95-004021RX Burton B. Griffin And Michael N. Padgett vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed DOAH Final Order on Friday, October 20, 1995.

Summary: Definition of good moral character deemed to be valid exercise of delegated legal authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BURTON B. GRIFFIN and )

MICHAEL N. PADGETT, )

)

Petitioners, )

)

vs. ) CASE NO. 95-4021RX

)

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Respondent. )

___________________________)

FINAL ORDER

This matter came before the Division of Administrative Hearings for the

entry of a Final Order by its assigned Hearing Officer, Donald R. Alexander.

The parties have agreed to waive an evidentiary hearing.

APPEARANCES

For Petitioners: T. A. Delegal, III, Esquire

5530 Beach Boulevard

Jacksonville, Florida 32207

For Respondent: Marty E. Moore, Esquire

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Rule 11B-27.001(4)(c)1.-4., Florida

Administrative Code, constitutes an invalid exercise of delegated legislative

authority.

PRELIMINARY STATEMENT

This matter began on August 10, 1995, when petitioners, Burton B. Griffin

and Michael N. Padgett, both certified as law enforcement officers, filed a

petition challenging the validity of Rule 11B-27.0011(4)(c), Florida

Administrative Code. The rule is administered by respondent, Criminal Justice

Standards and Training Commission. In their petition, petitioners contended

that the rule "creates an impermissibly broad definition of moral character," is

"impermissibly vague," "impermissibly delegates policy decisions as to what is

prohibited to those applying the rule," "exceeds the rulemaking authority

granted by sect. 943.1395(7), Fla. Stats. (1995)," and "exceeds the legislative

intent evidenced by sections 943.1395(8)(a) and (b), Fla. Stats (1995)." After

being examined for legal sufficiency, the petition was assigned to the

undersigned hearing officer on August 14, 1995.

By notice of hearing dated August 15, 1995, a final hearing was scheduled

on September 13, 1995, in Tallahassee, Florida. The parties then agreed that no

factual matters were in dispute and that an evidentiary hearing was unnecessary.

Thereafter, proposed findings of fact and conclusions of law were filed by the

parties on October 2, 1995. A ruling on each proposed finding is found in the

Appendix attached to this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are

determined:

A. Background

1. Petitioners, Burton B. Griffin and Michael N. Padgett, are certified

law enforcement officers employed by the Duval County Sheriff's Office. Both

officers are the subject of outstanding administrative complaints filed against

them in December 1993 and March 1994, respectively, by respondent, Criminal

Justice Standards and Training Commission (Commission). Those cases are now

docketed with the Division of Adminstrative Hearings as Case Nos. 94-2909 and

94-2911, respectively.

2. After considerable delays by the parties, the two complaints are now

scheduled to be heard in December 1995. They seek to discipline petitioners'

law enforcement certifications and allege that on October 27, 1992, petitioners

violated "Sections 943.1395(6), (7) and 943.13(7), Florida Statutes, and Rule

11B-27.001(4)(a) and/or (c), Florida Administrative Code." Specifically,

Griffin is charged with unlawfully possessing two crack cocaine pipes and

unlawfully and knowingly falsifying, or causing another to falsify, an arrest

and booking report. Padgett is charged with unlawfully possessing a crack

cocaine pipe and unlawfully possessing crack cocaine. It is agreed that

petitioners have standing to initiate this proceeding.

3. On August 10, 1995, petitioners filed a petition challenging the

validity of Rule 11B-27.001(4)(c), Florida Administrative Code, on a number of

grounds. That portion of the rule in its entirety reads as follows:

(4) For the purposes of the Commission's

implementation of any of the penalties

enumerated in Rule (sic) subsection 943.1395(6)

or (7), F.S., a certified officer's failure to

maintain good moral character, as required by

Rule (sic) subsection 943.13(7), is defined as:

* * *

(c) The perpetration by the officer of an

act of conduct which:

1. significantly interferes with the rights

of others; or

2. significantly and adversely affects the

functioning of the criminal justice system or

an agency thereof; or

3. shows disrespect for the laws of the

state or nation; or

4. causes substantial doubts concerning the

officer's moral fitness for continued service; or

5. engage in conduct which violates the standards

of test administration, such as communication with

any other examinee during the administration of

the examination; copying answers from another

examinee or intentionally allowing one's answers

to be copied by another examinee during the

administration of the examination in accordance

with Rule 11B-30.009(3)(b), F.A.C.; or

6. engage in any other conduct which subverts

or attempts to subvert the CJSTC, criminal

justice training school, or employing agency

examination process in accordance with Rule

11B-30.009(2), F.A.C.

In their proposed order, however, petitioners suggest that only paragraphs 1.

through 4. are being challenged. The undersigned will accordingly assume that

only that portion of the rule is in issue.

B. Is the Rule Invalid?

a. The allegations

4. Without correlating their allegations in the petition to the statutory

grounds in Section 120.52(8), Florida Statutes, Griffin and Padgett alleged that

rule 11B-27.0011(4)(c)1.-4. is an invalid exercise of delegated legislative

authority on the grounds the rule (a) "creates an impermissibly broad definition

of moral character offenses, prohibiting conduct which is protected by an

officer's constitutional rights to free speech, association, and privacy," (b)

"fails to provide a person of ordinary intelligence a reasonable opportunity to

know what is prohibited, and thus is impermissibly vague," (c) "impermissibly

delegates policy decisions as to what is prohibited to those applying the rule,

and requires them to make determinations on an ad-hoc basis with the danger of

arbitrary and discriminatory application," (d) exceeds its rulemaking authority

by creating "an impermissibly broad definition of moral character offenses,

rather than creating a statewide standard," and (e) "exceeds the legislative

intent" in Sections 943.1395(8)(a) and (b), Florida Statutes, by "creating a

vast range of prohibited activities," thus preventing "the promulgation of

penalties for possible infractions."

5. The source of authority for the rule is Section 943.12(1), Florida

Statutes, which authorizes the Commission to "(p)romulgate rules for the

administration of ss. 943.085-943.255 pursuant to chapter 120." The specific

laws being implemented are Sections 943.13(7) and 943.1395(7), Florida Statutes.

The former statute requires that all law enforcement officers "(h)ave a good

moral character as determined by a background investigation under procedures

established by the commission," while the latter statute requires, among other

things, that the commission, by an established "statewide standard," adopt a

rule defining the term "good moral character."

b. Does the rule exceed the agency's rulemaking authority?

6. The source of authority for adopting the challenged rule is found in

Section 943.12(1), Florida Statutes. As noted above, that statute authorizes

the Commission to adopt "rules for the administration of" various provisions

within chapter 943, including section 943.1395(7). The latter statute requires

that the Commission establish "as a statewide standard" a rule definition of the

term "good moral character." Because the rule on its face purports to

administer the terms of section 943.1395(7), and it uniformly applies to all law

enforcement officers on a statewide basis, the rule is not deemed to exceed the

Commission's rulemaking authority.

c. Does the rule conflict with "legislative intent?"

7. In their petition, Griffin and Padgett allege that the rule "exceeds

the legislative intent" in Sections 943.1395(8)(a) and (b), Florida Statutes, by

"creating a vast range of prohibited activities," thereby preventing "the

promulgation of penalties for possible infractions." In correlating this

allegation to the pertinent statutory ground, the undersigned assumes that

petitioners are alleging that the rule enlarges, modifies or contravenes the

specific laws being implemented. Although the rule does not cite sections

943.1395(8)(a) and (b) as the laws being implemented, the allegation will

nonetheless be considered.

8. Petitioners submitted no extrinsic evidence concerning the legislative

intent of the cited statutes. Even so, paragraph (a) simply requires that the

Commission adopt, by rule, "disciplinary guidelines and procedures for

implementing the penalties provided in subsections (6) and (7)" while paragraph

(b) requires that any guidelines adopted "provide reasonable and meaningful

notice to officers and the public of penalties that may be imposed for

prohibited conduct." Since there is no facial conflict between the rule and the

statutory provisions, the contention is hereby rejected.

d. Is the rule vague?

9. Paragraphs (4)(c)1.-4. define "good moral character" as "(t)he

perpetration by the officer of an act or conduct" which:

1. significantly interferes with the rights

of others; or

2. significantly and adversely affects the

functioning of the criminal justice system or

an agency thereof; or

3. shows disrespect for the laws of the state

or nation; or

4. causes substantial doubts concerning the

officer's moral fitness for continued service;

Petitioners claim that this language is impermissibly vague on its face since

persons of ordinary intelligence must guess at its meaning.

10. Paragraph 1. simply prohibits a law enforcement officer from

significantly interfering "with the rights of others." That definition

reasonably implies that an officer should not engage in conduct which hinders or

intrudes upon the basic rights of other citizens. Since affected persons are

given fair notice of what conduct is prohibited, paragraph 1. is not deemed to

be impermissibly vague.

11. As to paragraphs 2. and 3., it can be reasonably inferred that law

enforcement officers are presumed to understand the meaning of the terms "the

criminal justice system" and "the laws of the state and nation." Therefore,

those paragraphs are not deemed to be so vague as to be statutorily invalid.

12. Finally, it cannot be said that conduct which causes "substantial

doubts concerning the officer's moral fitness for continued service" is so vague

as to leave petitioners, and other affected persons, in doubt as to when they

might be subjected to the rule. Therefore, paragraph 4. is deemed to be valid.

e. Does the rule establish adequate standards for agency decisions or vest

unbridled discretion in the agency?

13. Petitioners further allege that the rule "impermissibly delegates

policy decisions as to what is prohibited to those applying the rule, and

requires them to make such determinations on an ad-hoc basis with the danger of

arbitrary and discriminatory application." In other words, petitioners complain

that the rule fails to establish adequate standards for agency decisions or

vests unbridled discretion in the agency.

14. By its own terms, the challenged rule confers some measure of

discretion on the Commission to determine whether a licensee's conduct

constitutes a failure to maintain good moral conduct. But in the context of the

statutory ground raised, this discretion is not unguided. For example,

paragraphs 1., 2. and 4. of the rule specify the basis on which this discretion

is to be exercised. More specifically, before a violation of those paragraphs

can be found, the proscribed conduct by the accused must be significant, adverse

and substantial, all measurable standards for agency decisions. At the same

time, paragraph 3. simply proscribes conduct which "shows disrespect for the

laws of the state or nation," a facially neutral ground for taking disciplinary

action. Therefore, the rule is not deemed to be invalid as lacking standards or

vesting unbridled discretion in the Commission.

f. Is the rule arbitrary and capricious?

15. In their proposed order, petitioners raise for the first time the

contention that the rule is arbitrary and capricious. Aside from the fact that

petitioners failed to allege this statutory ground in their initial petition,

there was no proof to show that the rule was without a logical or factual

underpinning or was adopted without thought or reason. Therefore, this ground

is deemed to be both untimely and without merit.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.56, Florida

Statutes.

17. As the party seeking to have the rule declared invalid, petitioners

bear the burden of proving by a preponderance of the evidence that the rule is

an invalid exercise of delegated legislative authority. See, e. g., Agrico

Chemical Co. v. Dept. of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st

DCA 1978). This burden has been characterized as "a stringent one indeed." Id.

at 763.

18. Section 120.52(8), Florida Statutes, defines an invalid exercise of

delegated legislative authority as follows:

Invalid exercise of delegated legislative

authority means action which goes beyond

the powers, functions, and duties delegated

by the legislature.

The same statute goes on to provide that a proposed rule is invalid if:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

19. Although the initial petition does not identify the specific statutory

grounds for invalidating the rule, petitioners' proposed order suggests that the

rule should be invalidated because it exceeds the agency's grant of rulemaking

authority, it enlarges, modifies or contravenes the specific provisions of law

implemented, it is vague, fails to establish adequate standards for agency

decisions, or vests unbridled discretion in the agency, and it is arbitrary or

capricious. As to the latter ground, there are no allegations in the initial

petition regarding the arbitrary and capricious nature of the rule and thus that

ground has been disregarded as being untimely raised.

20. Because the rule does not exceed the agency's grant of rulemaking

authority in Section 943.12(1), Florida Statutes, in that it purports to

administer the terms of Section 943.1395(7), Florida Statutes, and has statewide

application in a uniform manner, the allegation that the rule violates section

120.52(8)(b) must necessarily fail.

21. Similarly, because the rule does not conflict with the laws

implemented, or any other statute cited by petitioners, it is concluded that the

allegation that the rule enlarges, modifies or contravenes the specific laws

being implemented is without merit.

22. Next, the allegation is made that the rule is vague. The test to

determine whether a rule is impermissibly vague is whether men of common

understanding and intelligence must guess at the provision's meaning. See, e.

g., State, Dept. of Health and Rehab. Services v. Health Care & Retirement

Corp., 593 So.2d 539, 541 (Fla. 1st DCA 1992). For the reasons given in

findings of fact 9-12, paragraphs 1.- 4. are deemed to be sufficiently clear and

understandable so as to permit petitioners, and other affected persons, to

understand the rule's meaning and when it might be applied.

23. Petitioners further allege that the rule is invalid on the ground it

fails to establish adequate standards for agency decisions and vests unbridled

discretion in the agency. For the reasons set forth in findings of fact 13 and

14, this contention is rejected. See, e. g., Cortes v. State, Board of Regents,

655 So.2d 132 (Fla. 1st DCA 1995).

24. In reaching these conclusions, the undersigned has agreed with

respondent's observation that both the courts and the legislature have

recognized the difficulty in defining with precision the term "good moral

character." See, e. g., White v. Beary, 237 So.2d 263, 265-66 (Fla. 1st DCA

1970)("We doubt that the legislature could in its infinite wisdom detail each

salient standard for good moral character."); Fla. Bd. of Bar Examiners v.

G.W.L., 364 So.2d 454, 458 (Fla. 1979)("The term 'good moral character' has no

absolute definition.") See also Sections 472.013(5)(a), 473.306(4)(a) and

489.511(4)(a), Florida Statutes, which prescribe licensure qualifications for

land surveyors, certified public accountants and contractors, respectively, and

define good moral character as "a personal history of honesty, fairness, and

respect for the rights of others and for the laws of this state and nation."

While a more detailed list of prohibited acts might be preferable, by adopting

the existing standards of conduct, which rely heavily on judicial and statutory

language, the Commission has reasonably carried out its statutory duty to define

the term. This being so, the rule is sufficient to withstand assertions of

vagueness and inadequate standards, and the petition to invalidate the rule

should be denied.

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that Rule 11B-27.001(4)(c)1.-4. is determined to be a valid

exercise of delegated legislative authority.

DONE AND ENTERED this 20th day of October 1995, in Tallahassee, Florida.

___________________________________

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of October 1995.

APPENDIX TO FINAL ORDER, CASE NO. 95-4021RX

The undisputed findings submitted by the parties have been accepted and

substantially incorporated into this order.

COPIES FURNISHED:

T. A. Delegal, III, Esquire

5530 Beach Boulevard

Jacksonville, Florida 32202

Marty E. Moore, Esquire

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

V. Carroll Webb, Executive Director

Joint Administrative Procedures Committee

Room 120, Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Laws and Administrative Code

The Capitol, Room 1801

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any party who is adversely affected by this final order is entitled to judicial

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing a copy of a notice of appeal with the agency clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the district court of appeal in the district where the party resides. The

notice of appeal must be filed within thirty days of rendition of the order to

be reviewed.