STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1885

)

DARRIAN S. PAIGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on June 19, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Rodney Gaddy, Esq.

Florida Department of Law Enforcement

P.O. Box 1498

Tallahassee, Florida 32302-1489

For Respondent: Stephen W. Foxwell, Esq.

Florida Police Benevolent Association, Inc.

P.O. Box 11239 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, as a result of his plea of nolo contendere to the offense of theft, failed to maintain the good moral character requisite to continued certification as a law enforcement officer in violation of Section 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

On June 21, 1990, Petitioner issued an amended administrative complaint which charged Respondent with failure to maintain good moral character as a result of his nolo contendere plea to the charge of theft.

The administrative complaint seeks to impose disciplinary sanctions against Respondent's law enforcement certification as a result of his alleged failure to maintain good moral character; a failure which the complaint alleges is exemplified by Respondent's conduct of unlawfully obtaining and using a pair of shoes belonging to Shoe City, a commercial shoe outlet.

Respondent disputed the allegations of the administrative complaint and requested a formal hearing. On March 25, 1991, the matter was transferred to the Division Of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of one witness and two evidentiary exhibits. Respondent presented testimony of five witnesses and three evidentiary exhibits.

A transcript of the final hearing was filed with the Division of Administrative Hearings on July 2, 1991. Proposed findings of fact submitted by Respondent are addressed in the appendix to this recommended order. No proposed findings were timely submitted by Petitioner and no such proposed findings had been received by the undersigned from Petitioner at the time of preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Darrian S. Paige, holder of Certificate Number 14-85-502-

   04. He is certified as a correctional officer.

   
   

2. On May 26, 1989, Respondent and his wife, accompanied by their two year old son, were shopping in Macclenny, Florida. They entered a commercial establishment known as Shoe City.

   
   

3. A store clerk, Stacy Davis, observed Respondent enter Shoe City, and, in keeping with the custom of the store, observed that Respondent was wearing a worn pair of shoes similar to boat shoes or "dock siders."

   
   

4. After entering, Respondent went to the back of the store by himself. In a few moments he reappeared from the back of the store and walked toward the store's front entrance. Because he walked close to the store clerk's position

   behind an over- hanging counter, Davis was unable to see Respondent's feet as he walked toward the front entrance. However, as Respondent reached the store's front entrance, Davis was able to observe that Respondent was now wearing what appeared to her to be a pair of new shoes. She saw Respondent walk into a nearby Wal-Mart store.

   
   

5. Davis went to the back of the store where Respondent had been. She discovered a pair of old shoes in a shoe box and immediately went to another store employee and expressed her belief that Respondent had stolen a pair of new shoes.

   
   

6. Law enforcement personnel were contacted and two officers from the Baker County Sheriff's office soon arrived. Davis relayed her observations to the officers and went with them to Wal-Mart where she pointed out Respondent.

   
   

7. Respondent was wearing a new pair of shoes. Although Respondent informed the sheriff's deputies that he was a correctional officer and had not stolen any merchandise, he was arrested.

   
   

8. On June 22, 1989, County Court Judge D.L. Griffis withheld adjudication of guilt and imposition of sentence with regard to Respondent's nolo contendere plea to the charge of theft of the shoes. Respondent paid a total amount of approximately $25. This sum represented restitution for the shoes in question and payment of court costs.

9. At the final hearing, Respondent maintained he purchased the shoes he was wearing at the time of his arrest from a sidewalk vendor after he left Shoe City and before he entered the Wal-Mart Store. Respondent claimed that he put his old shoes in his automobile. Due to his demeanor while testifying, Respondent's testimony is not credited.

   
   

10. Respondent's wife testified at the final hearing and attempted to corroborate her husband's story regarding the sidewalk vendor encountered after the couple left Shoe City. Her demeanor while testifying, as well as conflicts between her and her husband's testimony, 1/ prevent her testimony from being credited.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 943.13(7), Florida Statutes, requires that any full-time or part-time certified law enforcement officer maintain good moral character.

    
    

13. Petitioner's rule policy defines failure to maintain good moral character to include petit theft (commission by a law enforcement officer of any act constituting a violation of Section 812.014(2)(d), Florida Statutes), regardless of whether the offense is prosecuted. Rule 11B-27.0011(4)(b), Florida Administrative Code.

    
    

14. The Administrative Complaint in this case specifically charges Respondent with failure to maintain good moral character as a result of unlawful action to obtain or attempt to obtain, on a permanent or temporary basis, the use and benefit of shoes belonging to Shoe City, a violation of Rule 11B- 27.0011(4)(b), Florida Administrative Code.

    
    

15. Petitioner bears the burden of proving by "clear and convincing evidence" the allegations of the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

    
    

16. Although Respondent's actions constitute a failure

    to maintain good moral character, mandatory revocation of certification appears required only for certain offenses set forth in Section 943.1395(5), Florida Statutes, none of which appear applicable to this case.

    
    

17. While revocation remains a possible disciplinary alternative, other alternatives available to Petitioner in lieu of revocation of certification are set forth in Section 943.1395(6)(a) and (b), Florida Statutes, and Rule 11B- 27.005(3)(b), Florida Administrative Code. These alternatives include suspension of certification or placement of certification on probationary status for a period not to exceed two years upon such terms and conditions as deemed appropriate by Petitioner.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes; suspending his Certification for a period of six months; and, upon completion of the period of suspension, placement of his Certification on probationary status for a period of two years upon such terms and conditions as may be deemed appropriate by Petitioner.

RECOMMENDED this 18th day of July, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

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 18th day of July, 1991.

ENDNOTES

1/ Conflict between Respondent's testimony and that of his wife involved the type of shoes that Respondent was wearing when he entered Shoe City. He testified that he wore tennis shoes, she testified that he wore leather shoes. Further, she could not describe the shoes that the alleged sidewalk vendor purportedly sold to Respondent. Notably, Respondent did not produce the old shoes at the final hearing.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1885

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings. None submitted.

Respondent's Proposed Findings.

1. Adopted in substance, not verbatim.

2. Adopted by reference.

3. Adopted in substance, not verbatim.

4.-7. Rejected, credibility, not supported by weight of the evidence.

1. Adopted in substance, not verbatim.

2. Rejected as to first and second sentences on basis of creditability and lack of support by weight of the evidence. Last sentence adopted to the extent of no conflict with testimony of Stacy Davis that she observed Respondent was wearing the shoes as he exited the store.

3. Rejected, argumentative, not relevant in view of Davis' testimony that she observed Respondent on May 26, 1989 in Shoe City when he attempted to steal a pair of shoes.

4. Rejected, creditability, hearsay as to the individual known as Kenny Roberts.

5. Rejected. Relevance.

6. Adopted by reference with exception of reference to "one hour's probation" inasmuch as this part of the finding is premised on Respondent's uncredited testimony.

14.-15. Adopted by reference.

16. Rejected, not supported by weight of the evidence.

COPIES FURNISHED:

Rodney Gaddy, Esq. Florida Department of Law

Enforcement

P.O. Box 1498

Tallahassee, FL 32302-1489

Stephen W. Foxwell, Esq. Florida Police Benevolent

Association, Inc.

P.O. Box 11239 Tallahassee, FL 32301

Jeffrey Long, Director Criminal Justice Standards

Training Commission

P.O. Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

P.O. Box 1489 Tallahassee, FL 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 consult with 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: 91-001885

Orders for Case No: 91-001885