STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

vs. ) CASE NO. 86-2383

)

NICHOLAS R. SMALL, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Joseph S. White, Esquire

Tallahassee, Florida

For Respondent: Peter Kneski, Esquire

Miami, Florida

This matter was heard in Miami, Florida, on October 17, 1986, by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings. A transcript of the proceeding was filed, and proposed findings of fact and conclusions of law were submitted by the Petitioner. No such proposals were submitted by the Respondent. Rulings on the proposed findings of fact are made in the appendix to this recommended order.

ISSUES

The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.

FINDINGS OF FACT

1. Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint.

   
   

2. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint.

   
   

3. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small

   children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black.

   
   

4. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue.

   
   

5. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car.

   
   

6. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did.

   
   

7. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running.

   
   

8. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down.

   
   

9. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain.

   
   

10. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more.

    
    

11. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart.

    
    

12. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car.

    
    

13. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks.

    
    

14. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest.

    
    

15. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there.

16. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up.

    
    

17. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings had jurisdiction in this matter. Section 120.57(1), Florida Statutes (1985).

    
    

19. Law enforcement officers are required to demonstrate certain minimum qualifications for certification which include that they:

    
    

    Have a good moral character as determined by a background investi- gation under procedures established by the commission. Section 943.13 (7), Florida Statutes (1985).

    
    

20. Under Section 943.1395(5), Florida Statutes (1985):

    
    

    The commission shall revoke the certificate of any officer who is not in compliance with the pro- visions of Section 943.13(1)-(10)...

    
    

    The statutory qualifications for law enforcement officers in effect on the dates of the misconduct involved here included the requirement that the Respondent be of good moral character. See 943.13(7), Florida Statutes (1977) and Section 943.13(7), Florida Statutes (1981).

    
    

21. There was no rule of the commission providing for the revocation of certificates for misconduct until 1979, and the commission did not receive statutory revocation authority until 1980, but these facts are of limited significance. The power of the commission to issue certificates inherently carries with it the power to revoke them, if one who has received a certificate fails to maintain statutory qualifications to retain it. See Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982) and State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). Moreover, the question at issue here is whether the past misconduct of Mr. Small establishes a present lack of qualification for certification by conduct which shows a lack of good moral character.

    
    

22. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Supreme Court of Florida defined good moral character in a bar admissions case as encompassing:

    
    

    acts and conduct which would

    cause a reasonable man to have substantial doubts about an individual's honesty, fairness, respect for the rights of others and for the laws of the state and nation.

    
    

23. The facts of this case show intentional infliction of pain upon Albert Taylor in a situation that can only be characterized as an abuse of Mr. Small's position as a police officer. The needless infliction of pain upon a person who has recently had hip surgery, when the officer has been put on notice of this fact, gives rise to substantial doubts about Mr. Small's fairness and respect for the rights of others.

    
    

24. There is also adequate evidence that, after being told that a small child had been abandoned on a city street, Mr. Small did nothing to provide for her safety, either by picking her up or by notifying other officers who could take steps to protect her.

    
    

25. Mr. Small presented no evidence of current good moral character to provide any basis to temper the findings of his past bad acts with evidence of rehabilitation.

    
    

26. The facts of this case convincingly demonstrate that Mr. Small does not posses good moral character as required by Section 943.13(7) and Section 943.1395(5), Florida Statutes (1985).

RECOMMENDATION

It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED.

DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 5th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

The substance of Petitioner's proposed findings of fact have been accepted.

Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted.

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Peter Kneski, Esquire Biscayne Building, Suite 626

19 West Flagler Street Miami, Florida 33130

Rod Caswell, Director

Criminal Justice Standards and Training Commission

Department of Law Enforcement 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: 86-002383

Orders for Case No: 86-002383