STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0013

)

DANIEL H. BENNETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; an administrative hearing was held before William R. Caved Hearing Officer, with the Division of Administrative Hearings on May 16; 1986 in Bunnell Florida. The issue for determination is whether the Respondent's certification as a law enforcement officer should be revoked for failure to maintain the qualifications of good moral character as required under Section 943.13(7), Florida Statutes.

APPEARANCES

For Petitioner: Joseph S. Whites Esquire

Florida Department of Law Enforcement Post Box 1489

Tallahassee Florida 32302

For Respondent: Daniel H. Bennett, Pro Se

Post Office Box 1493 Bunnell, Florida 32010

By an Amended Administrative Complaint dated November 27, 1985, and filed with the Division of Administrative Hearings on January 6, 1986, the Petitioner seeks to revoke Respondent's certification as a law enforcement officer. As grounds therefore it is alleged that the Executive Orders, the Report and Order of the Florida Senate and the facts found by the Special Master which formed the basis for the Report and Order of The Florida Senate, show Respondent's noncompliance with Section 943.13(7), Florida Statutes, in that Respondent failed to maintain good moral character, and furnishes the grounds for revocation of Respondent's certification pursuant to Section 943.1395(5), Florida Statutes.

On May 8, 1986, Petitioner filed a Motion For Leave To Amend the Amended Administrative Complaint by amending paragraph one (1) to reflect the date of Respondent's certification as October 27, 1978, rather than October 27, 1975. The motion was heard and granted at the hearing and the hearing proceeded on the Second Amended Complaint as the charging document.

On the day of the hearing, Respondent filed a Motion To Dismiss. Upon consideration of the argument of the parties and the record in its entirety; the Motion To Dismiss is Denied.

In support of the charges; Petitioner presented the testimony of Harry Joe Kendricks and Petitioner's Composite Exhibit No. 1 was received into evidence.

Respondent presented the testimony of John Lawrence and Lawrence David Dempsey but did not present any documentary evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found:

1. At all times material to this proceeding; Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission (Commission). Respondent was issued certificate number 99-002310 by the Commission on October 27, 1978.

   
   

2. On January 5, 1983, Respondent, then the duly elected Sheriff of Flagler County, Florida, was suspended from the Office of Sheriff of Flagler County, Florida, by Executive Order 83-1 issued by Bob Graham Governor of the State of Florida (Governor). The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offenses of misfeasance, malfeasance neglect of duty and/or incompetence.

   
   

3. On March 23, 1983, Executive Order 83-1 was amended by Executive Order 83-40 enlarging the grounds upon which the suspension was initially based and continued Respondent's suspension from office as Sheriff of Flagler County, Florida. The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offense of misfeasance, malfeasance, neglect of duty, incompetence and/or commission of a felony.

   
   

4. During May 1983, a hearing upon the allegations of Executive Order 83-1 and 83-40 was conducted by Special Master D. Stephens Kahn (Special Master) appointed by the Senate President on January 13, 1983. The Respondent was present and represented by counsel at the hearing.

   
   

5. On June 1, 1983, the Report and Recommendation of Special Master was filed with the Florida Senate (Senate) setting forth the Special Master's findings of fact (findings) and sustained nine (9) out of twelve (12) charges or subcharges brought by the Governor. Based on those findings, the Special Master recommended, among other things, that Respondent be removed from the Office of Sheriff of Flagler County, Florida.

   
   

6. On June 2, 1983, the Report and Recommendation of the Special Master was received and approved by the Senate. On the same day the Senate voted to remove the Respondent from the Office of Sheriff of Flagler County, Florida. The Senate's Report and Order was filed on June 3, 1983.

7. Other than the findings of the Special Master, there was no evidence presented at the hearing to show that Respondent had committed the acts alleged by the Governor in his Executive Order of suspension or those acts which formed the basis for the Senate's action in removing Respondent from office.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The alleged misconduct of which Respondent Bennett is accused purportedly puts him in noncompliance with Section 943.13(1), Florida Statutes, which requires, among other things, that a certified law enforcement officer maintain good moral character.

   
   

10. Section 943.1395(5), Florida Statutes, empowers and requires the Commissioner to revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes.

    
    

11. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services 348 So. 2d 349 (1st DCA Fla. 1977). The Petitioner has failed to meet its burden.

    
    

12. Petitioner contends that the Executive Order of suspension for misfeasance malfeasance, neglect of duty, commission of a felony and/or incompetence, the findings of the Special Master sustaining a majority of the allegations contained in the Executive Order and the subsequent Order of removal by the Senate when viewed in their totality constitute competent substantial evidence that Respondent failed to maintain the qualifications of good moral character as required by Section 943.13(7), Florida Statutes.

    
    

13. Where a licensee of a regulated profession has been found guilty or convicted in a court of competent jurisdiction of a crime which relates, among other things, to the licensee's moral characters the licensee is subject to disciplinary action and the legislature has provided statutory authority for the record of conviction to be admitted as prima facie evidence of quilt. However, the legislature has not provided statutory authority to allow non-judicial determinations to be given the same evidentiary weight as a record of conviction in a court of competent jurisdiction in administrative proceedings even though admissible. Therefore, unlike a record of conviction, non-judicial determinations, standing alone, have no intrinsic value in this administrative proceeding.

    
    

14. Moreover, the findings of the Special Master which formed the basis for sustaining the majority of the allegations contained in the Governor's Executive Orders of suspension and subsequently the basis for the Senate Order of removal are the result of certain documentary evidence and testimony of several witnesses appearing before the Special Master. Although, admissible, these findings are purely hearsay, uncorroborated by any substantial competent evidence and have no probative value in this proceeding. Therefore, the findings are insufficient to support a finding that Respondent committed the acts as alleged.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations as charged in the Second Amended Administrative Complaint and that the Second Amended Administrative Complaint be DISMISSED.

Respectfully submitted and entered this 17th day of July 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of July 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0013

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact submitted by the Petitioner

1. Covered in the preliminary material.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3.

5. The first (1st) two (2) sentences of subparagraph 1 adopted in Finding of Fact 4. The third (3rd) sentence of subparagraph 1 rejected as immaterial. The second (2nd) and third (3rd) subparagraphs adopted in Finding of Fact 5. A Subparagraphs 4(a-i) are rejected as hearsay uncorroborated by any substantial competent evidence that has no probative value and alone are insufficient to establish a finding.

6. Adopted in Finding of Fact 5 but modified.

7. Adopted in Finding of Fact 5.

8. Adopted in Finding of Fact 6.

Rulings on Proposed Findings of Fact

Submitted by the Respondent 1-8, 11 and 12. Rejected as legal argument.

9 and 10. Rejected as immaterial and irrelevant.

COPIES FURNISHED:

Robert R. Dempsey Executive Director

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

Daryl O. McLaughlin Criminal Justice Training

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

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Daniel H. Bennett Post Office Box 19493

Bunnell, Florida 32010

Docket for Case No: 86-000013

Orders for Case No: 86-000013