STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 03-2499PL

)

TIMOTHY L. INGRAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on September 11, 2003.

APPEARANCES

For Petitioner: Laurie Beth Binder

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: William Chennault

Chennault Attorneys & Counsellors at Law Post Office Box 1097

Fort Lauderdale, Florida 33302-1097 STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit

prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).

PRELIMINARY STATEMENT

By Administrative Complaint dated August 11, 2000, Petitioner alleged that Respondent was a certified correctional officer. The Administrative Complaint alleges that, on December 8, 1999, Respondent unlawfully solicited a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002). The Administrative Complaint alleges that Respondent thus failed to maintain good moral character, in violation of Section 943.13(7), Florida Statutes (2002).

At the hearing, Petitioner called two witnesses and offered into evidence three exhibits: Petitioner Exhibits 1-3.

Respondent called one witness and offered into evidence one exhibit: Respondent Exhibit 1. Petitioner Exhibit 1 and Respondent Exhibit 1 were admitted. Petitioner Exhibit 2 was excluded, except for the statement of Respondent. Petitioner Exhibit 3 was excluded. Petitioner proffered the excluded material.

The court reporter filed the transcript on October 7, 2003.

Petitioner filed his Proposed Recommended Order on October 30, 2003. The Administrative Law Judge gave Respondent leave to file his proposed recommended order by November 5, 2003, which Respondent failed to file.

FINDINGS OF FACT

1. Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627.

2. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road.

3. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer.

4. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent.

5. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to

   their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him.

6. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.

   CONCLUSIONS OF LAW

   
   

7. 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 (2002). All references to Rules are to the Florida Administrative Code.)

8. Section 943.1395(6) provides that Petitioner shall revoke the certification of any person who is not in compliance with Section 943.13. Section 943.13(7) requires a person seeking a certificate to have good moral character.

9. Rule 11B-27.0011(4)(b) defines the failure to maintain good moral character to include: "The perpetration by an officer of an act that would constitute any of the following

   misdemeanor or criminal offenses whether criminally prosecuted or not: . . . 796.07 . . . F.S."

10. Section 796.07(2)(f) provides that it is unlawful for a person to "solicit . . . another to commit prostitution

    . . . ." Section 796.07(1)(a) defines "prostitution" as "the giving or receiving of the body for sexual activity for hire.”

11. 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).

12. Petitioner has proved that Respondent solicited the woman to commit the crime of prostitution, in violation of Section 796.07(2)(f) and, thus, has failed to maintain good moral character, as required by Sections 943.13(7) and 943.1395(6).

13. Although Section 943.1395(6) requires revocation, Section 943.1395(7) provides that Petitioner may impose a range of penalties for the failure of a certified officer to maintain good moral character. These penalties are revocation, up to two years' suspension, up to two years' probation, additional training, and the issuance of a reprimand.

14. Rule 11B-27.005(5)(b)8 provides the penalty of revocation for the commission of prostitution, absent mitigating

circumstances. The record is devoid of such circumstances, so the appropriate penalty is revocation.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate.

DONE AND ENTERED this 6th day of November, 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 November, 2003.

COPIES FURNISHED:

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services Post Office Box 1489

Tallahassee, Florida 32302-1489

Laurie Beth Binder Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

William Chennault

Chennault Attorneys & Counsellors at Law Post Office Box 1097

Fort Lauderdale, Florida 33302-1097

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: 03-002499PL

Orders for Case No: 03-002499PL