STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-1574

)

CHRISTOPHER HORNE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, on April 15, 1999, in Orlando, Florida.

APPEARANCES

For Petitioner: James D. Martin

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Warren Turner, Esquire

609 East Pine Street Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses of malicious harassment, unlawful battery (two counts), and unlawful entry of a structure (two counts) as set forth in the Administrative Complaint dated October 17, 1997.

Whether Respondent has failed to maintain good moral character, and, if so, what disciplinary action should be taken against his correctional officer's certification.

PRELIMINARY STATEMENT

In an Administrative Complaint, dated October 17, 1997, Petitioner alleged that the Respondent violated certain provisions of Florida law and rules. The Respondent filed an Election of Rights disputing the allegations set forth in the Administrative complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings on April 1, 1998, and discovery ensued. This matter was continued several times at the request of the parties; subsequently, a formal hearing was conducted on April 15, 1999.

Petitioner presented the testimony of four (4) witnesses: Patricia Johnson, Bobby Hunter, Barbara Mills, and Georgia Stubbs and submitted six (6) exhibits which were admitted into evidence. Respondent testified on his own behalf, and offered no other evidence.

Petitioner and Respondent agreed that the time for filing proposed recommended orders was ten (10) days from the filing of the transcript. The Transcript was filed on May 20, 1999.

Petitioner filed its Proposed Recommended Order on May 26, 1999. Respondent has not filed proposals as of the date of this Recommended Order.

FINDINGS OF FACT

1. Christopher Horne (Respondent), was certified by the Criminal Justice Standards and Training Commission on September 29, 1989, as a correctional officer, and was issued Correctional Certificate Number 70581.

2. Respondent was employed by the Orange County Sheriff's Office, Department of Corrections, as a correctional officer during the period of October 1, 1990, until his termination on November 14, 1997.

3. Patricia Johnson is currently employed with the Orange County Sheriff's Department of Corrections as a correctional officer and has been employed as such for the past twelve years. She is certified by the Criminal Justice Standards and Training Commission as a correctional officer.

4. Johnson first met Respondent in the summer of 1993 at work. They became friends and eventually began dating each other in a boyfriend-girlfriend relationship. This relationship continued for approximately two and a half years, until Johnson made the decision to end it. Johnson told Respondent on New Year's Eve 1995 that their relationship was over.

5. Johnson began dating another man. When Respondent found out that she was dating someone else, he began calling her repeatedly at work and at home. Respondent continued to harass Johnson by calling her late at night and by driving repeatedly

   past her home at night. This behavior began in January 1996 and continued through August 1996.

6. The Respondent used abusive language when speaking with Johnson. He threatened harm to her date, if he found her with someone. Johnson was afraid of Respondent and was afraid that he might harm her.

7. On July 21, 1996, Respondent went to Johnson's home unannounced and knocked on her door. When Johnson opened the door and saw who it was, she told Respondent to leave. He did not; instead he pushed his way into her home, physically struggled with her, and eventually pushed her onto her bed. Respondent pinned her down with his knees and threatened her. Johnson repeatedly told him to leave her home. Respondent eventually left the house.

8. Johnson reported Respondent's actions to the police. They documented the incident in a report. She told the police that she did not want to press charges against Respondent, but did want someone to talk to him about his actions. The police contacted Respondent and discussed the incident with him, but did not arrest him.

9. On November 10, 1996, at approximately 3:30 a.m., Johnson received a phone call at her house from a person she believed to be her brother. The person told her that he had forgot his keys and asked to be let into the house. A short time later, there was a knock at the door. When Johnson opened the

   door, Respondent was standing there. He said, "Bitch let me in" and proceeded to push his way into her home. He then grabbed her hair and hit her head against the wall several times. He continued to pull her hair and push her up against the wall. She begged him to leave and told him to stop hitting her. She broke free and ran to her brother's room and started banging on the door. Her bother, Bobby Hunter, came out. Johnson told him that she wanted Respondent out of her house. Her brother asked Respondent to leave. Eventually, Respondent did leave without further physical confrontation.

10. Johnson reported the incident to the police. After investigating the incident, the police completed a report and arrested the Respondent. Respondent was charged with burglary, battery, and aggravated stalking.

11. Respondent pled in circuit court to the misdemeanor charge of trespass to an occupied dwelling and was placed on one- year probation.

12. Respondent was suspended for 10 days from his employment with the Orange County Sheriff's Department of Corrections as a result of his actions involving Johnson. He was later terminated from his employment on November 14, 1997. Respondent is currently not employed as a correctional officer.

13. Respondent's description of the events from January 1996 through August 1996 and on the night of November 10, 1996 is not credible.

14. On December 11, 1992, the Criminal Justice Standards and Training Commission issued an official Letter of Guidance to the Respondent. This prior action by the Commission is an aggravating factor in this case.

    CONCLUSIONS OF LAW

    
    

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

16. 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. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

17. Section 943.13(7), Florida Statutes, establishes the minimum qualifications for law enforcement and corrections officers in Florida, which states in pertinent part:

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

    
    

18. In Zemour, Inc. vs. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied after an administrative finding that the owner was not of good moral character. 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.

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

    [s]hould not be restricted to those acts that reflect moral turpitude, but rather extends to 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. See also, White vs. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

20. Rule 11B-27.0011(4), Florida Administrative Code, defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. This was the applicable rule section in effect at the time Respondent committed the violations set forth in the Administrative. The rule states in relevant portion:

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

       
       

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 784.03 and 784.048 . . . .

          
          

21. Section 810.02, Florida Statutes, provides, in pertinent part, as follows:

    1. "Burglary" means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

       
       

    2. Burglary is a felony of the first degree, punishable by imprisonment for a term not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

    
    

    1. Makes an assault or battery upon any person;

       
       

22. Section 748.03, Florida Statutes, provides, in pertinent part, as follows:

    (1)(a) The offense of battery occurs when a person:

    
    

    1. Actually and intentionally touches or strikes another person against the will of other; or

       
       

    2. Intentionally causes bodily harm to another person.

    
    

    1. Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, . . . .

    
    

23. Section 784.048, Florida Statutes, provides, in pertinent part, as follows:

    1. As used in this section, the term:

       
       

       1. "Harass" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such persons and serves no legitimate purpose.

          
          

       2. "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." Such constitutionally protected activity includes picketing or other organized protests.

          
          

       3. "Credible threat" means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

          
          

    2. Any person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

24. Section 943.1395(7), Florida Statutes, provides that: "Upon a finding by the commission that a

    certified officer has not maintained good

    moral character . . . the commission may enter an order imposing . . . penalties" which include revocation, suspension, probation and/or a reprimand.

    
    

25. Rule 11B-27.005(5), Florida Administrative Code, provides that:

    "When the Commission finds that a certified officer has committed an act which violates section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

    
    

    1. For the perpetration by the officer of an act which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from, suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances, include the following:

       
       

    2. For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.0011(4)(b), F.A.C, . . . but where there is not a violation section 943.13(4), F.S., the action of the commission shall be to impose a penalty ranging from, probation of certification to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following:

    
    

    Violation Recommended Penalty Range:

    
    

    2. Battery Suspension of Certificate (784.03)

    
    

26. Rule 11B-27.005, Florida Administrative Code, provides:

    
    

    (4) The Commission sets forth in paragraph (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated section 943.13(7), F.S. . . . The disciplinary

    guidelines are based upon a single count violation of each provision listed.

    
    

    * * *

    
    

    (6) The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to . . . a hearing officer, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following aggravating or mitigating circumstances.

    
    

    * * *

    
    

    (e) The number of violations found by the Commission.

    
    

    * * *

    
    

    (g) The severity of the misconduct.

    
    

    * * *

    
    

    (k) The actual damage, physical or otherwise, caused by the misconduct.

    
    

    * * *

    
    

    (s) Prior Letter of Guidance or Letter of Acknowledgement.

    
    

    * * *

    
    

    (u) Multiple counts of violations of Section 943.13(7), F.S.

    
    

27. The Petitioner showed by clear and convincing evidence that the Respondent committed several harassing and violent acts against Patricia Johnson between January 1996 and July 21, 1996; and again on November 10, 1996.

28. Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code.

29. Aggravating circumstances exist in this case and Respondent's good conduct on the job is not sufficient to overcome the seriousness of these incidents.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission find Respondent guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and it is further

RECOMMENDED that Respondent's certification be revoked. DONE AND ENTERED this 15th day of June, 1999, in

Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.

COPIES FURNISHED:

James D. Martin

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Warren Turner, Esquire 609 East Pine Street Orlando, Florida 32802

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

Professionalism Services

Florida Department of Law Enforcement 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-001574

Orders for Case No: 98-001574