STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JIMMY OSBORNE, )

)

Respondent. )

Case No. 03-2391PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on August 22, 2003, in Winter Haven, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rules 11B- 27.0011(4)(a), 11B-27.0011(4)(b), and 11B-27.0011(4)(c), Florida

Administrative Code, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On December 6, 2002, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department), filed an Administrative Complaint against Respondent, Jimmy Osborne (Osborne), alleging that Osborne violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(a),

11B-27.0011(4)(b), and 11B-27.0011(4)(c), Florida Administrative Code. Osborne requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on

June 30, 2003, for assignment of an administrative law judge to conduct the final hearing.

The final hearing was scheduled to commence at 9:00 a.m. on August 22, 2003. Osborne was given notice of the final hearing. At 9:00 a.m. on the date of the final hearing, Osborne did not appear. The final hearing was delayed 30 minutes to give Osborne an opportunity to appear. At 9:30 a.m., when Osborne had not appeared and no one had appeared on his behalf, the final hearing commenced.

Official recognition was taken of Rule Chapter 11B-27 and Rule 11B-27.005, Florida Administrative Code.

At the final hearing, the Department called Sandra Cornell, James Allen, and Max Zagar as its witnesses. Petitioner's Exhibits 1 through 9 were admitted in evidence. No witnesses or exhibits were presented for Osborne.

The Department agreed to file its proposed recommended order within ten days of the filing of a transcript. The Transcript was filed on September 19, 2003. Neither party filed a proposed recommended order.

Statutory citations are to the Florida Statutes (2000) unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this proceeding, Osborne was employed as a police officer with the Winter Haven Police Department.

2. Approximately 15 times during 2001, Osborne picked up a prostitute, Sandra Cornell (Cornell), in his police vehicle and had sex with her while he was in his police uniform.

3. The first time Osborne picked up Cornell, he was in his police car parked near a church in Winter Haven, Florida. Cornell was walking down the street, and Osborne called her over to the police car and asked her what she was doing that night. She told him that she was trying to make some money, and he told her to get in the back seat of the car. She got in the vehicle, and he drove to a spot near Publix and a nursing home. He told

   her, "Nobody will bother a police car." They got out of the car, and she performed oral sex on him. Osborne paid her $10 and gave her some cigarettes.

4. The second time that she had sex with Osborne, he gave her $5. However, he discontinued paying Cornell for her services after their second encounter. Cornell continued to have sex with Osborne without payment, believing that he would arrest her if she did not continue to have sex with him.

5. Another time Osborne picked Cornell up in the parking lot of the Regency Inn and told her to get in the back of the police car and lie down. She did as she was told. Osborne drove them to a water tower near the Regency Inn, where they had sex.

6. Another time Osborne, while in his police uniform, picked Cornell up in the early morning hours and took her to Silver Lake in his police car. Osborne was on duty at the time. While the couple was having sex, Osborne received a police call. He left Cornell at Silver Lake so that he could respond to the call, and she had to walk back to town.

7. The Winter Haven Police Department conducted an Internal Affairs investigation of Osborne's activities with Cornell. On July 19, 2002, Osborne was interviewed under oath by Lieutenant Katy Goddard and Lieutenant Jim Allen. During the

   interview, Osborne was asked the following questions and gave the following answers under oath:

   Q. Have you ever rode uh Sandy Cornell in your patrol vehicle . . .

   A. No, I have not.

   Q. . . . let me finish the question--in an unofficial business?

   A. No.

   * * *

   Q. Have you ever had sex with Sandy Cornell on duty?

   A. No, I have not.

   Q. Have you ever had sex with Sandy Cornell off duty?

   A. No, I have not.

   
   

8. On December 6, 2002, the Department filed an Administrative Complaint against Osborne, alleging that the Criminal Justice Standards and Training Commission had issued Osborne an auxiliary law enforcement certificate and a law enforcement certificate on December 28, 1994. Osborne filed an elections of rights form on January 8, 2003, requesting an administrative hearing and disputing only the factual allegations dealing with having sexual relations with Cornell and soliciting another prostitute for sex. Osborne has not contested that he is a certified auxiliary law enforcement officer and a certified law enforcement officer.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this

   proceeding. Sections 120.569 and 120.57, Florida Statutes (2003).

10. The Department has the burden to establish by clear and convincing evidence that Osborne committed the violations alleged in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

11. The Department has alleged that Osborne has violated Subsection 943.13(7), which provides that an officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

12. The Department has alleged that Osborne has violated Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code, which provides:

    1. For purposes of the Criminal Justice Standards and Training Commission's implementation of any penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character is defined as:

       1. The perpetration by an officer of an act that would constitute any felony offense, whether criminally 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:

          1. Sections . . . 796.07, . . . F.S.

          * * *

       3. The perpetration by an officer of acts or conduct that constitute the following offenses: . . .

5. Engaging in sex while on duty, or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer.

* * *

1. Making a false statement(s) of fact, under oath, as to misconduct related to an agency duty with the intent to mislead or deceive. "Agency duty" means any duty as defined by the agency head, or his or her designee.

   
   

2. The Department alleged that Osborne had sexual relations with another while on duty, and the Department has established by clear and convincing evidence that while on duty Osborne had sexual relations with Cornell. Thus, the Department has established by clear and convincing evidence that Osborne failed to have good moral character as required by Subsection 943.13(7) and defined in Rule 11B-27.0011(4)(c)5., Florida Administrative Code.

3. The Department alleged that Osborne solicited Laura Greathouse (Greathouse) for prostitution. The Department has failed to establish this allegation by clear and convincing evidence. The only evidence presented relating to Greathouse was hearsay. Subsection 120.57(1)(c), Florida Statutes (2003), provides that hearsay evidence "shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Thus, the evidence presented is

   insufficient to establish that Osborne violated Rule 11B- 27.0011(4)(a), (b), or (c), Florida Administrative Code, concerning his activities with Greathouse.

4. The Department has established by clear and convincing evidence that Osborne made a false statement under oath as to misconduct related to his police officer duties with intent to deceive during his interview on July 19, 2002, when he stated he had not ridden with Cornell in his police vehicle and he had not had sex with Cornell. Such conduct constitutes a violation of Subsection 837.02(1), which makes it a felony for a person to make "a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter." Thus, the Department has established that Osborne failed to have good moral character as required by Subsection 943.13(7) and defined in Rule 11B-27.0011(4)(a), (b), and (c)(12), Florida Administrative Code.

5. The Department alleged that Osborne violated Subsection 943.1395(6), which provides:

   The commission shall revoke the certification of any office who is not in compliance with the provisions of s.

   943.13(4) or intentionally executes a false affidavit established in s. 943.13(8), s.

   943.133(2), or s. 943.139(2).

   
   

   Pursuant to Subsection 943.13(4), one of the minimum qualifications for the employment or appointment of a law

   enforcement officer is that the officer has not been convicted of any felony or misdemeanor involving perjury or a false statement. The Department did not establish that Osborne had been convicted of any crime involving perjury or that Osborne executed a false affidavit. Thus, the Department has failed to establish a violation of Subsection 943.1395(6).

6. Subsection 943.1395(7) establishes penalties for a violation of Subsection 943.13(7) and provides:

(7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

1. Revocation of certification.

2. Suspension of certification for a period not to exceed 2 years.

3. Placement on probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

5. Issuance of a reprimand.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Jimmy Osborne did not violate Subsection 943.1395(6); finding that Jimmy Osborne did violate Subsection 943.13(7) and

Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code; and revoking his certification as an auxiliary law enforcement officer and a law enforcement officer, pursuant to Subsection 943.1395(7).

DONE AND ENTERED this 9th day of October, 2003, in Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

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 9th day of October, 2003.

COPIES FURNISHED:

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

Jimmy Osborne

902 9th Street, Northeast Winter Haven, Florida 33881

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: 03-002391PL

Orders for Case No: 03-002391PL