vs. ) CASE NO. 89-6854
JERRY E. STIER, )
Respondent. )
Pursuant to notice, final hearing in the above-styled case was held on May 1, 1990, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
For Petitioner: Joseph S. White, Assistant General Counsel Florida Department of Law Enforcement Division of Criminal Justice
For Respondent: Attorney Douglas E. Whitney
The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
By Administrative Complaint dated June 9, 1989, Petitioner alleged that Respondent was certified by Petitioner on December 31, 1970. The Administrative Complaint alleges that on October 22, 1989, Respondent unlawfully touched or struck Mary Ann Lanning and Denise Lanning against their will. The Administrative Complaint alleges that Respondent thereby violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B- 27.0011(4) (b), Florida
Administrative Code, in that Respondent failed to maintain the qualification established by Sections 943.13(4) and (7), Florida Statutes, which require that a law enforcement officer have good moral character.
By Election of Rights filed October 13, 1989, Respondent requested a formal hearing.
At the hearing, Petitioner called five witnesses and offered into evidence one exhibit, which was admitted. Respondent called two witnesses and offered into evidence no exhibits.
The transcript was filed on June 4, 1990. Each party filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.
Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol.
On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old.
Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife.
The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them.
In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained.
Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms.
When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door.
At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence.
The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated.
As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were.
An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian.
The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them.
Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m.
Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent.
Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon.
At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon.
At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun.
He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome.
When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now."
As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping.
Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch.
Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited.
In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well.
After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise.
Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state.
The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property.
Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer.
As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy.
The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character.
On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court.
In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Section 943.13(4), Florida Statutes, requires that a law enforcement officer not have pled guilty or nolo contendere to, or found guilty of, any felony or a misdemeanor involving perjury or a false statement, regardless of withholding of adjudication.
Section 943.13(7), Florida Statutes, requires that a law enforcement officer have good moral character.
Section 943.1395(5), Florida Statutes (1987), required the revocation of the certification of any law enforcement officer who was not in compliance with Sect ion 943.13(1)-(10)
Subsequent to the incident in question, Section 943.1395(6), Florida Statutes, was added and provides that the failure to maintain good moral character, which is defined by rule adopted after the incident in question, may result in revocation, suspension for not more than two years, probation for not more than two years, retraining, or reprimand.
Rule 11B-27.0011(4)(b), Florida Administrative Code, which is the rule referenced in the preceding paragraph, defines the failure to maintain good moral character as the perpetration of an act that would constitute one of several specified misdemeanors or criminal offenses, including Section 784.03, Florida Statutes.
Petitioner must prove the relevant allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)
Petitioner has applied Section 943.1395(6) to existing cases regardless when the subject incidents took place or the case was filed. Absent express legislative intent to the contrary, remedial law, which "confers or changes a remedy," is applied retroactively. St. John's Village I, Ltd. v. Department of State, 497 So. 2d 990, 993 (Fla. 5th DCA 1985 (citing City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961). Section 2, Chapter 88-51, Laws of Florida, added Section 943.1395(6), which allows for the imposition of penalties other than revocation in cases where the law enforcement officer has failed to maintain good moral character. Chapter 88-51 contains no language suggesting that the normal rules of statutory construction should not be applied to Section 943.1395(6). Therefore, Section 943.1395(6) should be applied retroactively, as Petitioner has applied it.
However, Petitioner may not apply retroactively the changes to Section 943.1395 that resulted in expanding the range of behavior that violates the definition of "good moral character." In October, 1987, the criminal acts that were grounds for discipline did not include the acts involved in this case, and "good moral character" lacked the statutory or regulatory definition that Petitioner seeks to apply in this case. Absent express legislative intent to the contrary, substantive law, which creates a "new obligation or duty," is applied prospectively. St. John's Village I Ltd. v. Department of State, 497 So. 2d 990, 992 (Fla. 5th DCA 1986) (citing Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985).
The key question therefore is whether Respondent's actions constituted a failure to maintain good moral character. Petitioner cites to two cases that provide suitable definitions for this case. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), the court stated:
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.
In Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978), the court stated that a finding of a lack of "good moral character" is not restricted to "moral turpitude," but
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.
Petitioner has proven to the requisite degree that Respondent failed to maintain good moral character. Petitioner has sought revocation. By his own admission, Respondent became unglued and demonstrated an utter lack of judgment in his altercation with Mrs. Lanning. The gravity of this situation is exacerbated by the fact that Respondent was still in his uniform and, even worse, still armed during the episode where he completely lost his composure.
On the other hand, it was impossible to credit Mrs. Lanning's testimony concerning the extent of Respondent's actions and her resulting injuries.
Based on the facts, as found above, the proof of Respondent's failure to maintain good moral character is based on his loss of composure, while armed and in uniform, and not on acts of "violent misconduct," as Petitioner argues in its Proposed Recommended Order. He unlawfully touched Mrs. Lanning and her daughter, and the contact represents significant evidence of the lack of judgment that is the basis of the finding of failure to maintain good moral character. However, the unlawful touching, although highly improper under the circumstances, was not violent and did not injure Mrs. Lanning, as she claimed. The facts proven do not warrant revocation.
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years.
RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990.
Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance.
9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance.
21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance.
Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact.
unsupported by the greater weight of the evidence.
II, a-b: adopted or adopted in substance.
II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance.
II, d: adopted.
II, e: rejected as subordinate.
II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house.
II, l: adopted in substance except that complaint filed against Mrs.
Lanning is rejected as irrelevant.
Joseph S. White
Attorney Douglas E. Whitney Maitland Springs Office Park
James T. Moore Commissioner
