DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 98-0692
LARRY J. GARDNER, )
Respondent. )
Pursuant to notice, a formal hearing was held in this case on August 26, 1998, at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Karen D. Simmons
For Respondent: H. R. Bishop
Florida Police Benevolent Association, Inc.
The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
By Administrative Complaint dated August 29, 1997, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) charged Larry J. Gardner (Respondent) with failing to maintain good moral character in violation of Subsections 943.13(7) and/or 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(a) and/or (b), Florida Administrative Code, by committing battery on a law enforcement officer and by resisting arrest with violence.
Respondent disputed the allegations of fact and requested a formal hearing. On February 9, 1998, this matter was referred to the Division of Administrative Hearings.
At hearing, the Petitioner presented the testimony of four witnesses and entered five exhibits into evidence. Respondent testified in his own behalf, presented the testimony of one witness, and entered no exhibits into evidence.
The transcript of the hearing was filed on October 19, 1998, and the parties were initially afforded ten (10) days from that date to file post-hearing submissions; however, at the parties' request, that time was extended to November 13, 1998. The parties filed post-hearing submissions which have been considered in the preparation of this Recommended Order.
At all times material hereto, Larry J. Gardner (Respondent) was certified by the Florida Department of Law
Enforcement, Criminal Justice Standards and Training Commission
(Petitioner), having been issued Correctional Certificate Number 50721 on October 19, 1982.
Respondent has been a correctional officer for sixteen and one-half years. At the time of the hearing, Respondent was employed with the Dade Correctional Institution as a Correctional Sergeant.
On June 13, 1995, between 1:00 and 1:30 a.m., Respondent met his friend, Richard Brack, at a bar, Jones Galley II (Galley's Bar); Respondent and Brack were going to go out together. Brack was an employee at Galley's Bar and was just getting off work. While waiting for Brack to get off work, Respondent had one drink.
Brack left his vehicle at Galley's Bar. Respondent drove his vehicle, with Brack accompanying him, to the Saga Lounge which was about fifteen minutes from Galley's Bar. They were at Saga Lounge for approximately an hour or an hour and a half during which time they had some drinks. Respondent consumed two to three drinks.
Between 3:00 and 3:30 a.m., Brack and Respondent left Saga Lounge. They decided to go to the Miccosukee Indian Gaming Hall (Gaming Hall) which was approximately an hour's drive. Respondent drove his vehicle, with Brack accompanying him, to the Gaming Hall.
Respondent and Brack arrived at the Gaming Hall between 4:00 and 4:30 a.m. Respondent parked his vehicle in the Gaming
Hall's parking lot. He and Brack, as were other patrons of the Gaming Hall, were observed in the parking lot by Gaming Hall's security personnel, using security cameras. Respondent was observed carrying a knife on the side of his belt. Knives were one of several items prohibited in the Gaming Hall.
Upon entering the Gaming Hall, Respondent was approached by a security guard who advised Respondent that he would have to leave his knife in the vehicle. Respondent complied with the request, returning to his vehicle and placing the knife on the dashboard of his vehicle. After complying, Respondent entered the Gaming Hall.
The Gaming Hall was almost empty. Respondent and Brack went to the lounge area where they conversed with the bartender and a waitress and consumed two to three drinks.
At approximately 7:00 a.m., Officer Gustavo Hernandez, a Miccosukee Police Officer who was on duty at the Gaming Hall, requested Respondent and Brack to leave the lounge area so that revenue collection could take place. It is the procedure of the Gaming Hall to request patrons to leave the area, in which revenue collection is performed, during revenue collection. Officer Hernandez was dressed in his police uniform which has on it, among other things, a badge and insignia, indicating Miccosukee Tribe Police Department, and he was also wearing his firearm.
Respondent was being vulgar and obnoxious and asked
Officer Hernandez, "Who the fuck are you?" Officer Hernandez responded that he was a Miccosukee Police Officer. Respondent did not believe that Officer Hernandez was a police officer but was a security guard. After further discussion regarding leaving the area for revenue collection, Respondent and Brack cooperated and left the area where the revenue collection was being performed; they went to another area of the Gaming Hall.
Respondent was loud and boisterous in the area to which he and Brack had gone, disturbing other patrons. Officer Hernandez again approached Respondent and Brack and requested Respondent to lower his voice. Officer Hernandez also advised Brack that probably neither he (Brack) nor Respondent should drive and that he (Officer Hernandez) would get them a taxi.
Approximately ten minutes later, Officer Hernandez observed Respondent walking out of the Gaming Hall to the parking lot. Respondent was going to his vehicle. Officer Hernandez followed Respondent, following approximately six feet behind him, and advised Respondent continuously that he (Respondent) appeared to be intoxicated; that a taxi would be gotten for him; and that, if he got into his vehicle, he would be arrested for DUI, driving under the influence of alcohol. Respondent never turned around but continued to his vehicle.
When Respondent reached his vehicle, he opened the door, got into the vehicle in the driver's seat, and closed the door. Respondent placed the keys into the ignition and attempted
to start the vehicle, but the vehicle would not start. Respondent immediately attempted to start the vehicle again.
This time, the vehicle started, and Respondent placed the vehicle in drive and drove away at a high rate of speed.
A rapid sequence of events took place from the moment Respondent reached his vehicle to the moment that he drove away. Almost at the same time that Respondent was trying to start the vehicle for a second time, Officer Hernandez reached Respondent's vehicle and informed Respondent that he was under arrest for DUI. At that point in time, Officer Hernandez had placed Respondent under arrest, and Officer Hernandez was attempting to effectuate the arrest. At the time of placing Respondent under arrest, Officer Hernandez did not identify himself as a police officer.
Almost simultaneously with Respondent placing the vehicle in drive, Officer Hernandez opened the vehicle's door, but only partially, and reached for the keys in the ignition, reaching as far as the steering column. Almost simultaneously with Respondent driving away, but, immediately before Officer Hernandez opened the door, Respondent had started the vehicle and had placed the vehicle in drive.
As Respondent began driving away, the partially open door closed from the forward movement of the vehicle, striking Officer Hernandez's left arm as it was closing.1
The evidence is clear and convincing and a finding is made that at no time did Respondent intend to touch or strike
Officer Hernandez or for the door to strike Officer Hernandez.
However, the evidence is not clear and convincing and a finding is not made that Officer Hernandez touched Respondent's shoulder and that Respondent, with his hand, pushed Officer Hernandez back when Officer Hernandez reached into the vehicle.2
Respondent admits that he heard Officer Hernandez state that he (Respondent) was under arrest at the same time that he was driving away. Respondent did not stop his vehicle.
Officer Hernandez pursued Respondent in his police cruiser but stopped due to safety reasons because of the traffic. There was no evidence that Officer Hernandez used his police siren or lights or called for assistance during the pursuit. Before Officer Hernandez stopped the pursuit, he was able to get Respondent's vehicle tag number which was used to locate Respondent.
Respondent was unaware that Officer Hernandez was pursuing him.
Respondent was later arrested.3
Respondent was disciplined by his employer for the incident, including the DUI. He received a 30-day suspension which was reduced, due to a settlement agreement with his employer, to a 20-day suspension.
Prior to this incident, Respondent had not been disciplined by the Petitioner.
After this incident and not associated therewith, on
October 15, 1997, the Petitioner issued Respondent a Letter of Acknowledgment for DUI.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations of the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 943.13, Florida Statutes (1993), establishes the minimum qualifications for employment or appointment as, among others, a correctional officer, which includes the following requirement:
Have a good moral character as determined by a background investigation under procedures established by the commission.
Section 943.1395, Florida Statutes (1993), provides in pertinent part:
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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Rule 11B-27.0011, Florida Administrative Code (1994), provides in pertinent part:
For the purposes of the Commission's implementation of any of the penalties enumerated in Rule [sic] subsection 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Rule [sic] subsection 943.13(7), F.S., is defined as:
The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not . . . .
Section 784.07, Florida Statutes (Supp. 1994), provides in pertinent part:
As used in this section, the term "law enforcement officer" includes a law enforcement officer, a correctional officer, a correctional probation officer, a part-time law enforcement officer, a part-time
correctional officer, an auxiliary law enforcement officer, and an auxiliary correctional officer, as those terms are respectively defined in s. 943.10 . . .
* * *
Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer . . . while the officer . . . is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
* * *
In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
Section 784.03, Florida Statutes (1993), provides in pertinent part:
(1) A person commits battery if he:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to an individual.
The offense of resisting an officer with violence is found at Section 843.01, Florida Statutes (1993), which provides in pertinent part:
Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1) . . .; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree . . . .
The offense of resisting an officer without violence is found at Section 843.02, Florida Statutes (1993), which provides in pertinent part:
Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1) . . .; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . .
Section 943.10, Florida Statutes (1993), provides in pertinent part:
(1) "Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic,
or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
There is no dispute that Officer Hernandez is a law enforcement officer as defined by Subsection 943.10(1), Florida Statutes (1993).
Certain elements must be present before the offense of battery on a law enforcement is found to have occurred. Those elements are as follows: "1) knowingly 2) actually 3)intentionally 4) touching or striking 5) against the will 6) of a law enforcement officer 7) engaged in the lawful performance of his duties." Mordica v. State, 618 So. 2d 301, 303-304 (Fla. 1st DCA 1993), quoting State v. Henriquez, 485 So. 2d 414, 415 (Fla. 1986).
The offense of battery on a law enforcement officer is a specific intent crime. Mordica, supra. It is "an act . . . accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act." Mordica, supra, quoting Evans v. State, 452 So. 2d 1093, 1094 (Fla. 2d DCA 1984). The offense is also a "crime encompassing a requirement of a subjective intent to accomplish a statutorily prohibited result." Mordica, supra, quoting Evans, supra.
The Petitioner failed to demonstrate by clear and convincing evidence that, as alleged in the Administrative Complaint, Respondent committed the offense of battery on a law enforcement officer.
It is unnecessary to prove the lawfulness of the arrest where the offense is resisting arrest with violence. Benjamin v. State, 462 So. 2d 110, 112 (Fla. 5th DCA 1985). Using force or violence against a person reasonably known to be a police officer is unlawful even when the arrest is not lawful. Benjamin, supra at 111.
The Petitioner failed to demonstrate by clear and convincing evidence that, as alleged in the Administrative Complaint, Respondent committed the offense of resisting arrest with violence. Given the circumstances of the case at hand, regarding the rapidness of the occurrence of the events after Respondent reached his vehicle, the almost simultaneous opening of the vehicle's door at the time that Respondent started the vehicle and placed it in drive, and the forward movement of the vehicle closing the vehicle's door, the evidence is not clear and convincing that the facts of the case at hand rise to the level of resisting arrest with violence.
The Administrative Complaint did not charge Respondent with committing the offense of resisting arrest without violence, and therefore, a violation of the said Section cannot form the basis for license revocation. McMillian v. Nassau County School
Board, 629 So. 2d 226 (Fla. 1st DCA 1993); Kinney v. Department of State, 501 So. 2d 129 (Fla. 1st DCA 1987); Hunter v.
Department of Professional Regulation, 458 So. 2d 842 (Fla. 2d DCA 1984).
"What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same available." White v. Beary, 237 So. 2d 263, 266 (Fla. 1st DCA 1970). "In the context of professional and occupational licensing, the question of what constitutes good moral character has been held to be ordinarily a question of fact for the trier of fact." Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So. 2d 187, 188 (Fla. 3d DCA 1991).
The Petitioner failed to demonstrate by clear and convincing evidence that Respondent failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (1993).
Should the Petitioner decide that it is authorized to determine whether Respondent committed the offense of resisting arrest without violence and that Respondent did commit the said offense, the following factors should be considered. The Letter of Acknowledgment received by Respondent should not be considered in the penalty phase as an aggravating factor. The Petitioner issued to Respondent the Letter of Acknowledgment subsequent to the incident in the case at bar. The situation involving an
individual charged with violating probation is looked to for guidance. Where the illegal activity occurred subsequent to the probation order, not prior to, or during the period of probation the individual on probation is held to have violated the terms of probation. Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); O'Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972).
Therefore, the Letter of Acknowledgment should not be considered
an aggravating factor in any disciplined which may be imposed upon Respondent in the case at bar.
Another factor which should be consider is that the Letter of Acknowledgment is the only disciplinary action taken against Respondent by the Petitioner.
The Petitioner should also consider the factor that Respondent's employer disciplined him by imposing a 20-day suspension.
Taking the above factors into consideration, it is recommended that, if the Petitioner decides that it has the authority to determine whether Respondent committed the offense of resisting arrest without violence and decides that he committed such offense, Respondent's certification be suspended, not revoked, together with any appropriate terms and conditions.
RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission enter a final order:
arrest without violence.
DONE AND ENTERED this 19th day of February, 1999, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1999.
1/ At hearing, Officer Hernandez testified that he did not recall the door striking his arm because the incident happened so fast. He testified further that, shortly thereafter, bruises developed on his arm. It is reasonable and logical that the vehicle's door struck Officer Hernandez's arm and that the bruising was caused by the door striking his arm.
2/ Taking into consideration (1) the rapidness that the incident at the vehicle occurred when Officer Hernandez attempted to arrest Respondent and (2) Officer Hernandez's inability to recall, at hearing, whether the vehicle door hit him (Officer Hernandez), Petitioner's evidence is not clear and convincing that Respondent, with his hand, pushed Officer Hernandez back.
3/ Respondent includes in his proposed findings of fact that he was charged with aggravated battery on a law enforcement officer, battery on a law enforcement office, and resisting arrest without violence; that he pled no contest to resisting arrest without violence, with a fine imposed and adjudication was withheld; and that the aggravated battery and battery on a law enforcement officer were dismissed. However, no evidence was presented at hearing and no stipulation was presented and no other form of evidence was presented evidencing these facts. As a result, no finding of fact is made regarding the charges or the disposition of the charges.
Karen D. Simmons, Assistant General Counsel Florida Department of Law Enforcement
H. R. Bishop, Assistant General Counsel Florida Police Benevolent Association, Inc.
A. Leon Lowry, II, Program Director Division of Criminal Justice
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
