98-004558 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. David Barnard Status: Closed Recommended Order on Thursday, July 29, 1999.

Summary: Reprimand for violation of mutual restraining order showed lack of good moral character under former rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW )

ENFORCEMENT, DIVISION OF )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4558

)

DAVID BARNARD, )

)

Responden t. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Tampa,

Florida, on May 20, 1999.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr.

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: David Barnard, pro se

Post Office Box 360971

Melbourne, Florida 32936-0971

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to

maintain good moral character and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

As amended at the final hearing to correct an erroneous date

and erroneous citation to a rule, the Amended Administrative

Complaint, dated April 17, 1998, alleges that Respondent was a

certified law enforcement officer, holding license number 102033.

The Administrative Complaint alleges that, on December 11,

1991, Respondent violated a domestic violence restraining order

and, in so doing, failed to maintain good moral character, as

required by Section 943.13(7), Florida Statutes, and thus

violated Section 943.1395(6) and (7), Florida Statutes, and Rule

11B-27.0011(4)(c), Florida Administrative Code.

Respondent requested a formal hearing.

At the hearing, Petitioner called one witness and offered

into evidence three exhibits, which were all admitted.

Respondent called one witness and offered into evidence no

exhibits.

The court reporter filed the Trans cript on July 6, 1999.

FINDINGS OF FACT

1. Petitioner issued Respondent law enforcement certificate

number 102033 on December 3, 1989. Respondent has remained

certified continuously since that date.

2. Respondent's law enforcement experience includes a

related assignment while serving in the United State Marine

Corps. He then worked as a deputy sheriff and police officer in

Los Angeles, California.

3. In 1989, Respondent was employed by the Tampa Police

Department for three or four months, and, in 1990, he was

employed by the Cocoa Police Department for two years. For the

last seven years, Respondent has been employed outside of law

enforcement; currently, he is a sales manager at a Chevrolet

dealership in Cocoa.

4. While working for the Cocoa Police Department,

Respondent continued to reside in the Tampa area, where his wife

and three children also resided. On November 20, 1991, pending

the later entry of a final dissolution decree, a circuit judge in

Tampa entered an Injunction for Protection from Domestic

Violence. The injunction ordered Respondent and his then-wife

"from entering the dwelling, or from entering upon the curtilage

of the dwelling of the other . . .." The injunction warned that

an "intentional violation" of its provisions "shall constitute

contempt of court, punishable by incarceration and/or fine."

Respondent was six feet tall and 220 pounds, and his then-wife

was five feet, three inches tall and 115 pounds.

5. On December 11, 1991, Respondent intentionally entered

the driveway of the townhouse at which his then-wife was

residing. A sheriff's deputy responding to a telephone call from

Respondent's then-wife saw her in the driver's seat of her

vehicle, parked in the driveway, and Respondent standing next to

her holding the top of the door, so as to prevent her from

closing the door. Respondent and his then-wife were arguing.

6. The deputy arrested Respondent. A judge revoked bail on

various criminal charges arising out of an earlier altercation

between Respondent and his then-wife. Respondent remained in

jail for 18 months awaiting trial on these charges. At trial, he

was acquitted of all but two charges--trespassing and battery for

grabbing the hands of his then-wife--but the court withheld

adjudication of guilt on these charges.

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. All

references to Rules are to the Florida Administrative Code.)

8. Section 943.13 imposes the requirement of "good moral

character" upon all persons holding certificates as law

enforcement officers.

9. Section 943.1395(6) and (7) provide:

(6) The commission shall revoke the

certification of any officer who is not in

compliance with the provisions of s.

943.13(4) or who intentionally executes a

false affidavit established in s. 943.13(8),

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

(a) The commission shall cause to be

investigated any ground for revocation from

the employing agency pursuant to s. 943.139

or from the Governor, and the commission may

investigate verifiable complaints. Any

investigation initiated by the commission

pursuant to this section must be completed

within 6 months after receipt of the

completed report of the disciplinary or

internal affairs investigation from the

employing agency or Governor's office. A

verifiable complaint shall be completed

within 1 year after receipt of the complaint.

An investigation shall be considered

completed upon a finding by a probable cause

panel of the commission. These time periods

shall be tolled during the period of any

criminal prosecution of the officer.

(b) The report of misconduct and all

records or information provided to or

developed by the commission during the course

of an investigation conducted by the

commission are exempt from the provisions of

s. 119.07(1) and s. 24(a), Art. I of the

State Constitution and, except as otherwise

provided by law, such information shall be

subject to public disclosure only after a

determination as to probable cause has been

made or until the investigation becomes

inactive.

(c) When an officer's certification is

revoked in any discipline, his or her

certification in any other discipline shall

simultaneously be revoked.

(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:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) 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.

(d) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

10. Rule 11B-27.0011(4)(c) provides that a failure to

maintain good moral character includes:

(c) The perpetration by the officer of an

act or conduct which constitutes:

1. Excessive use of force.

2. Misuse of official position, as

defined by Section 112.313(6), F.S.

3. Having an unprofessional relationship

with an inmate, detainee, probationer, or

parolee, or community controllee. An

unprofessional relationship is defined as:

a. Having written or oral communication

that is intended to facilitate conduct which

is prohibited by Rule Chapter 11B-27, F.A.C.

b. Engaging in physical contact which

is prohibited by law or rule.

4. Sexual harassment involving physical

contact or misuse of official position.

5. Engaging in sex while on duty.

6. False statements.

7. 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 pursuant

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

8. Any other conduct which subverts, or

attempts to subvert, the Criminal Justice

Standards and Training Commission, criminal

justice training school, or employing agency

examination process pursuant to Rule

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

11. In 1991, R ule 11B-27.0011(4)(c) provided that a failure

to maintain good moral character included:

The perpetuation by the officer of an act or

conduct which causes substantial doubts

concerning the officer's honesty, fairness,

or respect for the rights of others or for

the laws of the state and nation,

irrespective of whether such act or conduct

constitutes a crime.

12. The question whether a person has good moral character

is a fact question. See, e.g. , Albert v. Florida Department of

Law Enforcement, Criminal Justice Standards and Training

Commission , 573 So. 2d 187 (Fla. 3d DCA 1991).

13. 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).

14. Although the violation of a court order, especially one

restraining domestic violence, is a grave matter, absence of good

moral character would normally require examination of the

circumstances of the violation and consideration of the violation

in the context of the officer's professional career and life.

However, Petitioner has established a lack of moral character

with substantially less proof, based on Petitioner's reliance of

the former rule that was in effect at the time in question.

15. Rule 11B-27.005(3) sets forth the disciplinary

guidelines. Formerly, when the rule addressed the now-eliminated

basis for proving a lack of moral character, on which Petitioner

relies in this case, Rule 11B-27.005(3)(c) authorized any penalty

from a reprimand through revocation.

16. There are no aggravating circumstances in this case.

As already noted, the record is not especially detailed

concerning the circumstances surrounding Respondent's violation

of the court's injunction. Among other things, it is impossible

to assess the credibility of Respondent's claim that his then-

wife summoned him to her residence to cause him to violate the

injunction. Likewise, it is impossible to assess the extent to

which a court may have found facts concerning Respondent's acts

on the date that he violated the court injunction. Based on the

present record and existing circumstances, the most severe

penalty should be a reprimand.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice and Training

Commission enter a final order finding Respondent guilty of

failing to maintain good moral character and reprimanding his

certificate.

DONE AND ENTERED this 29th day of July, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 1999.

COPIES FURNISHED:

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

A. Leon Lowry, II, Director

Division of Criminal Justice Standards

and Training Commission

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Richard D. Courtemanche, Jr.

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

David Barnard

Post Office Box 360971

Melbourne, Florida 32936-0971

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.