STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

VICTOR BOSCH, )

)

Respondent. )

Case No. 01-3871PL

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on November 9, 2001, in North Port, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Victor Bosch, pro se

3394 South Sumter Boulevard North Port, Florida 34287

STATEMENT OF THE ISSUES

Whether Respondent used excessive or unnecessary force on Stephen Cody Kester on July 15, 2000, as set forth in the

Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a Law Enforcement Officer, an Auxiliary Law Enforcement Officer and a Correctional Law Enforcement Officer in the State of Florida. He was employed by the Charlotte County Sheriff's Office as a Deputy Sheriff during the relevant time-period.

In an Administrative Complaint dated March 9, 2001, Petitioner alleged that Respondent violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B- 27.0011(4)(c), Florida Administrative Code, and that, Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that Law Enforcement Officers in the State of Florida have good moral character in that Respondent utilized excessive and/or unnecessary force.

Respondent filed an Election of Rights form 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 October 4, 2001, which noticed and conducted a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of five witnesses: Stephen Cody Kester; Pamela Huckaby; Deputy Richard

Kaufman, Charlotte County Sheriff's Office; Joseph Macuba, Inspector Internal Affairs, Charlotte County Sheriff's Office (retired); and Lieutenant David Lucas, Charlotte County Sheriff's Office. Respondent testified on his own behalf.

Petitioner submitted eight exhibits, seven of which were admitted into evidence without objection.

Petitioner and Respondent agreed that the time for filing proposed recommended orders was 15 days from the filing of the transcript. The Transcript was filed on November 28, 2001.

Petitioner filed its Proposed Recommended Order on November 28, 2001. Respondent has not filed proposals as of the date of this Order.

FINDINGS OF FACT

1. Respondent, Victor Bosch, is a certified Law Enforcement Officer in the State of Florida. He was issued Law Enforcement Certificate Number 170035 on February 26, 1997. He was also issued Auxiliary Law Enforcement Certificate Number 163915 on June 27, 1996, and Correctional Officer Certificate Number 160836 on March 27, 1996.

2. On June 15, 2000, Respondent was employed by the Charlotte County Sheriff's Department as a Deputy First Class.

3. On July 15, 2000, Stephen Cody Kester, a seventeen- year-old juvenile, was in attendance at a teen dance conducted

   by the Charlotte County Parks and Recreation Department at the Tringali Center located in Englewood, Charlotte County, Florida.

4. During teen dances at the Tringali Center, it is common practice for teenagers to step outside of the center, with permission of the adult sponsors, to use wireless phones due to the volume of music, if they stand near the Deputy on security duty by the front door.

5. Rules regulating the dances conducted at the Tringali Center are not written or posted in any manner, but left to the discretion of individual counselors. However, teenagers who leave the premises during a dance, without permission, are not permitted to return to the dance.

6. Kester had asked and was given permission to go outside of the center to use his wireless telephone.

7. Upon leaving the center, Kester informed Respondent that he had permission to use his wireless phone.

8. Kester stepped several feet away from Respondent, and out from under the overhang at the Tringali Center, but within clear sight of Respondent.

9. Respondent became upset that Kester moved away from him. He also refused to accept Kester's statement that he had permission to be outside in order to use his wireless phone and then return to the dance. When Kester tried to re-enter the center, Respondent placed Kester in an arm lock, told him he

   could not re-enter the premises, and forced him to leave the area.

10. Kester was not a threat to Respondent, nor was he placed under arrest.

11. As a result of the arm lock placed on Kester, he was taken to an emergency room by his mother and subsequently diagnosed with an acute strain, left shoulder.

12. At the time of the incident in question, Kester suffered from a brain tumor that was life threatening, and any sudden movement or trauma to the head could have resulted in dire consequences.

13. The Tringali Center had no hard and fast rules concerning leaving the building to use a wireless phone. As long as the individual stayed in the area of the overhang and the deputy outside was informed that permission had been granted, then it was acceptable for the teenager to return to the dance.

14. The amount of force used by Respondent to restrain Kester was excessive and unnecessary.

15. Respondent's explanation that the arm lock technique he used was acceptable practice in the law enforcement community and that the level of force used was not harmful to Kester is not credible, nor persuasive.

16. Prior to this incident, Respondent was employed in law enforcement for seven years and had no prior disciplinary

    incidents.

    
    

    CONCLUSIONS OF LAW

    
    

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

18. 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 through 943.255, Florida Statutes (2001), and is authorized to discipline those licensed thereunder who violate the law.

19. Revocation of license proceedings are penal in nature, State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v.

    Department of Professional Regulation, Division of Real Estate,

    
    

    592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and

    Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Mel Heifetz d/b/a Key Wester Inn v. Department of Business

    Regulation, Division of Alcoholic Beverages and Tobacco, 475 So. 2d 1277 (Fla. 1st DCA 1985). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Section 943.13, Florida Statutes, establishes 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.

    
    

21. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied a license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are 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.

    
    

    Id. at 1105.

22. In Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (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,

    should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase 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.

    
    

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

23. 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 laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1985).

24. 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 in effect at the time Respondent allegedly committed the violations set forth in the Administrative Complaint. 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), Florida Statutes, a certified officer's failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, is defined as:

       
       

       * * *

       
       

       (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

       
       

       1. Excessive use of force, defined as a situation in which an officer uses a "level of force" inappropriate with the circumstances presented at the time of the incident.

       
       

25. 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].

    
    

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

    1. 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.

       
       

    2. 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:

       
       

       * * *

       
       

       (b) For the perpetration by the officer of an act which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(b), F.A.C., . . . but where there is 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 aggravating or mitigating circumstances include the following:

       
       

       Violation:

       Excessive use of force, under Color of Authority

       
       

       Recommended Penalty Range:

       Suspension of certification to revocation

       
       

    3. 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.

       
       

       1. Aggravating circumstances:

          
          

          1. Whether the certified officer used official authority to facilitate the conduct.

          2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

          * * *

          7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       2. Mitigating circumstances:

       
       

       4. The length of time the certified officer has been certified.

       
       

       * * *

       
       

       6. The effect of disciplinary or remedial action taken by the employing agency . . .

       
       

27. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, by the use of excessive force under the circumstances presented at the time of the incident.

28. Aggravating and mitigating circumstances exist in this case.

RECOMMENDATION

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

RECOMMENDED as follows:

1. Respondent be found guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes.

2. Respondent's certification be suspended for six months and successful completion of such training or retraining deemed appropriate by the Commission.

DONE AND ENTERED this 17th day of December, 2001, 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 17th day of December, 2001.

COPIES FURNISHED:

Victor Bosch

3394 South Sumter Boulevard North Port, Florida 34287

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement 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: 01-003871PL

Orders for Case No: 01-003871PL