STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5761

)

JOHN C. BUNN, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on April 9, 1997, in Jacksonville, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995),1 and Florida Administrative Code Rules 11B-27.0011(4)(b) and (c),2 by failing to maintain the qualifications established in Section 943.13(7) for good moral character; and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 30, 1994. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of three witnesses and submitted three exhibits for admission in evidence.

Respondent did not appear or otherwise submit evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the administrative hearing. Petitioner timely filed its proposed recommended order ("PRO") on April 15, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for certifying and regulating law enforcement officers in the state.

   Respondent is certified as a law enforcement officer pursuant to certificate number 139869 and is employed as a correctional officer by the Jacksonville Sheriff's Department (the "Department").

2. On January 23, 1994, Deputy J. W. Strickland observed Respondent in a parked vehicle in a vacant lot in an area of town known to the deputy as an area of drugs and prostitution. A white female was in the passenger seat of the vehicle.

3. Deputy Strickland approached the vehicle and asked Respondent what he was doing in the area. Respondent identified himself as a correctional officer. Deputy Strickland recognized

   the female as Ms. Sherry Reinstzell. Ms. Reinstzell has a criminal history of prostitution.

4. Deputy Strickland completed a field investigation report. Respondent and Ms. Reinstzell drove away. Deputy Strickland filed the field investigation report with the appropriate Department office.

5. Sgt. Donald Retzer, Internal Affairs, received a copy of the field investigation report. He opened an internal affairs investigation concerning Respondent's conduct.

6. Sgt. Retzer obtained a sworn statement from Respondent on January 28, 1994. Respondent stated under oath that he was just giving Ms. Reinstzell a ride to see a friend and did not know she was a prostitute. He denied any sexual activity with Ms. Reinstzell.

7. Later in the same interview on January 28, 1994, Sgt. Retzer confronted Respondent with additional evidence previously gathered by Sgt. Retzer, including a sworn statement by Ms. Reinstzell.

8. Respondent admitted that he picked Ms. Reinstzell up on Lane Avenue and negotiated a monetary arrangement for sex. Respondent then drove to an abandoned warehouse where Ms. Reinstzell performed fellatio on Respondent.

9. Respondent paid Ms. Reinstzell $20 for the oral sex. He then drove her to a house where she used the $20 as part of the purchase price for illegal drugs with Respondent's knowledge.

   CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

11. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that

    Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

12. Petitioner failed to show by clear and convincing evidence that Respondent did not comply with the requirements of Section 943.13(4). Section 943.1395(6) provides, in relevant part:

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4). . . .

    (emphasis supplied)

13. Respondent is not guilty of failing to comply with Section 943.13(4). Petitioner submitted no evidence that Respondent was prosecuted criminally, convicted of a felony or misdemeanor or entered any plea in connection with a criminal proceeding involving a false statement.

14. Petitioner did show by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Rule 11B-27.0011(4), and relevant case law. Florida Board of Bar Examiners Re: G.W.L.,

    364 So.2d 454 (Fla. 1978); Zemour, Inc. v. Division of Beverage,

    347 So.2d 1102 (Fla. 1st DCA 1977); White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970). Good moral character has been judicially defined in a manner that is not limited to the ability to distinguish between right and wrong. Good moral character requires:

    . . . 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, 347 So.2d at 1104.

15. A finding that one lacks good moral character is not limited to acts that reflect moral turpitude. A lack of good moral character includes:

    . . . 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.

    G.W.L., 364 So.2d at 457.

16. Respondent knowingly made false statements under oath to internal investigators. Respondent had the intent to mislead public servants and law enforcement officers.

17. The false statements made by Respondent are unlawful. Rule 11B-27.0011(5) defines the failure to maintain good moral character to include false statement. Respondent solicited and participated in an act of prostitution within the meaning of Section 796.07.

18. Respondent failed to maintain good moral character within the meaning of Section 943.13(7) and Rule 11B-27.011(4).

    Respondent failed to observe the difference between right and wrong and failed to observe the rules of right conduct. Zemour,

    347 So.2d at 1103. Respondent created substantial doubts about his respect for the rights of others and for the laws of the state. G.W.L., 364 So.2d at 456.

19. Section 943.1395(7) authorizes a variety of lesser penalties in appropriate circumstances. The penalties include revocation of a law enforcement officer's certification, suspension up to two years, probation, retraining, and reprimand.

20. The acts committed by Respondent are serious. They involve more than one incident and are separated over time. Respondent made a false statement which is a ground for disqualification for certification.

21. Respondent has no previous history of misconduct or of any disciplinary action against him. The acts committed by Respondent were not committed in the course of Respondent's employment and did not result in serious injury or harm to persons, property, or the public.

22. The false statement made by Respondent involved illicit acts in Respondent's personal life. Respondent did not make a false statement concerning the activities of his employment. The false statement did not have an adverse impact on the conduct of his employer's business or on any current or prospective criminal proceedings against third parties.

23. Revocation of Respondent's certification as a law enforcement officer is not appropriate under the facts and

circumstances. However, the offenses are serious and warrant suspension of Respondent's license for a reasonable period.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 943.1395(6), guilty of violating Section 943.1395(7) and Rule 11B-27.0011(4), and suspending Respondent's certificate for two years, including the period, if any, that Respondent has been unemployed by the Department prior to the date of this Recommended Order.

RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

A. Leon Lowry, II, Director

Division of Criminal Justice Standards Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice Standards Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Paul D. Johnston Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

John C. Bunn, pro se

220 East Forsyth Street Jacksonville, 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.

All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

All references to rules are to rules promulgated in the Florida Administrative Code as of the e of this Recommended Order.

Docket for Case No: 96-005761

Orders for Case No: 96-005761