STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 03-0580PL

)

RICHARD BROWN, )

)

Respondent. )

__ )

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on April 16, 2003.

APPEARANCES

For Petitioner: Linton B. Eason

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: C. Michael Cornely

Hartman & Cornely, P.A.

10680 Northwest 25th Street, Suite 200

Miami, Florida 33172 STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain good moral character, as required by Sections 943.1395(6) and (7),

and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 1, 2001, Petitioner alleged that, on December 8, 1999, Respondent unlawfully owned or possessed a short-barreled shotgun.

At the hearing, Petitioner called five witnesses and offered into evidence three exhibits. Respondent called five witnesses and offered into evidence three exhibits. All exhibits were admitted except Petitioner Exhibit 1 and a portion of Respondent Exhibit 3. Petitioner Exhibit 2 was not admitted for the truth of the contents. Instead of Respondent Exhibit 2, the parties filed a Stipulation on May 9, 2003. Petitioner Exhibit 1 and the excluded portion of Respondent Exhibit 3 were proffered.

The court reporter filed the transcript on June 12, 2003. The parties filed their proposed recommended orders by June 25, 2003.

FINDINGS OF FACT

1. At all material times, Respondent has been a certified law enforcement officer, holding certificate number 17231. He has been so certified for 18 years. He has been employed by the Florida City Police Department for eight years. According to the Mayor of Florida City, Respondent has a great reputation in

   the community and is often commended, including two weeks prior to the hearing by a citizens' group.

2. Sometime in August or September, 1999, Respondent's mother called him from her home in south Dade County. Fearful of an approaching hurricane, she asked Respondent to come to her home and install plywood to protect her home from hurricane damage.

3. While in a shed at his mother's home, preparing to install the plywood, Respondent found a short-barreled shotgun. The weapon was 21 inches long with a 13-inch barrel. Directed by his mother to get rid of the shotgun, Respondent placed it in a nearby duffel bag and, after finishing the hurricane preparations, took the bag to his apartment, and, without opening the zipped duffel bag to examine the weapon, placed the bag under his bed.

4. Due to an unrelated police matter, Respondent was arrested by officers of the Florida City Police Department on December 8, 1999. During the course of the arrest, which took place at the police station, officers asked Respondent for his badge and service weapon, which were at Respondent's home. Respondent and the officers thus went to Respondent's home to obtain his service weapon and badge.

5. While at Respondent's home, one of the officers asked if Respondent had any other weapons. Respondent went into his

   bedroom, pulled the closed duffel bag out from under the bed, and handed the duffel bag to the officer.

6. The officer to whom Respondent had handed the duffel bag opened the bag and removed the shotgun. Trying to open the shotgun, the officer was unable to do so. The officer asked Respondent for help, and he told him to push a button, but, even after one to two minutes of effort, the officer still was unable to open the shotgun.

7. On December 9, 1999, an officer of the Florida City Police Department contacted a special agent of the U.S. Bureau of Alcohol, Tobacco, and Firearms. After an investigation and conferring with the U.S. Attorney's Office, the special agent arrested Respondent for a violation of federal law in connection with his possession of the short-barreled shotgun.

8. Sometime in December 1999, the U.S. Attorney's Office for the Southern District of Florida filed a one-count indictment, charging Respondent with the knowing possession of a firearm with an overall length of less than 26 inches and a barrel length of less than 18 inches, in violation of federal law. Following a jury trial at which Respondent won an acquittal, the court entered a Judgment of Acquittal on February 22, 2000.

9. The special agent testified another special agent test fired the weapon in the presence of the special agent who

   testified at the hearing. The special agent testified that the weapon was operable at the time of the test firing.

10. However, the special agent admitted that neither he nor the other special agent documented the test firing. The special agent also admitted that, in his five and one-half years with the Bureau, this is the only time that he participated in a test firing of a weapon without documenting the test.

11. Petitioner has failed to prove that, on December 9, 1999, the shotgun was operable. The officer to whom Respondent handed the duffel bag had considerable difficulty even opening the shotgun. No evidence suggests a testing of the weapon to determine its operability at anytime in close proximity to December 9, 1999. The testimony of the special agent concerning test firing is short of clear and convincing for two reasons. First, Petitioner did not establish the predicate that the shotgun, at the time of this reported test firing, was unaltered from the time of its seizure on December 9, except for loading of a shell to be test fired. Second, the special agent did not conduct the test, the test was undocumented, and the special agent has never participated in another test that was undocumented. This testimony does not rise to clear and convincing evidence that the shotgun was even tested.

12. For these reasons, Petitioner has failed to prove that the shotgun that Respondent possessed on December 9, 1999, was, or could readily be made, operable.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

14. Section 943.13(7) requires law enforcement officers to maintain good moral character. Rule 11B-27.0011(4) provides that an officer fails to maintain good moral character if he commits an act that would constitute a felony, regardless whether prosecuted.

15. Section 790.221(1) provides that it is unlawful for any person to possess any short-barreled shotgun "which is, or may readily be made, operable."

16. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Petitioner has failed to prove by clear and convincing evidence that Respondent committed the crime charged in the Administrative Complaint because it failed to prove that the

short-barreled shotgun that Respondent possessed was, or could be readily made, operable.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 6th day of August, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 6th day of August, 2003.

COPIES FURNISHED:

Rod Caswell, Program Director Division of Criminal Justice

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

Michael Ramage, General Counsel Division of Criminal Justice

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

Linton B. Eason Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

C. Michael Cornely Hartman & Cornely, P.A.

10680 Northwest 25th Street, Suite 200

Miami, Florida 33172-2108

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000580PL

Orders for Case No: 03-000580PL