STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0587

)

JOHN M. ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 16, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dawn Whitehurst, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Gene "Hal" Johnson, Esquire

General Counsel

Florida Police Benevolent Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in Administrative Complaint, as amended?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On August 5, 1991, the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") issued an Administrative Complaint alleging that Respondent was guilty of unlawful conduct that warranted the imposition of an appropriate penalty. Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On January 31, 1992, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

   The hearing was originally scheduled for June 23, 1992, but was twice continued at the request of Respondent. The hearing was ultimately held on February 16, 1993.

   
   

   At the outset of the hearing, the Hearing Officer granted the Commission's previously filed, unopposed motion requesting leave to amend the Administrative Complaint. The Administrative Complaint, as amended (hereinafter referred to as the "Amended Administrative Complaint"), specifically numbered paragraph 2. thereof, alleged that Respondent had engaged in the following conduct:

   
   

   2.(a) On or between February 19, 1990 and April 15, 1990, Respondent, John M. Roberts, did unlawfully exhibit a firearm, a dangerous weapon, in a rude, careless, angry or threatening manner in the presence of one or more persons, not i[n] necessary self defense.

   1. On or between April 16, 1990 and April 20, 1990, Respondent, John M. Roberts, did unlawfully exhibit a firearm, a dangerous weapon, in a rude, careless, angry or threatening manner in the presence of one or more persons, not in necessary self defense.

   2. On or about April 25, 1990, the Respondent, John M. Roberts, did then unlawfully exhibit a firearm, a dangerous weapon, in a rude, careless, angry or threatening manner in the presence of one or more persons, not in necessary self defense.

According to the Amended Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B- 27.0011(4)(b) and/or (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character."

A total of six witnesses, all of whom were employees of the Florida Highway Patrol, testified at the hearing. In addition to the testimony of these witnesses, a total of ten exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 9) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. At Respondent's request, the deadline was subsequently extended to March 26, 1993. On March 26, 1993, the Commission and Respondent each filed a proposed recommended order.

The parties' proposed recommended orders contain what are labelled as "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01.

   
   

2. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant.

   
   

3. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision.

   
   

4. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above.

   
   

5. Only twice during the period of his employment has he been disciplined-

   - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant.

   
   

6. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud.

   
   

7. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass.

   
   

8. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices.

   
   

9. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them.

   
   

10. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent.

11. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud.

    
    

12. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife.

    
    

13. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support.

    
    

14. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area.

    
    

15. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times.

    
    

16. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation.

    
    

17. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody.

    
    

18. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster.

    
    

19. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the

    revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt.

    
    

20. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/

    
    

21. On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster.

    
    

22. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon.

    
    

23. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed.

    
    

24. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.

    
    

    CONCLUSIONS OF LAW

    
    

25. The instant Amended Administrative Complaint alleges that on or between February 19, 1990, and April 15, 1990, again on or between April 16, 1990, and April 20, 1990, and once again on or about April 25, 1990, Respondent "did then and there have a dangerous weapon, to wit: a handgun, and in the presence of one or more persons did exhibit the weapon in a rude, careless, angry, or threatening manner, not in necessary self-defense" The Amended Administrative Complaint further charges that, in engaging in such conduct, Respondent violated "the provisions of Section 943.1395(5),(6), Florida Statutes [subsequently renumbered Section 943.1395(6),(7), Florida Statutes, and amended by Chapter 92-131, Laws of Florida] and Rule 11B-27.0011(4)(b) and/or (c),

    Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character."

    
    

26. At the time of the filing of the Amended Administrative Complaint and at all material times prior thereto, Section 943.1395(5), Florida Statutes, provided that the Commission "shall revoke the certification of any [law enforcement] officer who is not in compliance with the provisions of s. 943.13(1)-(10)." Subsection (6) of Section 943.1395, Florida Statutes, authorized the imposition of certain lesser penalties in appropriate cases.

    
    

27. Section 943.13(7), Florida Statutes, provided, as it still does, that any person employed or appointed as a law enforcement officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

    
    

28. "Moral character" is

    
    

    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.

    
    

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "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." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).

    
    

29. The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides in pertinent part as follows:

    
    

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

    1. 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 . . . 790.10, . . . F.S.; or

    2. 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.

    
    

30. At all times material to the instant case, Section 790.10, Florida Statutes, has provided in pertinent part as follows:

    
    

    If any person having or carrying any . . . firearm . . . shall in the presence of one or more persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree . . . .

    
    

31. In those cases where revocation or suspension of a law enforcement officer's certification is sought based on his alleged failure to maintain "good moral character," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation,

    592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

32. Where the discipline does not involve the loss of certification, the officer's lack of "good moral character" need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

33. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Kinney

    v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

34. To the extent that Section 943.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified law enforcement officer "it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee."

    Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

35. An examination of the record in the instant case reveals that there is clear and convincing evidence supporting the allegations made against Respondent in the Amended Administrative Complaint.

    
    

36. By engaging in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, which the evidence clearly and convincingly establishes he did, Respondent violated Section 790.10, Florida Statutes, and thereby failed to maintain "good moral character," within the meaning of Section 943.13(7), Florida Statutes. Accordingly, the taking of disciplinary action against him pursuant to Section 943.1395, Florida Statutes, is warranted.

37. At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized the Commission to revoke the certification of a law enforcement officer who has failed to maintain "good moral character" or to impose one or more of the following less severe penalties: suspension of the officer's certification for a period not exceeding two years; placement of the officer on probationary status for a period not exceeding two years, subject to terms and conditions imposed by the Commission; requiring the officer to successfully complete any basic recruit, advanced, or career development training deemed appropriate by the Commission; and the issuance of a reprimand.

    
    

38. Section 943.1395(8)(d), Florida Statutes, mandates that, in determining which of these penalties should be imposed, the hearing officer shall

    
    

    1. Adhere to the disciplinary guidelines and penalties set forth in . . . the rules adopted by the [C]ommission for the type of offense committed.

    2. Specify in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

       
       

       Section 943.1395(8)(d), Florida Statutes, further provides that "[a]ny deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify aggravation or mitigation of the penalty [and that such deviation] must be explained in writing by the hearing officer."

       
       

39. The Commission's "disciplinary guidelines and [prescribed] penalties" are found in Rule 11B-27.005, Florida Administrative Code, which provides in pertinent part as follows:

    
    

    1. The Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated section 943.13(7),

       F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties which will be imposed for particular violations of section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in paragraph (4), herein. The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of section 943.13(7), F.S., will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

    2. When the Commission finds that a

       certified officer has committed an act which violates section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines: . . .

       (b) For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses as described in

       11B-27.0011(4)(b), F.A.C., but where there was not a violation of section 943.13(4), F.S., 7/ the action of the Commission shall be to

       impose a penalty ranging from probation to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following: . . .

       5. Reckless Display, Firearm (790, F.S.)- Probation w/Training . . .

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by evidence presented . . . to a hearing officer if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following aggravating or mitigating circumstances:

       1. Whether the officer used his or her official authority to facilitate the misconduct;

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

       3. The officer's employment status at the time of the final hearing before the Commission;

       4. The recommendations of character or employment references;

       5. The number of violations found by the Commission;

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

       8. The danger to the public;

       9. The length of time since the violation;

       10. The length of time the officer has been certified;

       11. The actual damage, physical or otherwise, caused by the misconduct;

       12. The deterrent effect of the penalty imposed;

       13. Any effort of rehabilitation by the officer;

       14. The effect of the penalty upon the officer's livelihood;

       15. The penalties imposed for other

           misconduct;

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

       17. The officer's compliance with the terms and conditions of any Commission-ordered probation;

       18. Whether the misconduct was motivated by unlawful discrimination;

       19. Prior Letter of Guidance;

       20. The effect of disciplinary or remedial action taken by the employing agency and/or recommendations of employing agency administrator.

    
    

40. Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the Hearing Officer is of the view that the Commission should discipline Respondent for his having failed to maintain "good moral character" by issuing him a written reprimand and placing him on probation for a period of two years, during which time he should be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. 8/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993.

STUART M. LERNER

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 27th day of April, 1993.

ENDNOTES

1/ At no time while in the office with Respondent on any of these occasions did either Hobbie or Sharpe draw or display any firearms.

2/ Respondent was in plain clothes.

3/ From Hobbie's vantage point, it did not appear that either Barken or his companion were armed.

4/ Although at no time did any of his fellow lieutenants advise Respondent that they were troubled by his careless handling of firearms, Respondent should have known, without being told, that his conduct was inappropriate and unacceptable, particularly in light of the firearms training he had been provided by the FHP.

5/ Sharpe telephoned Snow, who was based in Tallahassee, and asked him to come to Miami because there was something that he wanted to discuss with him that he felt uncomfortable discussing over the telephone. Snow travelled to Miami and met with Sharpe, who told him about the incident.

6/ The 1992 amendment to Section 943.1395, Florida Statutes, did not eliminate the Commission's authority to discipline certified law enforcement officers who fail to maintain "good moral character."

7/ Section 943.13(4), Florida Statutes, requires that the officer "[n]ot have been convicted of any felony or misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States." No violation of Section 943.13(4), Florida Statutes, is involved in the instant case.

8/ While Respondent committed multiple violations of Section 790.10, Florida Statutes, while on duty and using his FHP-issued service revolver, the existence of these aggravating circumstances are insufficient to warrant a harsher penalty than that recommended by the Hearing Officer given the presence of the following mitigating circumstances: these violations were committed over a relatively short period of time approximately three years ago; there have not been any subsequent violations, Respondent having apparently been successful in his efforts at rehabilitation; despite having committed these violations, Respondent is still employed by the FHP (having received a ten-day suspension) and is performing his duties exceedingly well; although Respondent's actions exposed himself and others to unnecessary risk of bodily harm, no actual damage, physical or otherwise, was caused by his misconduct; Respondent has been certified as a law enforcement officer for approximately 11 years; and aside from the ten-day suspension he received for the incidents that are the subject of the instant Amended Administrative Complaint, during time he has been a certified law enforcement officer he has been disciplined by his employing agency on only one other occasion, in 1983, when he received a written reprimand for the negligent operation of his agency vehicle.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0587

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:

The Commission's Proposed Findings of Fact

1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

5-6. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

7-34. Accepted and incorporated in substance.

Respondent's Proposed Findings of Fact

1-9. Accepted and incorporated in substance.

1. First and third sentences: Rejected because, even if true, they would not change the outcome of the instant case. Regardless of whether Respondent recalls or has an explanation for the conduct referred to in these proposed findings, Lieutenants Hobbie's and Sharpe's testimony, which the Hearing Officer has credited, clearly and convincingly establishes that he engaged in such conduct; Second sentence: To the extent that this proposed finding states that Respondent did not "intentionally point a weapon at his own head," it has been rejected because it is contrary to Lieutenants Hobbie's and Sharpe's testimony, which the Hearing Officer finds more credible than the testimony upon which this proposed finding is based.

   
   

2. Accepted and incorporated in substance.

   
   

3. First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding suggests that Respondent did not immediately "return the weapon to its holster," it has been rejected because it is contrary to Lieutenant Sharpe's testimony, which the Hearing Officer finds more credible than the testimony upon which this proposed finding is based.

   
   

4. Accepted and incorporated in substance.

   
   

5. First sentence: Rejected because, even if true, it would not change the outcome of the instant case. Regardless of whether Respondent recalls "the incident described by Hobbie," Hobbie's testimony, which the Hearing Officer has credited, clearly and convincingly establishes that the incident occurred; Second and third sentences: Rejected because they are contrary to the greater weight of the evidence.

15-16. Accepted and incorporated in substance.

17. First sentence: Rejected because, even if true, it would not change the outcome of the instant case. Regardless of whether Respondent "specifically recall[s] th[e] incident" referred to in this proposed finding, testimony and other evidence adduced at hearing which the Hearing Officer has credited, clearly and convincingly establish that the incident occurred; Second sentence: Rejected because it is contrary to the greater weight of the evidence.

18-20. Accepted and incorporated in substance.

21. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is contrary to Lieutenant Hobbie's

testimony, which the Hearing Officer finds more credible than the testimony upon which this proposed finding is based.

22-26. Accepted and incorporated in substance.

27. Rejected as a finding of fact because it is more in the nature of legal argument regarding the appropriate penalty to be imposed in the instant case.

COPIES FURNISHED:

Dawn Whitehurst, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Gene "Hal" Johnson, Esquire General Counsel

Florida Police Benevolent Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire Acting General Counsel Florida Department of Law

Enforcement

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 of time 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

vs DOAH CASE NUMBER: 92-0587

CJSTC CASE NUMBER: L-2818

JOHN M. ROBERTS,

Certificate Number: 08-82-002-01,

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant the Section 120.57(1)(b)(9), F.S., at a public hearing on October 29, 1993, in Ft. Myers, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was present and represented by counsel at the proceedings.

Upon a complete review of the transcript of the record of hearing held on February 16, 1993, in Miami, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated April 27, 1993, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed (which are attached here to and incorporated by reference) the Commission adopts the Hearing Officer's conclusions of law which are attached here to, adopted and fully incorporated herein by reference.

There is competent and substantial evidence to support the Commission's findings and conclusions.

The disposition of the above styled cause recommended by the Hearing Officer is hereby rejected for those reasons cited in Petitioner's Exceptions To Hearing Officer's Recommended Penalty which is hereby approved, adopted and incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

That Respondent's certification as a criminal justice officer be and hereby is suspended for the period of ten (10) days. Said suspension shall be deemed to have run concurrently with the ten (10) day suspension previously imposed by Respondent's employing agency as a result of the underlying facts of the cause upon which this Order is based.

Respondent shall be on probation for two (2) years from the date of filing of the Commission's Final Order in this matter. If, during said probation, Respondent shall violate any part of Chapter 943, F.S. or 11B, F.A.C. and shall thereafter at formal or informal hearing (whether within or beyond the dates of the probation period) be found guilty of said violation, the Commission shall revoke all of Respondent's certification and eligibility for certification as a criminal justice officer. Should Respondent's certification go inactive for any reason the probation period shall similarly go inactive and shall be reactivated for the remainder of the specified time upon reactivation of said certification. Respondent shall make himself available to answer any questions and produce any documents requested by the Commission or its staff during the probation period.

Respondent shall take and successfully pass a fitness for duty examination to be administered by the Respondent's employing agency immediately upon the filing of this order as well as one (1) year after the effective date of this order and once again upon the conclusion of the probation period.

Upon the termination of the probation period those agencies which employed the Respondent during said probation period shall file a written report with the Commission listing the existence or lack thereof of any violation of said probation.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 8th day of December, 1993.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

RODNEY DOSS, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to JOHN M. ROBERTS, 20915 SW 124th Avenue, Miami, Florida 33177, and to Gene "Hal" Johnson, 300 East Brevard Street, Tallahassee, Florida 32301 by

U.S. Mail on or before 5:00 P.M., this 8th day of December, 1993.

cc: Florida Department of Highway Safety and Motor Vehicle

Docket for Case No: 92-000587

Orders for Case No: 92-000587