06-002380PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Joe L. Wheeler Status: Closed Recommended Order on Wednesday, November 8, 2006.

Summary: Respondent committed battery in violation of Section 784.03, Florida Statutes. He therefore lacks good moral character and his license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE AND TRAINING )

STANDARDS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2380PL

)

JOE L. WHEELER, )

)

Respondent. )

____________________ _____________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on September 13, 2006, by video teleconferencing between Lauderda le Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Joseph S. White , Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Joe L. Wheeler, pro se

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Joe L.

Wheeler, committed the violations alleged in an Administrative

Complaint issued by Petitioner, the Department of Law

Enforcement, Criminal Justice Standards and Trainin g Commission,

and dated November 16, 2005, and, if so, what disciplinary

action should be taken against him.

PRELIMINARY STATEMENT

In an Administrative Complaint dated November 16, 2005, the

Department of Law Enforcement, Criminal Justice Standards and

Tra ining Commission (hereinafter referred to as the

"Commission"), charged Joe L. Wheeler, with having violated

statutory and rule provisions g overning the conduct of Florida -

certified law enforcement officers. Those violations were based

upon, in addition t o the allegation that Mr. Wheeler holds a law

enforcement certificate from the Commission, the following

allegations of fact:

On or about June 11, 2003, the Respondent,

Joe L. Wheeler, did unlawfully commit a

battery upon Donna Wheeler, by actually

touch ing or striking her or intentionally

causing bodily harm to her against her will.

Mr. Wheeler timely disputed the factual allegations in the

Administrative Complaint by executing an Election of Rights form

in which he requested a formal administrative hea ring before the

Division of Administrative Hearings.

Mr. Wheeler's request for hearing was forwarded to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct an evidentiary hearing. The

matter was designated DOAH Case No. 06 - 2380PL and was assigned

to the undersigned.

By Notice of Hearing by Vi deo Teleconference entered

July 24, 2006, the final hearing of this case was scheduled to

commence September 13 , 2006 . The hearing was scheduled to be

conducted by vide o teleconferencing between Lauderdale La k es ,

Florida, and the offices of the Division of Administrative

Hearings in Tallahassee, Florida. Counsel for the Commission ,

the witnesses, Mr. Wheeler, and the court reporter appeared from

Lauderdale Lakes .

At the final hearing, the Commission presented the

testimony of Donna Wilson - Wheeler, Vaughn Mitchell, S. M. (who

w as 1 6 years of age at the time of the hearing), Pembroke Pines

Police Department Officer Archibald Pinder, and Hollywood Police

Department Lieutena nt Forrest Jeffries. The Co mmission also had

admitted two E xhibits.

By Notice of Filing of Tr anscript issued October 11, 2006 ,

the parties were informed that the Transcript of the final

hearing ha d been filed on October 10, 2006 . The parties were

also in formed that they had until October 30, 2006 , to file

proposed recommended orders. The Commission filed Petitioner's

Proposed Recommended Order on September 30, 2006. Mr. Wheeler

did not file any post - hearing pleading .

FINDINGS OF FACT

1. The Commission is charged with the responsibility for,

among other things, certifying individuals for employment or

appointment as a law enforcement officer and investigating

complaints against individuals holding certificates as law

enforcement officers in the State of Florida, pursuant to

Section 943.3195, Florida Statutes.

2. At the times pertinent to this matter, Respondent,

Joe L. Wheeler , was certified by the Commission as a law

enforcement officer, having been issued Law Enforcement

Certificate Number 169035 on D ecember 11, 1996 . He was employed

with the Hollywood Police Department.

3. At the times relevant to this matter, Mr. Wheeler was

married to Donna Wilson - Wheeler. They were married in April

1996. They divorced in November 2004, after the events at issue

in this matter.

4. On June 11, 2003, Mr. Wheeler and Ms. Wilson - Wheeler

lived together, along with four children: Vaughn Mitchell, who

was 17 years of age at that time; S.M, who was 13 years of age

at th at time; J.W., who was five years of age at th at t ime; and

Jo. W. , who was 12 years of age at that time. Vaughn Mitchell

and S.M. are Ms. Wilson - Wheeler's sons from a previous marriage;

J.W. is the daughter of Mr. Wheeler and Ms. Wilson - Wheeler; and

Jo. W. is Mr. Wheeler's son.

5. During the evening of June 11, 2003, Mr. Wheeler,

Ms. Wilson - Wheeler, and all four children were in the family

residence. At approximately 7:00 p.m., an argument began

between Mr. Wheeler and Ms. Wilson - Wheeler in a downstairs room.

6. Following the verbal altercation, which was over a

video camera that Ms. Wilso n - Wheeler had purchased for

Mr. Wheeler, Mr. Wheeler went upstairs.

7. Shortly after Mr. Wheeler went upstairs, Ms. Wilson -

Wheeler, concerned about whether Mr. Wheeler would take her

cellular telephone out of her purs e, which she had left in the

master bedroom, also went upstairs.

8. When Ms. Wilson - Wheeler walked into the master bedroom ,

not finding her cellular phone i n her purse, she confronted

Mr. Wheeler, who was in the master bedroom bathroom.

9. Ms. Wilson - Whe eler accused Mr. Wheeler of taking her

cellular phone , which Mr. Wheeler denied. Ms. Wilson - Wheeler

continued to accuse Mr. Wheeler, demanding that he return the

phone. Both were angry and the "discussion" was heated.

10. Ms. Wilson - Wheeler, angry over her husband's denials,

went to a desk in the bedroom and picked up a camera used by

Mr. Wheeler and offered it in exchange for her phone.

Mr. Wheeler angrily demanded she give him the camera, and she

complied because she "knew now that he was ticked off."

11. Ms. Wilson - Wheeler told Mr. Wheeler that she would

just hav e the telephone service provider turn her phone off and

went to r etrieve her purse from the bed. As she did so,

Mr. Wheeler said , "H ere's your phone in the bathroom where you

left it."

12. Ms. Wilson - Wheeler went to the bathroom to retrieve

the phone. Believing that she had not left the phone there, she

told Mr. Wheeler , "Y o u took it out." She also told him that she

guessed he was still angry about the video camera. Mr. Wheeler

replied , " F uck you, fuck you" and told her he could buy his own

camera, to which Ms. Wilson - Wheeler said , "G ood."

13. As the verbal sparing continued, Mr. Wheeler lost

control and grabbed Ms. Wilson - Wheeler, who was facing the

bathroom sink, by the neck with his le ft hand and punched her

hard in the head with his right fist. His grip on her throat

was tight enough to restrict her breathing.

14. After punching her, Mr. Wheeler kicked Ms. Wilson -

Wheeler's legs out from under her, causing her to fall to the

bathroom floor. Mr. Wheeler pinned Ms. Wilson - Wheeler on the

floor with his knee and, while cur s ing her, continued to punch

her in the face and head, causing her head to strike the

bathroom floor.

15. Mr. Wheeler continued to choke Ms. Wilson - Wheeler

while he hit her, causing her to have difficulty breathing. She

began to fear that she would lose consciousness.

16. The children, who were downstairs when Mr. Wheeler

first struck Ms. Wilson - Wheeler and heard the commotion, ran

upstairs to see what was happening. Vaughn came into the

bathroom and, as Mr. Wheeler held his fist above Ms. Wilson -

Wheeler ready to strike her again, he grabbed Mr. Wheeler's

fist. Jo. W. also entered the bathroom yelling at his father to

stop. S.M. entered the room, pleading with his mo ther to get

up.

17. Mr. Wheeler, when Vaughn grabbed him, got up off the

floor and, with Vaughn attempting to restrain him, told Vaughn

he would not hurt Ms. Wilson - Wheeler anymore.

18. Mr. Wheeler's attack on Ms. Wilson - Wheeler caused

visible bruises an d swelling to her face, right arm, and left

leg. She also had scratches on her neck, arm, and legs as

result of the battery .

19. Ms. Wilson - Wheeler, picked up the telephone t o call

911, but, when Mr. Wheeler threatened to kill her , did not make

the call . Instead, she left the house. Although she considered

driving to a police station to report the incident, she did not

because of fe ar of what Mr. Wheeler would do to her.

20. Eventually she drove to a nearby store, after picking

up S.M., and had him go into the store to purchase a disposable

camera. She then had S.M. take photographs, which were admitted

into evidence, of the injuries caused by Mr. Wheeler.

21. Ms. Wilson - Wheeler eventually returned to the family

home. She spent the night in her daugh ter's room.

22. The next day, Ms. Wilson - Wheeler attempted to discuss

family finances with Mr. Wheeler, who was lifting weights in the

garage. Mr. Wheeler became angry, cursed her, and repeated his

threat to kill her.

23. On June 18, 2003, after a dispu te over the telephone,

Ms. Wilson - Wheeler told Mr. Wheeler that she was going to report

the incident. She was later told by her son that police

officers were at the house with Mr. Wheeler. She immediately

left her place of employment and went to the Pemb roke Pines

Police Department where she reported the June 11th incident.

24. On June 19, 2003, Ms. Wilson - Wheeler sought a domestic

violence injunction against Mr. Wheeler.

25. The State Attorney's Office charged Mr. Wheeler in

Broward County Court Case N o. 03 - 21011MM10A with criminal

misdemeanor battery based upon the events of June 11, 2003. On

December 2, 2004, a jury returned a verdict finding Mr. Wheeler

guilty of committing the criminal misdemeanor battery he had

been charged with. Adjudication was withheld , and Mr. Wheeler

was s entenced to a term of probation.

26. On December 29, 2004, Mr. Wheeler resigned from

employment with the Hollywood Police Department.

CONCLUSIONS OF LAW

A. Jurisdiction .

27 . The Division of Administrative Hearings has

jur isdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2006).

B. The Burden and Standard of Proof .

28 . In the Administrative Complaint, the Commission is

seeking the i mposition of, among other penalties, the revocation

or suspension of Mr. Wheeler's certification. Therefore, the

Commission has the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence. See

Department of Bank ing and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and McKinney v. Castor , 667 So. 2d 387 (Fla. 1st DCA 1995).

29 . Clear and Convincing ev idence has been defined as

evidence which:

requires that the 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 in conf usion as to the facts 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.

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

30 . The grounds proven in support of the Commission's

assertion that Mr. Wheeler's certificate should be revoked or

suspended must be those specifically alleged in the

Administrative Complaint. See , e.g. , Cottrill v. De partment of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and

Hunter v. Department of Professional Regulation , 458 So. 2d 842

(Fla. 2nd DCA 1984).

C. The Charges Against Mr. Wheeler : Se ction s 943.13(7),

a nd 943.1395(6) and (7), Florida Statutes (2003) .

3 1. The Commission seeks to discip line Mr. Wheeler for a

violation of Sec tion 943.13(7), Florida Statutes (2003), which

provides the following:

On or after October 1, 1984, any pers on

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 Octob er

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.

32. The Commission also seeks to discipline Mr. Wheeler

for violating Section 943.1395(6) and/or (7), which provide the

following:

(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).

. . . .

(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 orde r

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 an d 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 recr uit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

D . Section 943.13(7) .

33. The Commission has defined what constitutes good moral

character by rule, as discussed, infr a . Mr. Wheeler, again, as

discussed, infra , has failed to maintain good moral character in

violation of Section 943.13(7), Florida Statutes (2003).

E. Section 943.1395(6) .

3 4 . The Commission has failed to prove clearly and

convincingly that Mr. Wheeler violated Section 943.1395(6). The

Commission failed to prove that Mr. Wheeler "intentionally

execute[d] a false affidavit" or that he was not in compliance

with the provisions of Section 943.13(4), which requires that a

law enforcement officer

[n]ot 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. . . .

3 5 . All of the provisions cited in Section 943.1395(6)

deal with g iving false statements, which the evidence failed to

prove Mr. Wheeler is guilty of, and which the Commission did not

allege or prove.

F . Section 943.1395(7) .

3 6 . Section 943.1395(7) contemplates that a law

enforcement officer will maintain good moral ch aracter and that

disciplinary action may be taken against a law enforcement

officer "[u]pon a finding by the commission that a certified

officer has not maintained good moral character. . . ."

3 7 . The term "moral character" has been defined for

purposes o f Section 943.1395(7) in Florida Administrative Code

Rule 11B - 27.0011. In its Administrative Complaint, the

Commission has alleged that Mr. Wheeler failed to maintain good

moral character as defined in Rule 11B - 27.001(4)( b ), which

provides, in pertinent p art, as follows:

(4) For the purposes of the Criminal

Justice Standards and Training 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 requir ed by

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

( b) The perpetration by an officer of an

act that would constitute any of the

following misdemeanor or criminal offenses

whether criminally prosecuted or not:

1. Sections 316.193, 316.1935, 327.35,

414. 39, 741.31, 784.011, 784.03 , 784.047,

784.048, 784.05, 790.01, 790.10, 790.15,

790.27, 794.027, 796.07, 800.02, 800.03,

806.101, 806.13, 810.08, 812.014, 812.015,

812.14, 817.235, 817.49, 817.563,

817.565,817.567, 817.61, 817.64, 827.04,

828.12, 831.30, 83 1.31(1)(b), 832.05,

837.012, 837.05, 837.06, 839.13, 839.20,

843.02, 843.03,843.06, 843.085, 847.011,

856.021, 870.01, 893.13, 893.147, 914.22,

934.03, 944.35, 944.37, and 944.39, F.S.

[Emphasis added].

. . . .

3 8 . In support of its complaint, the Co mmission has

alleged that Mr. Wheeler's actions would constitute the offense

of "battery" as defined in Section 784.03 , Florida Statutes

(2003) :

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

person:

1. Actually and intentionally touches or

strikes anoth er 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.

3 9 . The evidence clearly and convincingly proved that

Mr. Wheeler, on the night of June 11, 2003, touched and struck

Ms. Wilson - Wheeler against her will intentionally causing bodily

harm to her. Mr. Wheeler did, therefore, perpetuate the offense

defined in Section 784.03, Florida Statutes (2003), in violation

of Florida Administrative Code Rule 11B - 027.0011(4), and Section

943.1295(7), Florida Statutes (2003).

G. Appropriate Disciplinary Action .

40 . The Commission is authorized, upon fin ding a violation

of Section 943.13 95 (7), to impose the discipline specified in

Section 943.13 95(7)(a) through (e), which ranges from revocation

to a reprimand.

41 . Florida Administrative Code Rule 11B - 27.005(5) sets

forth the disciplinary guidelines for the discipline of law

enforcement officers. In pertinent part, Rule 11B -

27.005(5)( b ) 2. sets forth the following guideline:

(a) For the perpetration by the officer

of an act that would constitute any of the

misdemeanor offenses, pursuant to paragraph

1 1B - 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 suspension of

certification. Specific violations and

penalties th at shall be imposed, absent

aggravating or mitigating circumstances,

include the following:

. . . .

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

42 . Florida Administrative Code Rule 11B - 27.005(6) sets

forth aggravating and mitigating circumstances which a re also be

taken into account:

(a) Aggravating circumstances:

1. Whether the certified officer used

official authority to facilitate the

misconduct.

2. Whether the misconduct was committed

while the certified officer was performing

other duties.

3. The number of violations [3] found by

the Commission.

4. The number and severity of prior

disciplinary actions taken against the

certified officer by the Commission,

provided the officer was previously

disciplined by the Commission within the

prece ding eight years or received a Letter

of Guidance within the preceding five years.

5. The severity of the misconduct.

6. The danger to the public.

7. The actual damage, physical or

otherwise, caused by the misconduct.

8. The lack of deterrent effec t of the

penalty imposed by the employing agency.

9. The pecuniary benefit or self - gain to

the officer realized by the misconduct.

10. Whether the misconduct was motivated

by unlawful discrimination.

11. Any behavior constituting “domestic

violence” defined by Section 741.28(1), F.S.

12. Whether the certified officer has

previously received a Letter of

Acknowledgement within the preceding three

years.

(b) Mitigating circumstances:

1. The officer’s employment status in a

position requiring Comm ission certification

at the time of the final hearing before the

Commission.

2. The recommendations of character or

employment references.

3. The lack of severity of the misconduct.

4. The length of time the officer has been

certified by the Commissi on.

5. Any effort of rehabilitation by the

certified officer.

6. The effect of disciplinary or remedial

action taken by the employing agency or

recommendations of employing agency

administrator.

7. The recommendation of a Probable Cause

Panel to impo se a penalty below the penalty

guideline.

8. Effort of the officer to retract a

false statement prior to the close of the

disciplinary or criminal investigation.

43 . The evidence failed to prove any mitigating

circumstances exist in this matter. Aggr avating circumstances

include the violent manner in which Mr. Wheeler attacked his

former wife and the injuries he caused to her. Additionally,

Mr. Wheeler compounded his wrong by intimidating Ms. Wilson -

Wheeler, by threatening to kill her if she reported his attack.

Mr. Wheeler's conduct also constituted domestic violence, a

specifically - listed aggravating circumstance, violence that was

carried out in the family home with minor children present and

witnesses at least to the injuries caused by Mr. Wheele r to

their mother.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Commission finding that Joe L. Wheeler, violated Sections

943.13(7), and 943.1395(7) Florida Statutes ( 2003) ; dismissing

the allegation that he violated Section 943.1395(6); and

revoking his certification .

DONE AND ENTERED this 8th day of November, 2006 , in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

A dministrative 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

t his 8th day of November, 2006 .

COPIES FURNISHED:

Joseph S. White , Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Joe L. Wheeler

Michael Ramage, General Counsel Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director

Division of Criminal Justice Professionalism Services F lorida Department of Law Enforcement

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.