of the offenses alleged; and, further, that even if the actions of

Respondent could, in a de novo background investigation, demonstrate lack of good moral character, those actions are not now grounds for revoking his certificate. It is

RECOMMENDED that all charges against Alvin E. Hargrove be dismissed and this case closed.

ENTERED this 28th day of June, 1985, at Tallahassee, Florida.

K. N. AYERS 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 28th day of June, 1985.

COPIES FURNISHED:

Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301

Alvin E. Hargrove

3013 East Sligh Avenue Tampa, Florida 33610

Robert R. Dempsey, Executive Director

Department of Law Enforcement Past Office Box 1489 Tallahassee, Florida 32301

Daryl G. McLaughlin, Director Division of Criminal Justice

Standards & Training Department of Law Enforcement Post Office Pox 1489

Tallahassee, Florida 32301

Docket for Case No: 85-000128

Orders for Case No: 85-000128