STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6260

)

LEONARD L. HUARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on January 16, 1990 in Miami, Florida.

APPEARANCES

For Petitioner: Rodney D. Gaddy, Esquire

General Counsel

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

For Respondent: James C. Casey, Esquire

Dade County Police Benevolent Association, Inc.

10680 Northwest 25th Street Miami, Florida 33172

STATEMENT OF THE ISSUES

The issue presented is whether or not Respondent is guilty of misconduct as alleged in the Administrative Complaint dated March 27, 1989, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By the Administrative Complaint dated March 27, 1989, the Criminal Justice Standards and Training Commission, Petitioner, seeks to impose disciplinary action against Leonard Huard, Respondent, who is a certified law enforcement officer. The Administrative Complaint alleges that on March 11, 1988, Respondent did unlawfully and knowingly obtain or use, or did endeavor to obtain or to use, clothesline, the property of Sears department store, with the unlawful intent to either temporarily or permanently deprive Sears of a right to the property or a benefit therefrom or to appropriate the property to his own use. This conduct is alleged to violate Section 943.1395(5),(6), Florida Statutes and Rule 11B-27.0011(4)(b), Florida Administrative Code, in that Respondent's conduct demonstrates a failure to maintain good moral character.

At the hearing, Petitioner called two witnesses and offered three exhibits, two of which were received into evidence. Respondent presented the testimony of two witnesses, testified on his own behalf and offered three exhibits, four of which were received into evidence. A transcript of the proceeding was filed on January 31, 1990. Both parties filed proposed recommended orders. A ruling has been made on each proposed finding of fact and is reflected in the Appendix to this recommended order.

FINDINGS OF FACT

1. On October 14, 1968, Respondent, was certified by the Criminal Justice Standards and Training Commission, was issued Certificate Number GF-101468 and is currently certified by the Criminal Justice Standards and Training Commission as a law enforcement officer.

   
   

2. On Friday, March 11, 1988, Respondent reported to work at the Metro- Dade Police Department, although ill and exhausted. Respondent had been suffering from an acute bronchial and strep throat-type condition prior to and including March 11, 1988 and had taken medication to combat the illness.

   
   

3. Respondent left work early on March 11, 1988 with approval of his supervisor and, although feeling conjested, stopped by Sears department store on his way home to inspect a miniature freezer for his wife's vending business. He purchased the freezer on his Sears credit card which he had with him.

   
   

4. Respondent, who was dressed in plain clothes, was carrying a shiny, leather, black briefcase with no handle which weighed a considerable amount and was cumbersome. The briefcase contained his weapon, handcuffs, bullets and miscellaneous paperwork.

   
   

5. Respondent, after purchasing the freezer, did some browsing, as is his custom, looking for gadgets. The security personnel for Sears noticed Respondent and began monitoring his activities.

   
   

6. At some point Respondent picked up a screwdriver item. Respondent placed the screwdriver under his arm, between the briefcase and his body, to free his hand in order to look at other items. He went to an available check out counter and paid cash for the screwdriver.

   
   

7. He returned to the merchandise area to look over some retractable clothesline which had caught his attention for use in his townhouse. He selected the item but was having a difficult time handling his briefcase and the slippery, plastic carded clothesline. He remembered that he needed some T- shirts to wear under his uniform. Again, to free a hand to look at the T- shirts, he placed the clothesline in the bag which contained the screwdriver with the intent of paying for the clothesline at the time he purchased the T- shirts.

   
   

8. Respondent left the hardware area of the store in search of the T- shirts when he began to feel nauseous. Fearing that he would vomit in the store, he decided to step outside. In his distraught condition, Respondent stepped outside the store without paying for the clothesline.

   
   

9. While Respondent was attempting to compose himself and almost immediately after he walked out of the store, he was approached by Fred Ponce of Sears security.

10. Mr. Ponce identified himself to Respondent and searched Respondent's bag of purchases which contained the clothesline. Respondent then realized he had, unwittingly, not paid for the item and remarked concerning the mistake.

    
    

11. The item in question had a retail value of $7.99, at the time of the incident, and Respondent had the cash and credit with him in an amount sufficient to cover the purchase.

    
    

12. Respondent was observed to be nervous, sweating and not looking well. Respondent was asked by Mr. Ponce to accompany him back to the security office inside the store, which Respondent did without incident.

    
    

13. Once inside the security office Respondent identified himself as a police officer, requested water and asked to speak to the store manager, Mr. Stephens. After speaking to the store manager, Respondent notified the Metro Dade Police Department about the incident.

    
    

14. Prior to leaving, Respondent was presented with a form, incident report for him to sign. The form language contained the following statement, "I had no intention of paying for this article." Respondent did not read the form carefully since he was under the impression, from what he was told by Sears' security personnel, that the form was merely an administrative report which he was required to acknowledge before he left. Feeling ill, distressed about the event and anxious to return to his work to speak with his supervisors, Respondent signed the form.

    
    

15. Respondent then returned to the Metro-Dade Police Department to personally discuss the incident with his superiors.

    
    

16. Respondent is a 21 year veteran of the Metro-Dade Police Department. At the time of the incident, he was assigned to the warehouse section of the Property and Evidence Bureau and was responsible for the accountability of millions of dollars of confiscated property including cash, drugs and jewelry. In the 3 years Respondent was so assigned, all inventory audits, which were done on a quarterly basis checked out. Respondent has a reputation in the community for honesty and integrity.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The burden is on the Petitioner to prove by clear and convincing evidence that Respondent committed the offense alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. The Administrative Complaint charges that Respondent's actions demonstrated a failure to maintain good moral character. Section 943.13(1) Florida Statutes, establishes the minimum qualities of character expected of law enforcement officers in Florida. Subsection (7) thereof provides:

    
    

    Have a good moral character as determined by the background investigation under procedures established by the Commission.

20. In his initial certification, Respondent ostensibly met this criterion.

    
    

21. Section 943.1395(5), Florida Statues, provides in pertinent part:

    
    

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

    
    

    Section 943.1395(6), Florida Statutes, establishes certain lesser penalties for application in appropriate cases. Both Sections 943.1395(5) and 943.1395(6) constitute the authority of Petitioner to impose disciplinary penalties against a certified law enforcement officer who is not of good moral character.

    
    

22. Moral character has been defined by the court in Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) as:

    
    

    Moral character as used in this statute, 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. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.

    
    

    See, Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978) and White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).

    
    

23. The Criminal Justice Standards and Training Commission has also provided its definition of failure to maintain good moral character for the purposes of Chapter 943.13(7) in its Rule 11B-27.0011(4), Florida Administrative Code. The Administrative Complaint alleges that Respondent violated the provision of paragraph (b) of Rule 11B-27.0011(4) which states in relevant part: 1/

    
    

    For the purpose of the Commission's implementation of any of the penalties enumerated in section 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by subsection 943.13(7), is defined in relevant part as

    * * *

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections..812.014(1)(d),F.S....

24. In his opening statement at the formal hearing and in his proposed recommended order, counsel for Petitioner asserted that the act with which Respondent is accused constitutes petit theft. Although Section 812.014(1)(d), Florida Statutes does not exist and its reference in Rule 11B-27.0011(4) is clearly a scrivener's error, the correct citation should refer to Section 812.014(2)(d), Florida Statutes, which addresses the elements which constitute petit theft. The ultimate element of petit theft is theft itself. Theft is defined in the introductory paragraph of Section 812.014 and reads as follows:

    
    

    1. A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       1. Deprive the other person of a right to the property or a benefit therefrom.

       2. Appropriate the property to his own use or to the use of any person not entitled thereto.

          
          

25. Thus, to prove that Respondent lacked good moral character, in this instance, Petitioner must clearly prove that Respondent had the intent to take the clothesline without paying for the item. However, the proof is clear that Respondent did not intend to take the merchandise. In fact, Respondent intended to pay for the clothesline when he purchased the T-shirts. However, he became ill and momentarily left the store to compose himself.

    
    

26. At the hearing, Petitioner argued that Respondent's signature on the incident report was an admission of his intent not to pay for the merchandise. It is true that Respondent signed the form that stated that he did not intend to purchase the clothesline. However, given Respondent's physical condition at the time of the incident, his understanding of the purpose of the form, the stress of having been accused of taking the merchandise and the urgency he felt to personally report the incident to his superior, it is understandable that he did not carefully read the form or intend for his signature to be an acknowledgment of any intent on his part not to pay for the merchandise.

    
    

27. Accordingly, Petitioner has failed to prove that Respondent committed petit thief which would have constituted a failure to maintain good character in violation of Section 943.13(17) or violated the provision of Rule 11B-27.- 0011(4)(d).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Training Commission issue a Final

Order dismissing the charges alleged in the Administrative Complaint entered in

this case.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February 1990.

JANE C. HAYMAN

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 15th day of February, 1990.

ENDNOTES

1/ Rule 11B-27.0011(4)(b) references numerous sections of the Florida Statutes which set out the elements of certain offenses. Pursuant to the rule, if a certified law enforcement officer commits one of the specified offenses, his action constitutes the lack of good moral character.

Petitioner asserted, in this instance, the relevant reference within Rule 11B-27.0011(4)(b) is Section 812.014(1)(d), Florida Statutes. Section 812.014(1)(d) does not and has never existed. Chapters 88-312, 87-376, 86-161, 82-164, 80-389, 79-124, 78-348, 77-342, Laws of Florida.

However the reference to Section 812.014(1)(d) in Rule 11B-27.0011(4)(d) is clearly a scriveners error, and the intent of the drafters of Rule 11B- 27.0011(4)(b) was to cite Section 812.014(2)(d). Effective October 25, 1988, paragraph (4) of Rule 11B-27.0011 was amended. The amendment deleted the previous version of paragraph (4) and replaced it with a substantially reworded and renumbered paragraph (4). The former paragraph (4)(a) contained the references to numerous provisions of the Florida Statutes similar to the current paragraph (4)(b). Included in the former paragraph (4)(a) was reference to Section 812.014(2)(c). In its stead, the new rule inserted Section 812.014(d). In 1987, prior to the amendment of Rule 11B-27.0011(4), Section 812.014(2)(c) set out the elements of petit theft. Section 812.014(2)(c), Florida Statutes, (1987). In 1987, Subsection 812.014(2) was amended and the paragraphs therein were renumbered, specifically paragraph (c). Chapter 87-376, Laws of Florida.

Paragraph (c) became paragraph (d). Id. In other words, the elements of petit theft were transferred to Paragraph 812.014(2)(d) from Paragraph 812.014(2)(c).

It is reasonable to assume that one of the purposes of the 1988 amendment to Rule 11B-27.0011(4) was to accommodate the changes in statutory numbering.

Being advised that petit theft is the subject of proposed discipline here and reference to the statute which sets out petit theft was included in the previous version of Rule 11B-27.0011(4) but is not included in the current version of Rule 11B-27.0011(4), it is rational to conclude that the drafters of the current Rule 11B-27.0011(4)(b) intended to include reference to petit theft as set out in Section 812.014(2)(d).

To compound the problem, the current rule, as filed with the Secretary of State and as submitted to the editors of the Florida Administrative Code Annotated refers to Section 812.014(d), Florida Statutes. No such subsection exists or has existed. Chapters 88-312, 87-376, 86-161, 82-164, 80-389, 79-124,

78-348, 77-342.

What has occurred here is a double oversight, one on the part of the drafter and the other on the part of the editor.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6260

Petitioner's proposed findings of fact are addressed by paragraph as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 3.

3. Adopted in paragraph 5.

4. Adopted in paragraph 6.

5. Adopted in paragraph 7.

6. Adopted in paragraph 7.

7. Adopted in paragraph 7.

8. Adopted in paragraph 7.

9. Rejected as not supported by competent, substantial evidence.

10. Adopted in paragraph 8.

11. In part, adopted in paragraphs 9 and 10. In, part, not supported by competent, substantial evidence.

12. Adopted in paragraph 12.

13. Adopted in paragraph 14.

14. Adopted in paragraph 14.

15. Adopted in substance in paragraphs 13 and 14.

16. Irrelevant.

Respondent's proposed findings of fact are addressed by paragraph as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 16.

3. Adopted in paragraph 2.

4. Adopted in paragraph 2.

5. Adopted in paragraph 3.

6. Adopted in paragraph 4.

7. Adopted in paragraph 6.

8. Adopted in paragraph 11.

9. Adopted as subordinate to paragraphs 7 and 8.

10. Adopted in paragraph 7.

11. Adopted in paragraph 8.

12. Adopted in paragraphs 8 and 9.

13. Adopted in paragraph 10.

14. Adopted in paragraph 12.

15. Adopted in paragraph 12.

16. Adopted in paragraph 13.

17. Adopted in paragraph 13.

18. Adopted in paragraph 14.

COPIES FURNISHED:

Rodney D. Gaddy, Esquire General Counsel

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

James C. Casey, Esquire

Dade County Police Benevolent Association, Inc.

10680 Northwest 25th Street Miami, Florida 33172

James T. Moore, Commissioner

Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-006260

Orders for Case No: 89-006260