19-006331PL Florida Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Kurn Tsuk Ho Lam Status: Closed Recommended Order on Thursday, April 2, 2020.

Summary: Petitioner did not prove that Respondent failed to maintain good moral character required of a law enforcement officer by knowingly and willfully failing to report suspected child abuse. The Administrative Complaint should be dismissed.

P RELIMINARY S TATEMENT

On September 19, 2018, the Florida Department of Law Enforcement

(Petitione r or the Department) filed an a dministrative c omplaint before the

Florida Criminal Justice Training and Standards Commission (Commission)

against Respondent, alleging that Respondent failed to maintain good moral

character required of law enforcement officers in violation of sections

943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Co de

R ule 11B - 27.0011(4)( a) because he f ailed to report suspected child abuse as

required by Sect. 39.205(1), Florida Statutes . 2 Respondent timely filed an

Election of Rights form disputing the allegations and requesting an

administrative hearing.

On Novem ber 26, 2019 , the Department referred the case to the Division

of Administrative Hearings (DOAH) for assignment of an administrative law

judge. The case was assigned to the undersigned and scheduled for an

administrative hearing to be held live in Pensacol a on January 24, 2020 .

During the hearing, Petitioner presented the testimony of Jordan

Hoffman , provided two Ñdemonstrative aidsÒ (consisting of a family tree and

timeline), and offered six exhibits marked as Petitioner's E xhibits A (a child

protective t eam interview) , B (an internal affairs investigative report) ,

C (various transcribed investigative interviews), D ( audible recordings of the

transcribed interviews in PetitionerÔs Exhibit C ), E (Panama City Police

DepartmentÔs General Order 410.00 with rec ords show ing that Respondent

2 A ll references to the Florida Statutes and Florida Admini strative Code are , unless

otherwise specified, to the 2017 versions which were in effect at the time of the alleged

violation . Although there have been some changes, the applicable portions of the current

laws and rules have not substantively changed since the time of the alleged incidents

forming the basis of the administrative complaint against Respondent in this case.

reviewed that general order), and F ( a composite exhibit marked PetitionerÔs

Exhibit F, consisting of judgment and probationary sentences imposed upon

dated November 21, 2018, and dated

December 20, 2018, for contributing to the delinquency of a minor, and the

Order of Delinquency Disposition withholding adjudication of delinquency

and imposing juvenile probation on D.G. dated June 25, 2019, for a charge of

felony battery under section 784.041(1), Florida Statutes.)

PetitionerÔs Exhibits A through D were considered hearsay and were not

received into evidence except to the extent that they reflect statements of

Respondent or corroborate non-hearsay evidence. The DepartmentÔs mere

certification of the exhibits as Ñbusiness recordsÒ does not , ipse dixit, convert

the exhibits into the business records that would qualify for an exception to

the hearsay rule. Rather, the exhibits were primarily prepared in the

anticipation of litigation and are replete with hearsay. 3 Exhibit E was

received into evidence, and official recognition was taken of Exhibit F.

Respondent testified on his own behalf and offered one composite exhibit

r eceived into evidence as R- 1, consisting of four letters attesting to

RespondentÔs good character.

3 See, e.g., M.S. v. DepÔt of Child. & Fams ., 6 So. 3d 102, 104 (Fla. 4th DCA 2009 )(i n

ruling that investigative reports not based on personal knowledge do not meet the business

records exception to the hearsay rule, observed in Reichenberg v. Davis , 846 So. 2d 1233

(Fla. 5th DCA 2003) , the court held that records of DCF could not be admitted into evidence

as a business record because the records contained witness statements made to investigators,

the substance of which was not within the personal knowledge of the agency employee. On

the same rationale, the records could not be admitted as a public record under section

90.803(8) . See Lee v. Dep't of Health & Rehab. Servs ., 698 So. 2d 1194, 1200-01 (Fla. 1997) .

Moreover, if "a record is made for the purpose of preparing for litigation, its trustworthiness

is suspect and should be closely scrutinized." King v. Auto Supply of Jupiter, Inc. , 917 So. 2d

1015, 1019 (Fla. 1st DCA 2005) (quoting Professor Ehrhardt comments, § 803.6 at 786, Flor.

Evidence (2004)).

The proceedings were recorded and a transcript was ordered. The parties

were given 30 days from the filing of the transcript within which to file

proposed recommended orders. The one-volume Transcript was filed on

February 12, 2020, and the parties timely filed their respective Proposed

Recommended Orders, both of which were considered in preparing this

Recommended Order.

F INDINGS OF F ACT

1. Respondent was certified as a Law Enforcement Officer in the State of

Florida by the Commission on August 3, 2017, and issued Law Enforcement

Certification #344454. He was employed at age 23 by the Panama City Police

Department in the beginning of 2018, prior to the events that are the subject

of this proceeding .

2. As an employee of the Panama City Police Department, Respondent

was required to review General Orders promulgated by his agency, to include

General Order 410.00 which mandates that "all members of the Panama City

Police Department shall report any known or suspected child abuse in

accordance with F.S.S. 39.201." Respondent reviewed and was familiar with 4

General Order 410.00, which defines child abuse as "any willful act or

threatened act that results in any physical, mental, or sexual injury or

harm."

3. In February 2018, T.M., a seven-year-old minor, lived in a home with

her guardians, , and their child D.G., who was a

17 -year-old minor at the time.

4. T.M. is

5.

.

4 On January 25, 2018, Respondent electronically signed that he reviewed Panama City

Police Department's General Order 410.00.

6. At all pertinent times, Respondent had the understanding that T.M.

was living with because she had been sexually

molested by her father when she was three-years old, and that her natural

father and mother were in prison.

7. Acco rding to investigative reports and interviews , on or about Thursday

night, February 8, 2018, while were at the hospital

visiting a relative, D.G. licked his finger and put it in T.M.Ôs vagina. The

reports further inform that, upon their return home, the next morning ,

February 9, 2018, T.M. told what D.G. purportedly

did.

8. Two days later, Sunday, February 11, 2018, called

Respondent and advised him that, based on conversations that

had with D.G. and his wife, T.M. had said that she had a dream that someone

was touching her Ñdown there.Ò

9. told Respondent that, according to D.G., D.G. was up late

on the night of the incident when he heard T.M. scream, and that when D.G.

went to check on her, she associated the person who she was dreaming about

with D.G.

10. During the telephone conversation, further advised

Respondent that T.M. was seeing a counselor because she had recurrent

night terrors as a result of being molested by her natural father years before.

also told Respondent during that phone call that

had stated that D.G. might need to be arrested. At the time ,

Respondent believed that the incident with T.M. had occurred the night

before he received the February 11 th phone call from , i.e., on

February 10, 2018.

11. At the hearing, Respondent credibly explained his perspective derived

from his February 11, 2018, telephone conversation with :

So following that conversation, I asked if he wanted

to report this, which he said no, and he seemed

uncertain if anything did happen, so I had no

reasonable suspicion to actually [sic] upon, because

heÔs telling me something he was told by someone,

who heÔs not even sure about what to do, and I

advised him, because she already seeks counseling

for this, you know, night terrors, that thatÔs what

he should do, take it to a medical professional to

determine if anything did happen.

12. Respondent believed that, the next day, Monday, February 12, 2018,

took T.M. to see her counselor, and that the incident had been

reported. That understanding is consistent with PetitionerÔs timeline, which

st ates that the Department of Children and Families was notified about the

incident involving T.M. on Tuesday, February 13, 2018.

13. On Tuesday, February 13, 2018, D.G. moved

becaus e ,

that the counselor advised that D.G. could not live in the same house with

T.M. during the investigation. D.G. spent the nights of Tuesday, February 13,

and Wednesday, February 14, 2018, with and

their 10- mo nth-old daughter.

14. Respondent explained during his sworn interview at the Panama City

Police Department on Thursday, February 15, 2018:

. . . .

15. On Thursday, February 15, 2018, while both and D.G.

were at home, D.G. asked to take him to the police

station. Apparently, D.G. had been contacted by the police and was asked to

come to the police station.

16. called his wife, who was on the way back from a job

interview in the coupleÔ s only car , and told her they needed to take D.G. to

the police station. After wife arrived home, , D.G. ,

and wife got into the car, with wife driving, and

headed to the police station. On the way, wife talked to

and on the phone and became emotional about taking

to the police station. At some point, she stopped the car and switched

places with Respondent, and Respondent drove them the rest of the way to

the Panama City Police Department.

17. That same day, February 15, 2018, the Panama City Police conducted

sworn interviews with wifeÔs

sister, and regarding the allegations and

reporting of allegations against D.G. 5 were

arrested for not properly reporting T.M.'s accusation. 6 D.G. was arrested for

inappropriately touching T.M. 7

18. The next day, February 16, 2018, law enforcement officers from the

Panama City Poli ce Department and Bay County SheriffÔs Department came

to RespondentÔs ho use and had him sign papers stating that he was being

5 There may have been other interviews in connection with the case that day, but these

were the only interviews that were marked and offered as exhibits in this case.

6 On those charges, both ultimately pled no contest to

a misdemeanor charge of contributing to the delinquency of a minor, for which each was

adjudicated guilty, received 12 monthsÔ probation , was required to pay fines and fees, and

had to perform 50 hours of community service.

7 D.G. pled nolo contendere as a minor to a charge of felony battery under section

784.041(1), and on June 25, 2019, an Order of Delinquency Disposition was entered

withholding adjudication of delinquency and imposing juvenile probation on D.G., including,

inter alia , 75 hours of community service.

terminated from his job as a police officer . They took all of RespondentÔs

police equipment and arrested him for failure to repor t child abuse.

19. After his arrest for failure to report child abuse , Respondent spent one

day in jail . Respondent was offered, and he accepted, a pretrial intervention

consisting of 12 months of probation and 100 hours of community service.

RespondentÔs probation was ended early and the charge against him for

failure to report child abuse was nolle prossed.

20. The four letters submitted by Respondent are all positive letters

reflecting his honesty and good moral character. The DepartmentÔs counsel

stipul ated that the letters could be considered as favorable mitigating factors

for Respondent.

21. The witness called by Petitioner suggested that Respondent may have

been withholding information during his police interview on February 15,

2018. However, upon r eview of the transcript of that interview, as well as

considering RespondentÔs testimony and demeanor during the final hearing

in this case, it is found that his testimonies regarding this matter were

honest and credible.

C ONCLUSIONS OF L AW

22. The Divisi on of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. See §§ 120.569, 120.57(1),

120.60(5), and 943.1395(8)(e), Fla. Stat. (2019).

23. Petitioner is responsible for prosecuting disciplinary cases against

cer tified law enforcement officers. See §§ 943.12 and 943.1395, Fla. Stat.

(2019).

24. Petitioner , as the party asserting the affirmative in this proceeding,

has the burden of proof. See, e.g., Balino v. DepÔt of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977). Becau se Petitioner is seeking to prove violations of a

statute and impose administrative fines or other penalties, it has the

burden to prove the allegations in the complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). Cl ear and

convincing evidence:

[r]equires that evidence must be found to be

credible; the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the witnesses

must be lacking confusion as to the fac ts in issue.

The evidence must be of such weight that it

produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the

truth of the allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)( q uoting Slomowitz v.

Walker , 429 So. 797, 800 (Fla. 4th DCA 1983)).

25. In determining whether Petitioner has met its burden of proof, the

evidence presented should be evaluated in light of the specific factual

allegations in the administrative complaint. D isciplinary actions against

licensees may only be based u pon those offenses specifically alleged in the

charging document. See, e.g., Trevisani v. Dep't of Health , 908 So. 2d 1108

(Fla. 1st DCA 2005).

26. The charging instrument in the instant case, the Ad ministrative

Complaint, alleges that Respondent:

violated the provisions of Section 39..205(1), or

any lesser included offenses, Section 943.1395(7),

Florida Statutes and Rule 11B - 27.0011(4)(a),

Florida Administrative Code, in that Respondent

has failed to maintain the qualifications

established in Section 943.13(7), Florida Statutes,

which require that a Law Enforcement officer in

the State of Florida have good moral character.

27. Disciplinary statutes are penal in nature and must be construed

against the authorization of discipline and in favor of the individual sought

to be penalized. Munch v. DepÔt of Bus. & ProfÔl Reg., 592 So. 2d 1136

(Fla. 1st DCA 1992). Penal statutes must be construed in terms of their

literal meaning, and words used by the Legi slature may not be expanded to

broaden the application of such statutes. Thus, the provisions of law upon

which this disciplinary action has been brought must be strictly construed,

with any ambiguity construed against Petitioner. Elmariah v. DepÔt of Bus.

& ProfÔl Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st DCA 2011);

Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008);

Whitaker v. DepÔt of Ins. , 680 So . 2d 528, 531 (Fla. 1st DCA 1996); Dyer v.

DepÔt of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

28. Section 943.1395(7) subjects a certified officer to discipline Ñ[u ]pon 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) . . . .Ò

29. Rule 11B - 27.0011(4)(a), provides:

(4) For the purposes of the Criminal Justice

Standards and Train ing CommissionÔs

implementation of any of the penalties specified in

section 943.1395(6) or (7), F.S., a certified officerÔs

failure to maintain good moral character required

by section 943.13(7), F.S., is defined as:

(a) The perpetration by an officer of an act that

would constitute any felony offense, whether

criminally prosecuted or not.

30. Section 39.201 ( 1)(c) , Florida Statues , states:

Any person who knows, or has reasonable cause to

suspect, that a child [ 8 ] is the victim of childhood

sexual abuse [ 9 ] shall report such knowledge or

suspicion to the department [ 10 ] . . . .

8 Sec tion 39.01(12) defines a child as: "any unmarried person under the age of 18 years

who 9 has not been emancipated by order of the court."

Sec tion 39.01(2) defines abuse as:

Any willful act or threatened act that results in any physical,

mental, or sexual abuse, injury or harm that causes or is

likely to cause the child' s physical, mental o r emotional

health to be significantly impaired.

10 As used in Chapter 39, " d epartment" means the Depar tment of Children and Families.

31. Sect ion 39.205(1) provides that:

A person who is required to report known or

suspected child abuse, abandonment, or neglect,

and who knowingly and willfully fails to do so, or

who kno wingly and willfully prevents another

person from doing so, commits a felony of the third

degree . . . .

32. As explained in Urquhart v. Helmich, 947 So.2d 539, 542 - 43 (Fla. 1 st

DCA 2006):

The phrase "reasonable cause" is used in section

39.201, Florida S tatutes to describe a legal

standard, and in this respect, it is no different from

legal standards that are appl ied in other areas of

the law. For example, the existence of reasonable

suspicion to justify temporary detention is a

question of law, as is the existence of probable

cause to search a person. As with these standards,

reasonable cause to suspect child abuse either

exists on the facts known to the person taking the

action or it does not.

* * *

The question is not whether child abuse actually

oc curred, but whether there was reasonable cause

to suspect that it had occurred. That is a question

that can only be answered by considering the facts

that were know at the time the report was made.

33. In Urquhart, the court held that a Ñdoctor may have r easonable cause

to suspect that a child has been abused, even though the parent has given an

innocent explanation for the child's injuries." There, the doctor was facing a

lawsuit by the parents who claimed that the doctor had w rongfully reported

child abu se. In that case, the doctor ma de the child abuse report after her

review of a radiologist report from a CT scan the doctor had ordered which

reported a skull fracture Ñcaused either by child abuse or by birth trauma.Ò

Id. at 540- 43.

34. Unlike the facts known to the doctor in Urquhart , who had actually

examined the infant, the facts known to Respondent in the case- at -bar

regarding potential child abuse were much more attenuated. Respondent did

not see or talk to T.M. from the time called him o n

Feb ruary 11, 2018, until Respondent was arrested on February 16, 2018.

35. Respondent received all of the information regarding the alleged

incident from , who reported that T.M. had recurrent night

terrors because of abuse she had suffered from her father three years before ,

and further told Respondent that D.G. had explained that T.M. confused him

with the person in her dream. 11

36. Since Respondent was told that T.M. was seeing a counselor for her

night terrors, he suggested that take T.M. to the counselor to

determine if anything actually happened. As a result of RespondentÔs

suggestion, T.M. was taken to the counselor, the incident was reported to the

Department of Children and Families on February 13, 2018, and an

investigation of the incident was undertaken.

37. While the fact that someone else reports suspected child abuse does

not excuse others from failing to report known or reasonably suspected child

abuse, see e.g. , Barber v. State, 592 So. 2d 330 (Fla. 2 nd DCA 1992)(analyzing

the prior version of section 39.201 found in section 414.505, Florida Statutes

(1991), "even if an incident of child abuse is determined to have already been

reported to the abuse registry, the statute requires the incident to be

reported to the abuse registry again"), that fact does not negate RespondentÔs

proactive advice resulting i n T.M.Ôs evaluation by a health care professional

and the February 13, 2018, report of the allegations to the Department of

11 As explained in Urquhart , although an innocent explanation from a parent might not

negate reasonable suspicion, Ñthe history given by the parent is only one factor the doctor

must rely on in assessing the likely cause of the injury.Ò Id.

Children and Families. In addition, objectively, considering the facts known

to Respondent at the time, it cannot be concluded, as a matter of law, that

Respondent knew or had reasonable cause to suspect that child abuse had

occurred.

38. Moreover, the fact that Respondent

demonstrates that Respondent did not, subjectively, know or have reason to

believe that D.G. had sexually abused T.M., and supports the conclusion that

Respondent did not knowingly or willfully violate the law.

39. And, while rule 11B- 27.0011(4)(a) pertains Ñwhether criminally

prosecuted or not,Ò the fact that the criminal charge against Respondent for

failure to report was nolle prossed cannot be ignored -- especially in light of the

evidence presented in this case, which was insufficient to clearly and

convincingly demonstrate that the facts known to Respondent, as a matter of

law, gave him the knowledge or reasonable cause to suspect that child abuse

had occurred. In other words, Petitioner failed to prove that Respondent

knowingly and willfully failed to report known or suspected child abuse in

violation of sections 39.201 or 39.205.

40. As the evidence was insufficient to prove that Respondent failed to

report known or suspected child abuse, it was also insufficient to show that

Respondent failed to maintain good moral character in violation of sections

943.1395(7) or 943.13(7), or rule 11B-27.0011(4)(a).

41. In addition, the four letters submitted by Respondent, all of which are

positive letters reflecting his honesty and good moral character, as well as his

testimony and demeanor in this case, weigh in favor of RespondentÔs good

moral character.

42. In sum, the Department failed to prove the allegations of the

Administrative Complaint by clear and convincing evidence.

R ECOMMENDATION

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

R ECOMMENDED that a f i n a l o rd e r b e en t e r e d d is m iss in g t h e Ad m inistr a t ive

C o mp la i n t.

D ONE A ND E NTERED this 2nd day of April, 2020 , in Tallahassee, Leon

County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April , 20 2 0.

C OPIES F URNISHED :

Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement

P ost Office Box 1489

Tallahassee, Florida 32302

(eServed)

Kurn T su k Ho Lam

(Address of record - eServed)

Dean Register, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tall ahassee, Florida 32302

Jason Jones, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.