STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING, )

)

Petitioner, )

vs. ) CASE NO. 88-3999

)

TERRY D. SHUTTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on January 12, 1989, in St. Cloud, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows: For Petitioner: Joseph S. White

Assistant General Counsel Florida Department of

Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

For Respondent: Terry D. Shutts, pro se

BACKGROUND

7

On July 19, 1988, Petitioner filed an Administrative Complaint against

Respondent with respect to the falsification of an official record. The Administrative Complaint alleged that Respondent unlawfully and knowingly, while acting as an auxiliary trooper for the Florida Highway Patrol, falsified a faulty equipment notice with an intent to mislead his superiors.

On August 5, 1988, Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing.

At the hearing, Petitioner called five witnesses and offered into evidence two exhibits. Respondent called no witnesses and offered into evidence no exhibits. Both exhibits were admitted into evidence.

Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.

FINDINGS OF FACT

1. Respondent is and at all material times has been certified as a auxiliary law enforcement officer by Petitioner in the State of Florida, holding license number 01-7570.

2. During 1986, Respondent was working part-time as an unpaid auxiliary trooper for the Florida Highway Patrol.

   
   

3. Shortly before 11:00 p.m. on the evening of May 31, 1986, Respondent was riding in a marked Florida Highway Patrol car with Trooper Clark Dickenson of the Florida Highway Patrol.

   
   

4. At the same time, Sergeant Donald Smith, who was driving another Florida Highway Patrol car, was monitoring two vehicles proceeding south on U.S. Highway 441 toward Kissimmee. Due to the excessive speed of the vehicles, Sergeant Smith decided to stop the vehicles, but needed assistance to stop both of them. He therefore radioed Trooper Dickenson, described the lead car, and directed him to stop and detain the driver while Sergeant Smith stopped and ticketed the driver of the other car.

   
   

5. Pursuant to Sergeant Smith's instructions, Trooper Dickenson stopped the lead vehicle, which was a three-month old 1986 Chevrolet Camaro being driven by Cynthia Cramer. Trooper Dickenson approached Ms. Cramer's automobile and informed her that she would have to await the arrival of another highway patrolman in order to receive a citation. Pursuant to Trooper Dickenson's request, Ms. Cramer gave him her driver's license.

   
   

6. Within five or ten minutes, Sergeant Smith arrived at the scene. Trooper Dickenson handed the driver's license to Sergeant Smith and shortly thereafter left the scene with Respondent, who had not left Trooper Dickenson's car during this time.

   
   

7. Sergeant Smith issued a citation to Ms. Cramer for speeding. Ms. Cramer received no other citations, notices, or warnings of any nature from Sergeant Smith, Trooper Dickenson, or Respondent, either at the scene or at anytime thereafter.

   
   

8. During this time period, unknown to Respondent and the Florida Highway Patrol, Trooper Dickenson had been falsifying faulty equipment notices in order to mislead his superiors into believing that his level of activity as a highway patrolman was higher than in fact it was. From April to July, 1986, he filed over 100 notices to drivers for whom Trooper Dickenson supplied fictitious driver's licenses. However, the notices, which were ordinarily issued to the driver at the scene, were never in fact issued.

   
   

9. The notices were mere warnings rather than citations and did not result in points being assessed against the driver's license. At the time, the follow- up on a faulty equipment notices was nearly nonexistent, so that the falsifications were difficult to detect and resulted in no adverse consequences to the drivers, who naturally "ignored" the notices that were never issued.

   
   

10. Shortly after the above-described incident involving Ms. Cramer, Trooper Dickenson ordered Respondent to complete the upper portion of a Notice of Illegal or Faulty Equipment for the Cramer vehicle and show that it had one headlight out.

    
    

11. Respondent completed a Notice of Illegal or Faulty Equipment for the Cramer vehicle. The notice was inaccurate as to month, day, and year of birth for Ms. Cramer. The notice was inaccurate as to two of the three digits and two of the three letters of the license tag. The notice was inaccurate by one year as to the year of the car. Most significantly, the notice was inaccurate as to

    the condition of the headlights: both were operating that evening. However, unlike all of the other cases involving falsified faulty equipment notices issued by Trooper Dickenson, the driver's license number for Ms. Cramer was correct.

    
    

12. After Respondent had filled out the upper portion of the above- described notice, Trooper Dickenson signed the form and filed a copy with the Florida Highway Patrol with the intent to mislead his superiors to his advantage. He never issued the driver's copy to Ms. Cramer.

    
    

13. There is no proof that Respondent knew that the notice was inaccurate as to the condition of the headlights. There is no proof that Respondent himself saw the headlights operating or that Trooper Dickenson confessed to Respondent that the notice was fraudulent as to the condition of the headlights. There is no proof that Respondent was aware of any impropriety in the failure of Trooper Dickenson to complete and issue the notice while on the scene or any intent on the part of Trooper Dickenson not to issue the notice in due course after its preparation by Respondent.

    
    

14. However, Respondent knew that he was completing the form with inaccurate information. The inaccuracies, apart from the condition of the headlights, were not due to errors on Respondent's part. Respondent knew that he lacked the requested information and intentionally supplied information that he knew to be incorrect.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioner has jurisdiction to revoke the licenses of law enforcement officers, including auxiliary officers. Section 943.1395(5), Florida Statutes.

    
    

17. Petitioner is required to revoke the licenses of law enforcement officers who are not of good moral character. Sections 943.13(7) and 943.1395(5), Florida Statutes.

    
    

18. Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

19. Contrary to the contention of Petitioner in its proposed recommended order, the evidence does not prove "substantial doubts concerning Respondent's honesty." Respondent's honesty would be in doubt if he had known that the headlights were operating and nonetheless stated in the notice that one headlight was out. However, the evidence did not show that Respondent knew that both headlights were operating. Petitioner proved only that Respondent filled out certain identifying information in conscious disregard of the accuracy of the information. Absent proof that Respondent was aware of the untruth of his description of the condition of the headlights, Petitioner failed to prove by clear and convincing evidence that Respondent lacks good moral character. Without proof of how much time passed before Respondent completed the form, even the after- the-fact completion of the form is not proof of dishonesty. No adverse inference could be drawn if Respondent, after having been asked to do so earlier by Trooper Dickenson, belatedly filled out the form in a careless manner as Trooper Dickenson drove away from the scene.

20. In sum, Petitioner has proven only that Respondent was careless and consciously disregarded his obligation to complete the notice accurately. Respondent's carelessness happened to take place at a time that Trooper Dickenson was systematically falsifying records, but, from Respondent's point of view, was not part of this fraudulent scheme. Respondent's actions therefore fall short of the type of dishonesty of which Trooper Dickenson was guilty and which Petitioner correctly argues violates the requirement of good moral character.

RECOMMENDATION

In view of the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.

ENTERED this 20th day of February, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1989

APPENDIX

unsupported by the greater weight of the evidence. COPIES FURNISHED:

Terry D. Shutts 1210 Marygon Street

Kissimmee, FL 32743

Joseph S. White

Assistant General Counsel Florida Department of

Law Enforcement PO Box 1489

Tallahassee, FL 32302

Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302

Daryl McLaughlin Executive Director

Florida Department of Law Enforcement

-Post Office Box 1489 Tallahassee, FL 32302

Rodney Gaddy, Esq.

General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Docket for Case No: 88-003999

Orders for Case No: 88-003999