STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4115

)

DENNIS G. HAIR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 17, 1997, in Bradenton, Florida, before Carolyn Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Amy J. Bardill

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: Dennis G. Hair, Pro Se

1910 49th Avenue East Bradenton, Florida 34203

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint (Complaint) dated October 31, 1994, Petitioner, the Criminal Justice Standards and Training Commission, charged Respondent, Dennis G. Hair, with violating the provisions of Sections 943.1395(6) and (7), and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code. The Complaint alleges 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.” Specifically, it is alleged that on two separate occasions, Respondent “did... unlawfully, actually, and intentionally touch or strike Jennifer Devers” against her will or ”did intentionally cause bodily harm to that individual.”

Respondent timely filed an Election of Rights form challenging the allegations set forth in the Complaint and requested a formal hearing. By letter dated August 26, 1996, the case was referred to the Division of Administrative Hearings which noticed and conducted the formal hearing.

At hearing, Petitioner presented the testimony of five witnesses: Jennifer Devers, Garrett McKever, Gail Adams, Daryl Shu, and Kenneth Bright. Respondent presented no witnesses. The parties offered and had five joint exhibits admitted into evidence.

A transcript of the proceeding was filed on February 7,

1997. Petitioner submitted proposed findings of fact and conclusions of law. Respondent submitted written arguments which were considered in light of the record.

FINDINGS OF FACT

1. Dennis G. Hair, Respondent, was certified by the Criminal Justice Standards and Training Commission (Commission) on December 1, 1979, and issued Law Enforcement Certificate Number 90968.

2. At all times relevant to this proceeding Respondent was employed as a sergeant with the Palmetto Police Department.

3. Jennifer Devers first met Respondent while she was employed at a Mobile Station that was frequented by Respondent. Over time Ms. Devers and Respondent developed a casual platonic relationship.

4. Both Ms. Devers and Respondent often made sexually oriented jokes with each other. However, there was never any sexual contact between them, nor did Ms. Dever indicate that there ever would be such contact. To the contrary, Ms. Devers specifically told Respondent there never would be any sexual contact between them.

5. In or about April 1994, Ms. Devers was dating an officer employed by the Palmetto Police Department. About this time Respondent began paying an inordinate amount of attention to the daily personal business of Ms. Devers, by parking near her

   apartment and observing people who visited her apartment, noting their arrival and departure times.

6. In or about April 1994, Respondent’s conversations with Ms. Devers started to increase in vulgarity. Moreover, Respondent’s comments implied that he believed Ms. Dever was sexually involved with another police officer and, consequently, she should be available to Respondent.

7. In or about April or May 1994, when Ms. Devers was working at the Mobile Station and Respondent was at the station, Ms. Devers received a phone call from a third party with whom she was romantically involved. During the telephone conversation, the person terminated his relationship with Ms. Dever. After the call was completed, Ms. Devers was very distraught. Respondent hugged Ms. Devers in what she perceived to be an effort to comfort her. This hug was with her permission.

8. During the hug, Respondent lowered his hands on Ms. Devers body and began to rub his body against her in a sexual manner. This part of the embrace was offensive to Ms. Devers and was done without her permission. However, at the time, due to her emotional state about the break-up of her romantic relationship with a third party, she did not focus on Respondent’s conduct and said nothing to him about it.

9. In or about April or May 1994, while dressed in his police uniform and on duty, Respondent, entered the Mobil Station when Ms. Devers was there working. Respondent and Ms. Devers had

   a conversation during which Respondent asked Ms. Devers if her breasts were real. When she responded affirmatively, Respondent told her to prove it. Ms. Devers said no in an emphatic manner. Almost immediately thereafter, Respondent “grabbed” Ms. Devers’ breasts and squeezed them. This touching by Respondent was unexpected, unwelcome, and offensive to Ms. Devers, and was done without her permission.

10. Respondent’s actions surprised and shocked Ms. Devers, and were a source of distress for her. Ms. Devers did not attempt to defend herself or confront Respondent about his touching and squeezing her breasts. Because Respondent was in uniform and on duty of the time of the incident, Ms. Devers felt especially intimidated and afraid.

11. Initially, Ms. Devers was reluctant to officially report the touching incident involving Respondent because she was afraid that no one would believe her. Moreover, Ms. Devers was afraid that she might lose her job because Respondent was a friend of her boss and that Respondent might retaliate against her.

12. Approximately two or three weeks after the incident involving Respondent’s touching Ms. Devers' breasts, she confided in two people, both officers with the Palmetto Police Department, on separate occasions and asked for their advice on how to proceed. Shortly after discussing the matter with these

    officers, on or about May 14, 1994, Ms. Devers filed a police report on this incident.

13. Kenneth Bright, then a detective with the Palmetto Police Department, was assigned to investigate the incident involving Respondent and Ms. Devers. During the initial stage of the investigation, Ms. Devers agreed with Detective Bright to have a conversation with Respondent, while using a recording device, in an effort to verify that the second touching incident had occurred.

14. On or about May 24, 1994, Ms. Dever went to an area grocery store where Respondent was working a security detail. At that time, unbeknown to Respondent, Ms. Dever had a recording device on her person. At one point during the conversation, Respondent admitted that he touched her breasts and further stated that he would grab her breasts anytime he thought he would not be slapped for doing so.

15. The State Attorney's Office filed criminal charges against Respondent for two counts of simple battery, based on the two incidents involving Respondent’s touching Ms. Devers. Respondent pled nolo contendere to both counts of simple battery.

    CONCLUSIONS OF LAW

    
    

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

17. Section 943.1395, Florida Statutes (1993) authorizes

    Petitioner, the Commission to take disciplinary action against the certificate of law enforcement officers for the offenses enumerated therein. Pursuant to Section 943.1395 (7), Florida Statutes (1993), the Commission is authorized to revoke the certification of any officer who has not maintained good moral character as required by Section 943.13(7).

18. In the Administrative Complaint, the Commission charges the Respondent with two counts of “unlawfully, actually, and intentionally” touching or striking Jennifer Devers against her will. By such acts, Petitioner alleges that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (1993), which require that a law enforcement officer in the state of Florida to have a good moral character.

19. The Commission has the burden of proof in this proceeding and must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington 510 So.2d 292 (Fla. 1987).

20. Examples of an officer's failure to maintain good moral character are enumerated in Rule 11B-27.0011(4), Florida Administrative Code (1993). Acts or conduct by the officer which evidence such failure include those which significantly interfere with the rights of others; show disrespect of state or federal law; or cause substantial doubts concerning the officer's moral fitness.

21. In Zemour, Inc. v. Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied such license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are dissimilar to the ones in the instant case, the court’s definition of moral character is significant. Zemour defines moral character as follows:

    Moral character as used in this 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 p. 1105.

22. The Commission has established by clear and convincing evidence that Respondent touched Ms. Devers without her permission and against her will on two separate occasions.

23. Respondent's conduct interfered with Ms. Dever's rights; showed his disrespect and disregard of state laws; and caused substantial doubts concerning Respondent's moral fitness. As a law enforcement officer, Respondent serves in a position of great public trust. Furthermore, when this is considered in light of Zemour, Respondent's conduct falls short of what is generally acceptable conduct for those in positions of trust. Based on the definition set forth in Zemour, one in such a position must not only distinguish right from wrong, but must also act in a manner consistent with that knowledge.

24. The acts committed by Respondent evidence his lack of and failure to maintain good moral character. Having failed to maintain “good moral character” as prescribed by Section 943.13(7), Florida Statutes, Respondent no longer meets the criteria for retaining a law enforcement certificate.

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 revoking the law enforcement certificate of Respondent, Dennis G. Hair.

DONE and ENTERED this 1st day of April, 1997, in Tallahassee, Florida.

CAROLYN HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997.

COPIES FURNISHED:

Amy J. Bardill

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Dennis G. Hair, Pro Se 1910 49th Avenue East Bradenton, Florida 34203

Michael Ramage General Counsel

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

A. Leon Lowry, II, Director Division of Criminal Justice,

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004115

Orders for Case No: 96-004115