STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KENNETH BURNS, )

)

Respondent. )

Case No. 01-3748PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case in Perry, Florida, on December 7, 2001, before the Division of Administrative Hearings by its duly-designated Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Kenneth Burns, pro se

1727 Dewey McGuire Road Perry, Florida 32348-8087

STATEMENT OF THE ISSUE

Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a correctional officer in the State of Florida and was employed by the Florida Department of Corrections, Lake City Service Center.

In an Administrative Complaint dated August 10, 2001, Petitioner alleged that Respondent violated the provisions of Sections 784.03 and 806.1395(6) and (7), Florida Statutes; and Rule 11B-27.0011(4)(c), Florida Administrative Code, by failing to maintain the qualifications established by Section 943.13(7), Florida Statutes.

Respondent filed an Election of Rights form disputing the allegation set forth in the Administrative Complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings which noticed and conducted a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Petitioner presented the testimony of two witnesses: Trooper Brannon M. Snead, Florida Highway Patrol; and Detective Patricia Iadanza, Leon County Sheriff's Office.

Petitioner submitted two exhibits and one post-hearing submission without objection.

Respondent did not appear and did not submit any post- hearing findings. Petitioner submitted post-hearing findings which were read and considered.

FINDINGS OF FACT

1. Respondent Kenneth Burns (Respondent) is a certified correctional officer in the State of Florida.

2. On or about November 26, 2000, Highway Patrol Trooper Brannon Snead saw a Camaro, with its emergency flashers on, parked on Highway 90 in the vicinity of State Road 10. Trooper Snead stopped to see if he could help and observed two white males hitting the passenger of a black Ford Mustang that was also parked alongside the road.

3. Trooper Snead intervened and eventually arrested Respondent and charged him with criminal mischief, burglary of an automobile, and battery. Trooper Snead identified his arrest report which was received in evidence as Petitioner's

   Exhibit A.

   
   

4. Trooper Snead observed Respondent strike the driver of the Mustang twice. Trooper Snead observed that Respondent was under the influence of intoxicants and was impaired. After arresting Respondent, Trooper Snead transported him to the Leon County Jail. Trooper Snead observed Respondent's demeanor. Respondent was argumentative, combative, and uncooperative. Trooper Snead had to warn Respondent several times about his behavior. Respondent spit all over the back of Trooper Snead's patrol car.

5. Detective Patricia Iadanza testified that she was delivering two criminals to the jail on November 26, 2000. She observed Trooper Snead with two persons who were in handcuffs in the booking area. One was quiet. The other person, who she later learned was Respondent, was loud and obnoxious.

6. She found it necessary to tell Respondent to sit down and be quiet. Respondent was loud and rowdy and indicated he was a certified officer. Detective Iadanza reported she warned Respondent that his conduct would get him in serious trouble in the Leon County Sheriff's Department and he needed to straighten out. He did not stop his loud and rowdy behavior.

7. Subsequently, she wrote a report regarding Respondent's behavior after he made a complaint about Trooper Snead.

8. According to Petitioner's late-filed exhibit, Respondent entered a plea of nolo contendere to a charge of trespass of a vehicle, battery, and criminal mischief. He was placed on probation for one year.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding pursuant to Section 120.569, Florida Statutes.

10. 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 v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Section 943.13(7), Florida Statutes, regarding the minimum qualifications for law enforcement officers in Florida, provides that they shall:

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

    
    

12. In Zemour, Inc. v. Division of Beverages, 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 defined moral character:

    [N]ot only the ability to distinquish 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.

    
    

13. 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 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 v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

    
    

14. The position of law enforcement officer is one of great public trust. There can be no more basic expectation than those who enforce the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

15. 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 in November of 2000. The rule states in pertinent part:

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

    
    

    * * *

    
    

    (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. Sections . . . 784.03 [battery], . . .

    806.13 [criminal mischief], 810.08 [trespass], . . . F.S.

    
    

16. Section 943.1395(7), Florida Statutes, provides that the Commission may revoke, suspend, place on probation or

    reprimand a certified officer who has not maintained good moral character.

17. Rule 11B-27.005(5), Florida Administrative Code, provides that when the Commission finds that a certified officer has committed an offense that would be a misdemeanor (other than perjury, making false statements, or being dishonorably discharged), it may impose a penalty ranging from probation to suspension.

18. Rule 11B-27.005, Florida Administrative Code, further provides that:

    (6) The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to . . . an Administrative Law Judge . . . .

    
    

19. The Commission shall base a deviation from the disciplinary guidelines upon a finding of aggravating circumstances. These may include whether the certified officer used official authority to facilitate the misconduct; whether the misconduct was committed while the certified officer was performing other duties; the number of violations found by the Commission; the severity of the misconduct; the danger to the public; and, the actual damage, physical or otherwise, caused by the misconduct.

20. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character with the meaning of Section 943.13(7), Florida Statutes, and

    Rule 11B-27.0011(4)(c), Florida Administrative Code.

    
    

21. Aggravating circumstances exist in this case.

RECOMMENDATION

Based on the forgoing 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 Section 943.13(7), Florida Statutes, and that Respondent's certification be suspended for 24 months.

DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 20th day of February, 2002.

COPIES FURNISHED:

Kenneth Burns

1727 Dewey McGuire Road Perry, Florida 32348-8087

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

William G. Bankhead, Secretary Florida Department of Law Enforcement Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Florida Department of Law Enforcement Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

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: 01-003748PL

Orders for Case No: 01-003748PL