STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0180

)

DAVID R. KELLY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on November 24, 1987. The Division of Administrative Hearings received the hearing transcript on December 8, 1987. Respondent's proposed findings of fact and analysis were filed December 30, 1987, and petitioner's proposed findings of fact and conclusions of law were filed the following day. The attached appendix addresses the parties' proposed findings of fact by number.

The parties are represented by counsel:

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Gene "Hal" Johnson, Esquire

Florida Police Benevolent Assn., Inc.

223 West College Avenue Tallahassee, Florida 32301

By Administrative Complaint dated November 28, 1986, as subsequently amended, petitioner alleged that respondent "was issued Certificate Number 02- 14196 "after being certified by the Criminal Justice Standards and Training Commission on August 8, 1976"; that he "[o]n or about various dates between January, 1985, and February, 1985, . . . did . . . unlawfully violate Section 784.03, Florida Statutes, by committing on three separate occasions, a battery upon the person of a female juvenile"; that the "actions of the respondent did violate the provisions of Section 943.1395(5), Florida Statutes, in that respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character"; and that respondent's certificate should be revoked on that account.

FINDINGS OF FACT

1. Respondent David R. Kelly was certified by the Criminal Justice Standards and Training Commission on August 8, 1976, and was issued a certificate, No. 0214196.

   
   

2. On March 1O, 1986, in Pensacola, respondent Kelly entered a plea of nolo contendere to three counts charging simple misdemeanor battery in violation of Section 784.03, Florida Statutes; and the Honorable Lacey A. Collier accepted the plea as Judge of the Circuit Court for the First Judicial Circuit. Respondent's Exhibit No. 1.

   
   

3. On April 9, 1986, Judge Collier entered an order withholding adjudication of guilt and placing respondent on probation. Respondent's Exhibit No. 2.

   
   

4. At no time has respondent ever been convicted of a crime. (T.19)

   
   

5. Having consistently maintained his innocence, Respondent's Exhibit No. 5, respondent Kelly nevertheless pleaded nolo contendere, on the advice of counsel, for fear he could "lose through the news media," (T. 16) even if acquitted.

   
   

6. At the time the battery allegations arose, respondent Kelly worked for the Florida Highway Patrol which dismissed him on account of the allegations.

   In subsequent proceedings before the Public Employees Relations Commission (PERC), the alleged victim testified, as she had earlier testified on deposition in the criminal proceedings, that the respondent had fondled her breasts.

   Petitioner's Exhibits No. 1 and 2. The PERC proceedings eventuated in orders explicitly rejecting respondent's accuser's testimony and recommending his reinstatement. Respondent's Exhibit No. 4.

   
   

7. The evidence adduced in the present case does not show whether or not respondent perpetrated one or more batteries on his accuser. She did not testify.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner is authorized to "revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10). "

   Section 943.1395(5), Florida Statutes (1985). Here petitioner alleges that respondent "is not in compliance with" the statutory requirement that he "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." Section 943.13(7), Florida Statutes (1985). The record is silent as to what procedures, if any, the commission may have adopted, in this regard.

   
   

9. In proceedings to revoke licenses or certificates, the regulatory agency has the burden to prove the factual basis for the action it proposes by clear and convincing evidence. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980), and strict procedural protections apply. The prosecuting agency has the burden to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

10. Assuming respondent's nolo contendere plea is properly admissible on the question whether respondent was guilty of the conduct of which he was originally accused, see The Florida Bar vs. Lancaster, 448 So.2d 1019 (Fla. 1984); Kinney vs. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987); Ayala vs. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), his protestation of innocence under oath at hearing cannot be overcome by the nolo plea.

    
    

11. Petitioner did not show by a preponderance, much less clearly and convincingly, that respondent committed the acts of which he was accused. On the one other occasion the question was litigated, respondent prevailed; and, then, although not now, the alleged victim's testimony was adduced.

It is, accordingly, RECOMMENDED:

That petitioner dismiss the Administrative Complaint filed against respondent in this matter.

DONE and ENTERED this 28th day of January, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0180

Petitioner's proposed findings of fact Nos. 1, 3 and 4 have been adopted in substance, insofar as material.

Petitioner's proposed finding of fact No. 2 has been adopted, in substance, insofar as material, except that proceedings were in Circuit Court.

Petitioner's proposed findings of fact Nos. 5, 6, 7 and 8 recite testimony which is neither found to be true nor rejected as false.

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, and 7 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact No. 6 has been adopted, in substance, except that the evidence did not show whether or not "Kelly was guilty of the charges".

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Gene "Hal" Johnson, Esquire Florida Police Benevolent

Association, Inc.

223 West College Avenue Tallahassee, Florida 32301

Robert R. Dempsey Executive Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee Florida 32302

Rod Caswell, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. DOAH CASE NO.: 87-0180

CJSTC CASE NO.: L-1889

DAVID R. KELLY,

Certificate Number: 0214196

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public hearing on April 21, 1988, in Tallahassee, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was not present.

Upon a complete review of the transcript of record of hearing held on November 24, 1987, in Tallahassee, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated January 29, 1988, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

Having reviewed the Recommended Findings of Fact (which are attached hereto and incorporated by reference), and the exceptions filed thereto, the Commission adopts the Hearing Officer's findings of fact except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law (which are attached hereto and incorporated by reference) and the exceptions filed thereto, the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number: 0214196, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 8th day of June, 1988.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

COLONEL BOBBY R. BURKETT, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to DAVID R. KELLY, 1011 Hansen Boulevard, Pensacola, Florida 32305, by U.S. Mail on or before 5:00 P.M., this 8th day of June, 1988.

cc: All Counsel of Record

Docket for Case No: 87-000180

Orders for Case No: 87-000180