STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-2373

)

ANDREW SANDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled matter was heard before the Division of Administrative Hearings by Administrative Law Judge, Daniel M. Kilbride, on August 14, 1997, by video conference to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Assistant General Counsel Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March 28, 1995, charging that Respondent failed to maintain good moral character by engaging, while on duty, in sexual contact with an individual. Respondent demanded a formal hearing by filing an Election of Rights on April 27, 1995. This matter was referred to the Division on May 15, 1997, and a formal hearing was scheduled. Prior to the hearing date, this matter was converted to a video conference, and the parties were notified.

At the hearing, diligent search and inquiry was made as to the whereabouts of the Respondent, but he could not be located. After a reasonable time, the hearing commenced. The Petitioner presented the testimony of two witnesses, and three exhibits were admitted in evidence. No evidence was presented on behalf of Respondent.

A transcript of the proceedings was filed with the Clerk of the Division on August 28, 1997. Petitioner filed its Proposed Findings of Fact and Conclusions of Law on September 5, 1997.

Respondent has not filed proposed findings of fact or conclusions of law as of the date of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on March 14, 1988, as a law enforcement officer, Certification Number 55408, and at all times relevant, the certification was active.

2. Between November of 1993 and March of 1994, the Respondent was employed as a police officer with the Orlando

   
   

   Police Department. During this time, the Respondent was assigned to the Southeast Patrol Division during the midnight shift.

3. In August of 1993, Yvette Jolene Bevivino (Bevivino) became acquainted with the Respondent. At the time Bevivino was employed at Shoney's Restaurant on the 1700 block of South Semoran in the City of Orlando as a Dining Room Supervisor. The Respondent would stop by at the restaurant and talk to Bevivino after she got off at work.

4. The Respondent would usually stop by sometime between midnight to 2:00 a.m. to see her. Usually when the Respondent came to visit he was in uniform. There were, however, times when Respondent told her that he was working undercover. There were other instances that while Respondent was talking to her, he received a radio dispatch, and he would have to leave.

5. Between November of 1993 and March of 1994, Bevivino and the Respondent would leave the restaurant area, go to a secluded location, and engage in sexual conduct. Bevivino and the

   Respondent engaged in sexual intercourse on two or three occasions. Bevivino performed oral copulation on the Respondent on one occasion, and she observed the Respondent masturbate on one occasion.

6. Usually the liaisons were initiated by the Respondent stopping by the restaurant when she was getting off work. Bevivino would then follow the Respondent to a wooded area behind Denny's on State Road 436 by the airport. The Respondent was dressed in his uniform on each occasion and was driving an Orlando Police Department vehicle.

7. At least some, if not all, of the sexual encounters were interrupted by the Respondent receiving a radio dispatch. If that occurred, the Respondent and Bevivino would complete the act and the Respondent would leave. The sexual encounters with Bevivino would last from 15 minutes to one hour and 15 minutes.

8. On or about July 25, 1994, Sgt. Paul Rooney was employed by the Orlando Police Department and assigned to the Internal Affairs Division.

9. The Respondent stated to Sgt. Rooney on July 25, 1994, and again on August 8, 1994, that he had been having sexual relations with a female while he was on duty and in uniform.

10. On August 8, 1994, Sgt. Rooney formally interviewed the Respondent, and the Respondent was placed under oath prior to his interview.

11. It was the policy of the Orlando Police Department that officers are available at all times they are on duty, even for meal breaks.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085-

    
    

    943.255, Florida Statutes (1993), and is authorized to discipline those licensed thereunder who violate the law.

14. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Section 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

15. Section 943.13, Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    Section 943.1395(7), Florida Statutes provides:

    
    

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

       
       

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

16. In Zemour, Inc. vs. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are entirely dissimilar to the instant case, the court's definition of moral character is significant:

    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.

    
    

    Such definition should be used in the case before this tribunal.

    
    

17. In Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of "good moral character," in a case involving admission to the bar,

    requires an inclusion of 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.

    
    

18. See also, White vs. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).

19. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6) a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:

    . . .

    (c) 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.

20. In Rule 11B-27-.005(3)(c)8., Florida Administrative Code (1993), engaging in sex while on duty was listed as a specific violation of Rule 11B-27.0011(4)(c), Florida Administrative Code, which carried a penalty guideline of revocation for the offense.

21. In the case at bar, clear and convincing evidence established that between approximately November 1993 and March 1994 the Respondent engaged in sexual relations or sexual conduct while he was on duty. Respondent committed serious misconduct while on duty which indicates a failure of the Respondent to maintain good moral character.

22. The position of law enforcement officer is one of great public trust. There can be no more basic public expectation than that those who enforce the law must themselves obey the law. City of Palm Bay vs. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989). The seriousness of the Respondent's misconduct merits revocation of his law enforcement officer certification.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993), and that Respondent's certification be REVOKED.

DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

230 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 10th day of September, 1997.

Paul D. Johnston, General Counsel Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Andrew J. Sanderson 946 Malden Court

Longwood, Florida 32750

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

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 97-002373

Orders for Case No: 97-002373