STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3104

)

DON H. RAULERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lake Butler, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 24, 1988. The parties are represented as follows:

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Don H. Raulerson, pro se

The issue addressed in this proceeding is whether Respondent's license as a correctional officer should be revoked or disciplined under Chapter 943 for lack of good moral character in that Respondent allegedly unlawfully placed or made a destructive device with the intent to do bodily harm to another person in violation of Section 790.161, Florida Statutes.

Petitioner called five witnesses. Respondent was present and cross examined Petitioner's witnesses, but did not testify in his own behalf since Petitioner failed to present clear and convincing evidence that Respondent lacked good moral character.

Neither party submitted a proposed recommended order.

FINDINGS OF FACT

1. Since July 1, 1981, Respondent had been a certified correctional officer, holding certificate number C-3285. Currently, Respondent is no longer employed as a correctional officer. However, on January 10, 1987, Respondent was employed as the arsenal officer at the Union County Correctional Institution.

2. Prior to and including January 10, 1987, Respondent had been experiencing a great deal of marital difficulty with his wife, Candy. Sometime around January 10, the Raulerson's decided to part company.

   
   

3. On January 10 at about 5:15 p.m., Candy Raulerson asked Sheriff Deputy Joseph Guyott to accompany her to the marital residence in order to pick up some of her things.

   
   

4. Upon arriving Deputy Guyott observed a sign on the door warning persons to enter at their own risk. No one appeared to be at home. He, also, observed a shotgun shell attached to the door and a fishing line attached to the door handle at one end and to a buried beer can at the other end. The shell could be clearly seen. Ms. Raulerson's things had been placed outside the home in the rain.

   
   

5. Upon observing the shell arrangement at the front door, Deputy Guyott secured the area and called the Sheriff.

   
   

6. Once the Sheriff arrived, he began to investigate the area around the residence. At the back door of the residence the Sheriff discovered a tear gas or smoke canister 1/ attached to a line at one end and tied to the back door at the other end. The line had so much slack in it that nothing would happen when the door was opened. More importantly, the canister had been rendered inoperable by bending over the firing pin and taping the spoon. The canister was neither explosive nor poisonous. Petitioner, therefore, failed to prove any violation of Section 790.161, Florida Statutes.

   
   

7. Upon entering the residence through the back door the Sheriff walked to the front door. He observed that the shotgun shell had been attached to an electric cord. The cord was attached to the brass end of the shell. However, the Sheriff could not remember whether the cord was attached to the shell's primer. The cord was run behind the sofa, but was not plugged in. No evidence was presented by Petitioner as to the explosive potential, if any, of this arrangement. Petitioner, therefore, failed to prove that Respondent had violated Section 790.161, Florida Statutes.

   
   

8. More importantly, however, is that the evidence is clear that Respondent had absolutely no intent to harm anyone, 2/ but only wished to scare off any person attempting entry. The Sheriff admitted that after seeing the front and back door arrangements that it was apparent that Respondent did not intend to hurt anyone and neither arrangement was rigged to do any damage.

   
   

9. Petitioner's evidence only demonstrates that Respondent was defending his property from his wife's meddling during a time when they were experiencing a great deal of marital difficulty. Respondent utilized a scare tactic that was not dangerous and not intended to hurt anyone, but only to keep someone out during his absence. Respondent did not commit any crime by rigging the canister and the shell in the manner he did. Moreover, Respondent's actions do not demonstrate any lack of good moral character on his part.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. The burden of proof is on the Petitioner to establish by clear and convincing evidence that the facts alleged in the administrative complaint were correct and that the facts constitute a violation of the statutes and rules. In this case, the Petitioner has not met this burden.

    
    

12. Section 943.1395(5) empowers Petitioner to revoke a correctional officer's certification should the officer fail to maintain the requirements set forth in Section 943.13(1)-(10).

    
    

13. The specific requirement which Petitioner alleged Respondent failed to maintain was the requirement of a good moral character contained in Section 943.13(7) by unlawfully making or placing a destructive or explosive device with the intent to do bodily harm. (Prohibited under Section 790.161, Florida Statutes.)

    
    

14. The evidence failed to demonstrate any of the elements of the crime set forth in Section 790.161, Florida Statutes. Moreover, the evidence failed to demonstrate any lack of good moral character on the part of Respondent which would subject his certification to revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the administrative complaint against Respondent be DISMISSED.

DONE and ENTERED this 2nd day of November, 1988, in Tallahassee, Florida.

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 2nd day of November, 1988.

ENDNOTES

1 The evidence was not clear as to what the canister contained. However, the canister was the type the prison uses for crowd control.

2/ Respondent had admitted to the Sheriff rigging the canister and the shell. He also told the Sheriff that he only wanted to scare his wife so that she would not enter the residence and take his things.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Don H. Raulerson Post Office Box 2008

High Springs, Florida 32643

Rod Caswell, Director Department of Law Enforcement Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Robert R. Dempsey Executive Director

Department of Law Enforcement Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-003104

Orders for Case No: 88-003104