STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE No. 88-3990

)

ERIC E. PEASANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 17, 1988, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Joseph S. White

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

For Respondent: Denis Dean

DEAN & HARTMAN, P.A.

10680 Northwest 25 Street, Suite 200

Miami, Florida 33172 BACKGROUND AND PROCEDURAL MATTERS

This case began on July l9, 1988 when the Criminal Justice Standards and Training Commission (Commission) entered an administrative complaint against Respondent. This complaint alleged Respondent had violated Sections 943.1395(5), and 943.13(7), Florida Statutes, which require a law enforcement officer to have a good moral character, as a result of incidents which occurred on or about April 9, 1987. Specifically, the complaint alleged Respondent had filed false or misleading information in support of a worker compensation claim and had committed battery upon an individual named Connie Hawkins. Respondent denied the factual allegations of the complaint and filed an Election of Rights on August 8, 1988. The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 16, 1988.

At the hearing, the Commission presented the testimony of the following witnesses in support of its case: Connie Hawkins, Lucius L. Wilcox, Robert L. Miller, Perry Scott Allen, and John C. Baker, Sr. The Commission's exhibit numbered 1 was admitted into evidence. The Respondent testified in his own

behalf and presented the testimony of the following witnesses: Anthony Black and Leroy Jabson.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512.

   
   

2. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida.

   
   

3. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise.

   
   

4. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm.

   
   

5. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle.

   
   

6. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days.

   
   

7. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987.

8. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the

   injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.-

   
   

9. Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8.

   
   

10. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District.

    
    

11. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987.

    
    

12. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges.

    
    

13. The Notice of Injury signed by Respondent contained information which was false or misleading.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

15. Section 943.1395(5), Florida Statutes, provides, in part:

    
    

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

    
    

16. Section 943.13, Florida Statutes, sets forth the minimum qualifications for certification as a law enforcement officer. Subsection (7) provides:

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

1. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the court described what is meant by "moral character" as follows:

   Moral character * * *means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

   
   

2. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1987), the court stated:

   
   

   In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

   
   

3. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity.

   
   

4. In this case, the Commission has proved the Respondent's conduct revealed a lack of good moral character. The Commission has established by clear and convincing evidence that through deception and deceit the Respondent transformed what should have been a minor infraction relating to a domestic quarrel into a major act of dishonesty. Such a tangled web Respondent created by a simple failure to honestly relate how he sustained the injury to his arm. Had he admitted the fight, showed any remorse, and offered any credible explanation for the injury, he would not have aroused suspicion of his moral character. By steadfastly holding to his story, Respondent demonstrated a lack of good moral character.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent.

DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 19th day of January, 1989.

APPENDIX

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-38 are accepted.

2. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein.

3. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible.

4. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above.

5. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-5 are accepted.

2. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph

   6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible.

3. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence.

4. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause.

5. Paragraph 9 is rejected as contrary to the weight of credible evidence.

6. Paragraph 10 is accepted; however the facts related in that form were false or misleading.

7. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause.

8. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause.

COPIES FURNISHED:

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

Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street

Suite 200

Miami, Florida 33172

Daryl McLaughlin Executive Director

Department of Law Enforcement

P. O. Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice standards Training Commission

P. O. Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-003990

Orders for Case No: 88-003990