STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JOHN W. BRADLEY, )

)

Respondent. )

Case No. 03-1130PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this proceeding on June 9, 2003, in Marianna, Florida, before Diane Cleavinger, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: John W. Bradley, pro se

6072 Buffalo Road

Greenwood, Florida 32443 STATEMENT OF THE ISSUE

Whether Respondent correctional officer’s license should be disciplined.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 13, 2001, Petitioner alleged that the Respondent’s correctional officer’s license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, Petitioner alleged that Respondent violated the provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(a) and (b), Florida Administrative Code, in that Respondent failed to maintain good moral character by allegedly driving or controlling a motor vehicle while under the influence of alcoholic beverages. Respondent disputed the allegations set forth in the Administrative Complaint and timely requested a formal hearing. The case was referred to the Division of Administrative Hearings.

Settlement negotiations took place between Petitioner and Respondent. A settlement was negotiated pending signature by the parties and approval by the Board. Based on the proposed settlement, Petitioner filed a Motion to Relinquish Jurisdiction with Leave to Re-Open should the settlement not be finalized or approved. The Administrative Law Judge entered an Order Closing File on January 7, 2002.

Petitioner never signed the settlement. Therefore, due to the failure of settlement negotiations, Petitioner filed a Motion to Re-Open Case on March 27, 2003. The case was reopened and was assigned DOAH Case No. 03-1130PL.

At the hearing, Petitioner presented the testimony of one witness and offered seven exhibits into evidence. Respondent testified in his own behalf but did not offer any exhibits into evidence. Petitioner filed a Proposed Recommended Order on July 3, 2003. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent, John W. Bradley, is a certified correctional officer in the State of Florida, holding Law Enforcement Certificate License No. 165671. He has not previously had his license disciplined.

2. Around midnight on February 8, 2000, Officer Danny R. Alsobrooks, DUI Officer, Panama City Police Department, was called to the 4800 block of West Highway 98 by Corporal Victor Melvin of the Panama City Police Department for suspicious drunk driving by the Respondent.

3. Officer Alsobrooks was informed by Corporal Victor Melvin that Respondent had been driving erratically and had an odor of alcohol on his breath.

4. Upon arrival to the scene, Officer Alsobrooks noticed that Respondent was seated and in control of a black Toyota pickup.

5. Officer Alsobrooks began performing field evaluations to assess the sobriety of Respondent. He too noticed an odor of alcohol on Respondent’s breath.

6. Officer Alsobrooks had Respondent perform the one legged stand evaluation. He explained to Respondent what to do. He asked the Respondent to count one thousand one, one thousand two, one thousand three. The Respondent, however, counted one one thousand, two one thousand, three one thousand. Additionally, Respondent hopped during the evaluation and used his arms to maintain his balance. Petitioner’s behavior indicated that he was impaired.

7. Officer Alsobrooks then demonstrated to Respondent the stance for the walk-and-turn evaluation. Respondent was unsteady and unable to maintain balance while he performed the walk and turn; he used his arms for balance, stepped off the line, failed to touch heel to toe numerous times, made an improper turn, and failed to touch heel to toe in his return steps. Again his behavior indicated that he was impaired.

8. Officer Alsobrooks concluded that Respondent was too impaired to operate a motor vehicle and placed him under arrest. Respondent was transported to the Bay County Jail.

9. Upon arrival at the jail, Officer Alsobrooks had the Respondent complete the Implied Consent Warning form, waited for a 20-minute period of time and then escorted Respondent to the Intoxilyzer room to perform a breath test.

10. The first Intoxilyzer test failed due to the presence of mouth alcohol. Therefore, the Intoxilyzer machine did not return a result.

11. Officer Alsobrooks waited another 20 minutes before performing more Intoxilyzer tests. The tests were performed at three-minute intervals and indicated a blood alcohol level of

    .135, .167, and .159. Respondent offered no credible evidence to dispute these results. These results combined with Respondent's performance on the field tests demonstrated Respondent was unlawfully operating a motor vehicle while he was impaired in violation of Section 316.1932, Florida Statutes.

12. Upon the receipt of the results, Officer Alsobrooks issued a Florida DUI Uniform Traffic Citation No. 444309-X against Respondent, completed and signed a Breath Test Result Affidavit, an Alcohol Influence Report, and a narrative regarding Respondent’s arrest.

13. The criminal charges against Respondent resulted in a Plea Bargain Agreement in Absentia and an Order on Plea in Absentia by the Court. Respondent pled to reckless driving. The penalties included completing DUI school.

14. The evidence did not demonstrate that Respondent has had any other arrests or convictions of any crime. Nor did the evidence show that Respondent had more than one DUI or was habitually driving and drinking. No other evidence regarding Respondent’s moral character was offered by the Petitioner. Without such evidence, one DUI is insufficient to demonstrate that a person is of bad moral character or even raise a

    presumption that a person is of bad moral character. Therefore, the Administrative Complaint should be dismissed.

    CONCLUSION OF LAW

    
    

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

16. Petitioner has the burden of proof to 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).

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

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

    
    

18. 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. 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. perpetration by an officer that would constitute a felony whether prosecuted or not.

          
          

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or

          not: . . . 316.1932.

          
          

19. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1988), 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.

    
    

20. However, the court in Zemour also stated that one act or indiscretion may not demonstrate bad moral character. Indeed, in finding Mr. Zemour had not demonstrated that he was a person of good moral character, the court pointed to

    Mr. Zemour’s multiple violations of the law.

    
    

21. The Commission’s rules do not mandate that violation of Section 316.1932, Florida Statutes, automatically demonstrates bad moral character which leads to discipline. See

Rule 11B-27.0011(6), Florida Administrative Code. One DUI is factually insufficient to show that a person is not of good

moral character. See Zemour, supra; Bachynsky v. Department of Professional Regulation, 471 So. 2d 1305 (Fla. 1st DCA 1985); Wash & Dry Vending Co. v. Department of Business Regulation,

Division of Alcoholic Beverages & Tobacco, 429 So. 2d 790 (Fla. 3rd DCA 1983). Therefore, Petitioner has not shown by clear and convincing evidence that the Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and Rule 11B-27.001(4)(c), Florida Administrative Code.

RECOMMENDATIONS

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

RECOMMENDED that the Respondent be found not guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 28th day of July, 2003, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 28th day of July, 2003.

COPIES FURNISHED:

John W. Bradley 3555 Peony Lane

Greenwood, Florida 32443

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: 03-001130PL

Orders for Case No: 03-001130PL