STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 05-0864PL

)

DAVID RENDON, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 17, 2005, by video teleconference, with the parties appearing in West Palm Beach, Florida, and Tallahassee, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: H.R. "Bob" Bishop, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated March 9, 2001, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission ("Commission"), alleged that David Rendon had touched a child under 16 years of age in a lewd and lascivious manner and that he was adjudicated guilty of two counts of battery. The Commission charged that Mr. Rendon's actions violated Sections 784.03 and 800.04(6), Florida Statutes; Section 943.1395(6) and/or (7), Florida Statutes; and/or Florida Administrative Code Rule 11B-27.011(4)(a) and/or (b), and that he, therefore, failed to maintain the good moral character required by Section 943.13(7), Florida Statutes, for Florida correctional and law enforcement officers. Mr. Rendon requested an administrative hearing to resolve disputed issues of material fact, and the Commission forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was conducted on May 17, 2005.

At the hearing, the Commission presented the testimony of Kimberly Ann Sturtz, Sheila Ann Smith, and Detective James

Clayton Watkins, and Petitioner's Exhibits 1 through 4 were offered and received into evidence. Mr. Rendon testified in his own behalf and presented the testimony of Rafael Duran; Respondent's Exhibit 1 was offered and received into evidence.

At the request of the Commission, official recognition was taken of Florida Administrative Code Rule 11B-27.0011 (1999).1 At the conclusion of the hearing, the Commission made an ore tenus motion requesting that the record be held open to allow it to supplement the record with an audiotape which purportedly contained an interview given by Mr. Rendon to the investigator in his case; on May 18, 2005, however, the Commission filed a notice withdrawing this motion.

The transcript of the proceeding was filed with the Division of Administrative Hearings, and the Commission timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order. Mr. Rendon did not file a post-hearing submittal.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Commission is the state agency responsible for certifying and revoking the certification of law enforcement

   officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004).

2. Mr. Rendon is a Florida-certified law enforcement and corrections officer.

3. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother.

4. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age.

5. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home.

6. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone.

7. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when

   he paged them, so they would know to call him back. He frequently paged Kimberly during the day.

8. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and

   Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard.

9. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time

   Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home.

10. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he

    kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did.

11. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers.

12. Ms. Sturtz was 14 years old at the time of this incident.

13. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes.

14. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

16. In its Administrative Complaint, the Commission seeks to impose disciplinary action against Mr. Rendon that could include suspension or revocation of his certification as a law enforcement officer. Therefore, it has the burden of proving by clear and convincing evidence that Mr. Rendon committed the violations alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Clear and convincing evidence is the proper standard in license revocation proceedings because they are penal in nature and implicate significant property rights. Dept. of

    Banking and Finance v. Osbourne Stern & Co., 670 So. 2d 932, 935

    (Fla. 1996). Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

18. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

    Judge Sharp, in her dissenting opinion in Walker v. Florida

    
    

    Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), observed:

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano,

    696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of

    fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

    
    

19. The Commission charged in the Administrative Complaint that Mr. Rendon failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (1999), which provided in pertinent part:

    On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization Commission shall:

    
    

    * * *

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

20. The Commission further charged that Mr. Rendon violated Section 943.1395(6) and/or (7), Florida Statutes (1999), which provided in pertinent part:

    Certification for employment or appointment; concurrent certification; reemployment or reappointment; inactive status; revocation; suspension; investigation.--

    
    

    * * *

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

       s. 943.13(4)[3] or who intentionally executes a false affidavit established in

       s. 943.13(8), s. 943.133(2), or

       s. 943.139(2).

       
       

       * * *

       
       

    2. 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 a 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.

       
       

21. The Commission enacted Florida Administrative Code Rule 11B-27.0011 to carry out the legislative requirement that it define good moral character. The Commission charged in the Administrative Complaint at issue herein that Mr. Rendon

    violated Florida Administrative Code Rule 11B-27.0011(4)(a) and/or (b). The version of Florida Administrative Code Rule 11B-27.0011 in effect at the time relevant to this proceeding provided in pertinent part:

    (1) For the purpose of certification, employment, or appointment, pursuant with procedures established by Rule 11B-27.002, F.A.C., the employing agency is responsible of conducting a thorough background investigation to determine the moral character of an applicant, pursuant to Section 943.13(7), F.S.

    
    

    * * *

    
    

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:

       
       

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.

          
          

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: . . . 784.03.

    
    

22. The Commission failed to prove by clear and convincing evidence that Mr. Rendon committed the acts prohibited in Section 943.1395(6), Florida Statutes (1999). The Commission did, however, prove by clear and convincing evidence that

    Mr. Rendon failed to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4)(a) and (b).

23. Section 800.04, Florida Statutes (1999), defined "lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age" and provided in pertinent part:

    1. DEFINITIONS.--As used in this section:

       
       

       * * *

       
       

       (b) "Consent" means intelligent, knowing, and voluntary consent, and does not include submission by coercion.

       
       

       * * *

       
       

       (d) "Victim" means a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer.

       
       

    2. PROHIBITED DEFENSES.--Neither the victim's lack of chastity nor the victim's consent is a defense to the crimes proscribed by this section.

    
    

    * * *

    
    

    1. LEWD OR LASCIVIOUS CONDUCT.--

       
       

       1. A person who:

          
          

          1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or

          2. Solicits a person under 16 years of age to commit a lewd or lascivious act

          
          

          commits lewd or lascivious conduct.

       2. An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082,

          s. 775.083, or s. 775.084.

          
          

       3. An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082,

    s. 775.083, or s. 775.084.

    
    

24. The court in Fretwell v. State. 852 So. 2d 292, 292 (Fla. 4th DCA 2003), defined "lewd and lascivious," as those terms are used in Section 800.04, Florida Statutes, as follows: "The terms lewd and lascivious are indicative of sexual conduct, and are 'synonyms that connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.'" (Citations omitted.) Based on the findings of fact herein, the Commission proved by clear and convincing evidence that

    Mr. Rendon engaged in lewd and lascivious conduct with

    
    

    Ms. Sturtz, which is classified as a felony in Section 800.04, Florida Statutes (1999).

25. Section 784.03, Florida Statutes (1999), defined the offense of battery as follows:

    (1)(a) The offense of battery occurs when a person:

    
    

    1. Actually and intentionally touches or strikes another person against the will of the other; or

       
       

    2. Intentionally causes bodily harm to another person.

    
    

    (b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.[4]

    Simple, misdemeanor battery is a lesser-included offense of lewd or lascivious conduct, see Sherrer v. State, 898 So. 2d 260, 261

    n.1 (Fla. 1st DCA 2005), and, therefore, by proving by clear and convincing evidence that Mr. Rendon committed the act of lewd and lascivious conduct with Ms. Sturtz, the Commission has also proved by clear and convincing evidence that Mr. Rendon committed a violation of Section 784.03.

26. The Commission has satisfied its burden of proving by clear and convincing evidence that Mr. Rendon committed actions that violated the requirement of good moral character in Section 943.13(7), Florida Statutes (1999).

27. Section 943.1395, Florida Statutes (1999), provided in pertinent part:

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

    
    

    (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the

    public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

    
    

    * * *

    
    

    (e) An administrative law judge assigned to conduct a hearing under ss. 120.569 and 120.57(1)(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with,

    s. 943.13(4) or (7) must, in his or her recommended order:

    
    

    1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and (7) and the rules adopted by the commission for the type of offense committed.

       
       

    2. Specify, in writing, any aggravating or mitigating circumstance that he or she considered in determining the recommended penalty.

    
    

    Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation of the penalty. Any deviation from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the administrative law judge.

    
    

28. In Florida Administrative Code Rule 11B-27.005, the Commission has established the range of penalties that may be imposed when a law enforcement officer has committed an act that violates Section 943.13(7). The pertinent provisions of

    Rule 11B-27.005 in effect at the time material to these proceedings were as follows:

    1. 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:

       
       

       1. For the perpetration by the officer of an act which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there was 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. . . .

          
          

       2. For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from, probation of certification to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following:

    
    

    * * *

    
    

    2. Battery (784.03, F.S.) Suspension of certification.

    
    

29. Under the circumstances herein, and given that revocation is within the range of penalties provided in Section 943.1395(7), Florida Statutes (1999), and in Florida

Administrative Code Rule 11B-27.005(5)(a), it is concluded that Mr. Rendon's certification as a law enforcement officer should be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked.

DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

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 30th day of June, 2005.

ENDNOTES

1/ At the request of the undersigned, the Petitioner filed and served subsequent to the hearing a copy of Florida Administrative Code Rule Chapter 11B-27 in effect at the time of the acts alleged in the Administrative Complaint.

2/ Mr. Rendon denied all of the material allegations against him in his testimony at the hearing. His testimony has been

carefully considered, as has the testimony of Ms. Sturtz and all of the relevant evidence presented by both parties in this proceeding. After evaluating the testimony of Mr. Rendon and of Ms. Sturtz and observing the demeanor of these witnesses, the undersigned has determined that the testimony of Ms. Sturtz is the more persuasive.

3/ Section 943.13(4), Florida Statutes (1999), required in pertinent part that a law enforcement officer not have been "convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States." The Commission failed to submit any evidence against Mr. Rendon to support a violation of this statutory section.

4/ Subsection (2) of Section 784.03 is not applicable to Mr. Rendon.

COPIES FURNISHED:

Bob Bishop, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

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

Guy M. Tunnell, Commissioner 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

Michael Crews, Program Director Division of Criminal Justice

Professional Services 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: 05-000864PL

Orders for Case No: 05-000864PL