STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2356

)

RANDY J. MILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Kissimmee, Florida, on August 20, 1996.

APPEARANCES

For Petitioner: Amy J. Bardill

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 29, 1994, Petitioner alleged that Respondent, on or about January 11, 1993, distributed two obscene photographs depicting naked male genitalia. Petitioner alleged that Respondent violated Sections 943.13(7) and 943.1395(6) and (7), Florida Statutes, which requires that a law enforcement officer maintain good moral character.

Respondent demanded a formal hearing.

Respondent did not appear at the final hearing. Petitioner called six witnesses and offered into evidence three exhibits, which were all admitted into evidence.

The court reported filed the transcript on September 4, 1996.

FINDINGS OF FACT

1. At all material times, Respondent was certified as a law enforcement officer, holding certificate number 102208. He was certified on August 5, 1985.

   
   

2. Respondent was employed as a deputy sheriff with the Osceola County Sheriff's Office at the time of this incident.

   
   

3. On January 11, 1993, a woman parked her car at a convenience store. While she was in the store purchasing some items, Respondent placed a Polaroid photograph of his naked erect penis on the ground beside the driver's door of the car. The female was unknown to Respondent. She was shocked and disgusted by her discovery of the photograph.

   
   

4. After being given his Miranda rights, Respondent admitted to an investigating detective that he had placed the photograph beside the car. He claimed that he had been under a lot of stress in his personal life at the time.

   
   

5. Respondent later pleaded no contest to one count of a misdemeanor offense of distributing obscene material. The court withhold adjudication and placed him on probation for one year.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

7. Section 943.13(7) requires that a law enforcement officer maintain "good moral character . . .." Section 943.1395(7) provides that, upon a finding by Petitioner that a certified officer "has not maintained good moral character," Petitioner may enter an order revoking the certificate, suspending the certificate for not more than two years, placing the certificate on probation for not more than two years, requiring successful completion of additional training, and reprimanding the certificate.

   
   

8. Rule 11B-27.0011(4)(b) provides that an act that would constitute a violation of Section 847.011(1) is a failure to maintain good moral character. Section 847.011(1) makes it a misdemeanor to distribute obscene material.

   
   

9. Rule 11B-27.005(5)(b) provides penalty ranges for certain misdemeanors. Although the rule omits mention of the distribution of obscene material, the rule provides that prostitution or lewdness calls for revocation and indecent exposure calls for suspension and probation with counseling.

   
   

10. Rule 11B-27.005(6) sets forth various aggravating and mitigating circumstances, such as whether the officer used his official authority to facilitate the misconduct, whether the misconduct was performed while the officer was on duty, the officer's employment status at the time, the past disciplinary history of the officer, the severity of the misconduct, the danger to the public, the length of time since the misconduct, the officer's attempt at rehabilitation, any pecuniary action, and the nature of any action taken by the employer of the officer.

11. It is difficult to determine whether the act committed by Respondent more closely resembles lewdness, for which the recommended penalty is revocation, or indecent exposure, for which the recommended penalty is suspension and probation with counseling. The court withheld adjudication and placed Respondent on probation for a year. Most of the factors militate in favor of mitigating the penalty, but Respondent failed to appear at the hearing, so he could not present evidence of any effort to rehabilitate himself.

RECOMMENDATION

It is RECOMMENDED

That the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificate for two years and placing it on probation for a period of eight years, starting with the end of the suspension. The conditions of probation are that, first, Respondent produce satisfactory evidence from a licensed health care professional reasonably satisfactory to Petitioner that he is not likely to repeat this behavior and, second, that he continue counseling at the frequency and for the period of time recommended by the licensed health care professional.

ENTERED on October 10, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996.

COPIES FURNISHED:

Amy J. Bardill

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Randy J. Miller 1262 N 550 W

Kokomo, Indiana 46901

A. Leon Lowry, II, Director

Florida Department of Law Enforcement Division of Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, 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 within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2356

)

RANDY J. MILLER, )

)

Respondent. )

)

ORDER GRANTING MOTION FOR CLARIFICATION

On October 17, 1996, Petitioner filed a Motion for Clarification.

Accordingly, it is

ORDERED that the Recommended Order finds that Respoindent failed to maintain good moral character.

DONE AND ORDERED this 28th day of October, 1996, at Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 28th day of October, 1996.

COPIES FURNISHED:

Amy J. Bardill

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Randy J. Miller 1262 N 550 W

Kokomo, Indiana 46901

A. Leon Lowry, II, Director

Florida Department of Law Enforcement Division of Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 96-002356

Orders for Case No: 96-002356