STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0210

)

ERNEST L. HOWEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 20, 1991, in West Palm Beach, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John P. Booth, Esquire

Assistant General Counsel Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Ernest L. Howey, pro se

5016 South Dixie Highway

West Palm Beach, Florida 33405 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's certification as a law enforcement officer should be revoked or otherwise disciplined for the reasons set forth in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

On December 5, 1990, the Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Amended Administrative Complaint against the Respondent, Ernest L. Howey, seeking to discipline the Respondent's law enforcement officer certification. The Amended Administrative Complaint alleges that the Respondent failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes (1989), which requires a law enforcement officer to have good moral character. Petitioner seeks to discipline Respondent's law enforcement officer certification pursuant to Section 943.1395(5)&(6), Florida Statutes (1989).

Respondent timely requested a hearing on the allegations pursuant to Section 120.57, Florida Statues. The case was referred to the Division of Administrative Hearing which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of two witnesses: Frank Bedingfield, the regional office supervisor for the West Palm Beach region for the Division of Licensing, Florida Department of State; and Richard Hoffman, a staff sergeant with the Ft. Lauderdale Police Department. Petitioner offered 20 exhibits into evidence, all of which were accepted.

The hearsay contents of Petitioner's exhibits 2-19 have been noted and considered in accordance with the provisions of Section 120.58(1)(a), Florida Statutes.

Respondent testified on his own behalf and offered 10 exhibits into evidence. All of those exhibits were accepted except Respondent's Exhibit 1 which was a copy of the Webster's dictionary definition of "range". Official recognition was taken of this definition. After Respondent presented his case, Petitioner recalled Frank Bedingfield in rebuttal.

During the hearing, Respondent contended that the individuals that he had allegedly certified without properly testing were able to obtain certification from a subsequent inspector. To support this contention, Respondent sought to introduce Certificates of Firearms Proficiency which were certified by a subsequent instructor. At the hearing, copies of those Certificates were not available. The parties agreed that those Certificates could be submitted as late-filed exhibits within ten days of the conclusion of the hearing. Counsel for Petitioner transmitted those Certificates on June 26, 1991 and they are hereby accepted and made a part of the record in this case.

At the hearing, Respondent requested an opportunity to demonstrate a training device which he claims to have used to evaluate the applicants for the Class G licenses involved in this case. Respondent's request would have required the discharge of a firearm with "non-live" ammunition. In view of the setting in which the hearing took place, Respondent's request was denied. However, Respondent was granted an opportunity to fully explain his training procedures.

At Petitioner's request, official recognition has been taken of Rule llB-27.001(4), Florida Administrative Code, Sections 493.306 and 493.319, Florida Statutes (1989) and Chapter 86-193, Laws of Florida.

A transcript of the proceeding has been filed. At the conclusion of the hearing, the parties agreed that proposed findings of fact and conclusions of law would be due within twenty-one days of the filing of the transcript. Petitioner has timely filed a Proposed Recommend Order. A ruling on each of Petitioner's proposed findings of fact is included in the Appendix attached to this Recommended Order. No post-hearing submittal has been received from the Respondent. On June 27, 1991, a letter was received from Emory O. Williams, Jr., an attorney in West Palm Beach, Florida. Apparently, Respondent contacted this attorney and requested his assistance in the preparation of a Proposed Order and/or recommended penalty in this case. Attached to the letter was a draft order which set forth as a proposed penalty in this case a suspension of Respondent's certification for a period of three years. The draft order did not contain any proposed findings of fact or conclusions of law. Therefore, no rulings are made with respect to this submittal.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. Respondent, Ernest L. Howey ("Howey"), was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission ("Commission") on June 4, 1970 having been issued Certificate No. 763. At all times material to the allegations of the Amended Administrative Complaint, Respondent maintained that certification.

   
   

2. Respondent was employed as police officer with the Ft. Lauderdale Police Department from January 9, 1984 to February 8, 1989. Respondent was terminated from the Ft. Lauderdale Police Department on February 8, 1989 for conduct prejudicial to the good order of the Department. The grounds for his termination were essentially the same as those alleged in the Amended Administrative Complaint in this proceeding.

   
   

3. Prior to beginning work with the Ft. Lauderdale Police Department, Respondent was employed by the Sunrise Police Department. While he was with the Sunrise Police Department, Respondent helped build that Department's shooting range and served as an assistant range officer. While serving in this capacity, Respondent held a NRA instructor's certificate and a

   Class "K" License from the Florida Department of State, Division of Licensing.

   
   

4. While he was employed with the Sunrise Police Department, Respondent started a private security company called Arm Security and Investigations, Inc. (the "Company"). The Company was and is licensed by the Department of State as a private security company. At all pertinent times, Respondent was the president of the Company and he and his wife were the sole shareholders.

   
   

5. In order for the security guards employed by the Company to carry a gun while they were on duty, they were required to have a Class "G" statewide firearm license issued by the Florida Department of State, Division of Licensing.

   
   

6. To qualify for a Class "G" license, an applicant was required to meet the requirements of Section 493.306(7)(a), Florida Statutes which provides that an applicant must

   
   

   . . .satisfy minimum training criteria for firearms established by rule of the Department [of State], which training criteria may include, but are not limited to, sixteen hours of range and classroom training taught and administered by a firearms instructor who has been licensed by the Department.

   
   

   Prior to October 1, 1986, the statutory training criteria called for eight hours of classroom and range training. See, Chapter 86-193, Laws of Florida (increasing the training requirements to sixteen hours.) At all times pertinent to this proceeding, the administrative criteria implemented by the Department of State required at least six hours of classroom instruction and three hours of firing range instruction under a licensed instructor.

   
   

7. To qualify as a firearms instructor for Class "G" license applicants, an instructor had to obtain a Class "K" license. At all times pertinent to this proceeding, Respondent possessed a Class "K" license.

   
   

8. On or about March 17, 1987, after receiving a complaint from a former employee of Respondent's corporation, the Department of State, Division of Licensing began an investigation into charges of various violations of Chapter 493, Florida Statutes, by Respondent and his corporation.

   
   

9. The investigation revealed that during 1985, 1986, and 1987, Respondent, in his capacity as a licensed firearms instructor, certified on the Class "G" license applications for seven of his employees that the employees had received the requisite classroom and firing range training necessary for the license. Each of the certifications executed by Respondent contained the following statement: III certify that the above- named person has satisfactorily completed the prescribed training as set forth in Section 1C-3.27, Rules of the Department of State." In actuality, none of those employees received the training required under the applicable statutes and rules. All seven of the employees admitted that they had not received the full amount of classroom instruction shown on the license application and that they had not received firing range instruction under Respondent's supervision as reflected in the applications. Six of the employees indicated in affidavits that they had never received training on a firing range under Respondent's supervision. The seventh employee indicated that all of his training was conducted in the office of Arm Security.

   
   

10. None of the seven employees certified by Respondent received a waiver or exemption from the prescribed training requirements.

    
    

11. Respondent contends that he did not certify any applicant whom he did not believe was qualified. Respondent administered a written NRA test to all applicants and each of them passed. Respondent admits that many of the applicants were not trained on the firing range. However, he contends that he did train them in his office using "non-live" ammunition at reduced, close range targets. The ammunition used included a primer, a cartridge and a casing or head made out of wood with a hole in the back of it. There was no powder in the cartridge. Respondent contends that this training procedure enabled him to adequately assess the capabilities of the applicants. However, Respondent never inquired of the Department of State whether this indoor method could serve as a substitute for training on the firing range. In fact, it appears that Respondent was aware or at least strongly suspected that the applicable statute and rules required the shooting of live ammunition by the applicant on a firing range. Moreover, at least two of the applicants denied ever shooting a firearm in the presence of the Respondent. Thus, it is clear that some of the applicants did not even receive this indoor training.

12. As a result of the Department of State's investigation, Respondent was fined $7,000 and his Class "K" Firearm Instructor License was revoked.

    
    

13. At least part of the motivation for Respondent's certification of the seven applicants was to enable them to begin functioning immediately as armed security guards for Respondent's company.

    
    

14. After the Department of State discovered the falsified applications, the Class "G" licenses issued to the employees were revoked. At least six of the employees filed new applications and were able to satisfactorily complete the prescribed training under a new instructor on the first attempt.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (1987).

    
    

16. In a disciplinary proceeding such as this case, the burden is upon the regulatory agency to establish by clear and convincing evidence the facts upon which its allegations of misconduct are based. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

17. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida. The Amended Administrative Complaint alleges that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which provides that an officer must have good moral character.

    
    

18. Section 943.1395(5), Florida Statutes, empowers the Commission to revoke the certificate of any officer who does not maintain the qualifications set forth in Section 943.13(1)-(10), Florida Statutes. Section 943.1395(6) establishes certain lesser penalties that may be applied when a certified officer has not maintained good moral character.

    
    

19. The term "good moral character" in Section 943 13(7), Florida Statutes is not defined by statute. The rules adopted by the Commission provide some guidance. Pertinent to this case, Rule llB-27.0011(4)(b), Florida Administrative Code, provides:

    
    

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

    
    

    * * *

    
    

    (c) The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime....

    
    

20. This rule was not adopted until 1988, which was after the conduct that gave rise to the allegations in the Amended Administrative Complaint. However, the statutory requirement that an officer maintain a good moral character preceded the misconduct alleged in this case. The Commission's subsequently adopted rule interpreting the statutory phrase, while not necessarily binding in this case, provides a useful basis for analyzing the Respondent's conduct. Indeed, the rule adopted by Commission is consistent with the interpretation given by the courts to similar language in other licensing statutes. For example, in Zemour, Inc. v. Division of Beverages, 347 So. 2d 1102 (Fla. 1st DCA 1977), the Court was required to address a requirement of good moral character in the context of a beverage licensing case. The Court held:

    
    

    Moral character, as used in the 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. Id. at 1105.

    
    

21. In The Florida Board of Bar Examiners re: G.W.L. 364 So. 2d 454 (Fla. 1978), the Florida Supreme Court, in a case involving admission to the Bar, stated that an appropriate definition of the phrase lack of good moral character, . . .

    
    

    [R]equires 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. Id. at 458.

    
    

22. "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.

    
    

23. The evidence in this case established that Respondent knowingly and intentionally falsified the Class G firearms license applications of his employees so that they could obtain their licenses and begin working for him as armed security guards. While Respondent contends that he had satisfied himself that each of the individuals was sufficiently qualified to obtain a license, it is clear that the applicants had not completed the prescribed classroom work nor had they received the necessary firing range training. The legislature has not granted firearms instructors discretion to determine how much training is necessary. Respondent has violated Section 493.319(1)(a) and (f) Florida Statutes by certifying that his employees had received the required instructions necessary for a Class G firearms license. In doing so, Respondent knowingly exposed the public to the risk of an armed security guard with less than the minimum assurance of safety and training deemed necessary by the legislature. Respondent has placed the interests of his business ahead of the requirements of the law. As such, it is clear that Respondent has failed to maintain good moral character as required by Section 943.13(7) Florida Statutes.

    
    

24. The position of a law enforcement officer is one of great public trust. The public has the right to expect that those who enforce the law will themselves obey the law. City of Palm Bay v. Baumman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

25. Respondent's contention that he provided substitute training to the applicants with non-live ammunition indoors does not provide a basis for mitigation. First, it is clear that some of the applicants did not even receive the substitute indoor training described by Respondent. Furthermore, it is clear that Respondent knew, or at least suspected, that such training did not meet the requirements of the applicable statutes and rules. Respondent's claim that he was satisfied that each of the applicants could meet the statutory requirements does not overcome his deliberate and knowing disregard for the law.

    
    

26. Respondent's blatant disregard for the statutory requirements and his intentional falsification of the gun permit applications demonstrates a lack of the good moral character expected and required of law enforcement officers and justifies the revocation of his certification.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding the Respondent guilty of the allegations contained in the Amended Administrative Complaint and revoking his certification as a law enforcement officer.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1991.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1991.

APPENDIX

The Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or in the Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact

3 Adopted in substance in Findings of Fact

3 and 4.

1. Adopted in substance in Findings of Fact 5-9.

2. Adopted in substance in Findings of Fact 6.

3. Adopted in substance in Findings of Fact 7.

4. Adopted in substance in Findings of Fact 8.

5. Adopted in substance in Findings of Fact 9.

6. Adopted in substance in Findings of Fact 9.

7. Adopted in substance in Findings of Fact 10.

8. Rejected as unnecessary.

9. Subordinate to Findings of Fact 11.

10. Rejected as unnecessary.

11. The first sentence is adopted in substance in Findings of Fact 12. The second sentence is rejected as unnecessary and irrelevant.

12. Adopted in substance in Findings of Fact 13.

COPIES FURNISHED:

John F. Booth, Esquire Assistant General Counsel Florida Department of

Law Enforcement

P. O. Box 1489 Tallahassee, Florida 32302

Ernest L. Howey

5016 South Dixie Highway

West Palm Beach, Florida 33405

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000210

Orders for Case No: 91-000210