07-003410PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Ernest P. Haskins, Iii Status: Closed Recommended Order on Thursday, November 1, 2007.

Summary: Respondent engaged in sexual activity while on duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

) Case No. 07-3410PL

vs. )

)

ERNEST P. HASKINS, III, )

)

Respondent. )

RECOMMENDED ORDER

Notice was provided and on September 25, 2007, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes (2007). The hearing proceeded by video-teleconferencing

between sites in Tallahassee, Florida, and Jacksonville, Florida.

The hearing was held before Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Ernest P. Haskins, III, pro se

Post Office Box 604

Hilliard, Florida 32046

STATEMENT OF THE ISSUE

Should the Criminal Justice Standards and Training

Commission (the Commission) impose discipline on Respondent in

association with his Law Enforcement Certificate?

PRELIMINARY STATEMENT

On May 9, 2007, by an Administrative Complaint in Case

No. 22747, the Commission accused Respondent of unlawfully

engaging in sexual activity with K.W., who at relevant times was

allegedly 16 and 17 years old. Such activities allegedly took

place between January 2002 and May 2003. By these actions,

Respondent was alleged to have violated the provisions of Section

794.05, Florida Statutes, or any lesser included offense, as well

as Section 943.1395(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4)(a), by the failure to

maintain the qualifications established in Section 943.13(7),

Florida Statutes, required of a law enforcement officer in

Florida, that he or she maintain good moral character.

The Commission allowed Respondent an opportunity to elect a

response to the charges by executing a form provided him.

Respondent chose the option to dispute the allegations of fact in

the Administrative Complaint. That choice was made by executing

the form and was considered a petition for a formal hearing

pursuant to Section 120.57(1), Florida Statutes. The election of

rights was executed on May 30, 2007, before a Florida Notary

Public.

By this election, Respondent wrote that he disputed, "all"

material facts set forth in the Administrative Complaint. This

is understood to refer to the underlying factual allegations

concerning alleged unlawful conduct directed to K.W.

On July 24, 2007, the Division of Administrative Hearings

(DOAH) received the case from Petitioner requesting the

assignment of an administrative law judge to conduct a formal

hearing to resolve the material facts in dispute. The case was

assigned as DOAH Case No. 07-3410PL to be considered by the

undersigned.

On July 31, 2007, a Notice of Hearing by Video Tele-

conference was provided the parties setting forth September 25,

2007, as the hearing date.

At hearing Petitioner presented K.W. as its witness.

Petitioner's Exhibit numbered one was admitted.

Respondent offered Respondent's Exhibit numbered one, a

therapy summary purportedly authored by Tina M. Larson, L.M.H.C.

concerning the witness K.W. and Respondent's Exhibit numbered

two, a composite constituted of a Florida Department of Law

Enforcement investigative report that included the summary of

remarks made by persons interviewed by the report writer.

When offered, the Respondent's Exhibits numbered one and two were

available to Respondent in his location in Jacksonville, Florida,

but not to the other participants in the hearing, located in

Tallahassee, Florida. Petitioner through counsel objected to the

admission of the exhibits. They were not admitted. Respondent

was allowed to forward his exhibits to be maintained with the

record as rejected exhibits. This he did. They are marked as

Respondent's Exhibits numbered one and two, unadmitted.

Petitioner's counsel had no interest in receiving copies of

Respondent's Exhibits to be maintained with the record.

Respondent's Exhibits were forwarded with a three-page cover

letter authored by Respondent. Respondent failed to provide a

copy of the three-page cover letter to Petitioner's counsel. As

a consequence, on September 28, 2007, a Notice of Ex Parte

Communication in association with the three-page cover letter was

entered allowing Petitioner to rebut the ex parte communication.

No rebuttal has been submitted. § 120.66, Fla. Stat. (2007).

Part of the three-page cover letter described constituted an

attempt at further argument concerning the admission of

Respondent's Exhibits numbered one and two. That portion of the

letter has not been considered in preparing the Recommended

Order. The balance of the three-page cover letter is constituted

of further argument concerning the case history involving

allegations pertaining to Respondent and his relationship with

K.W. and efforts to resolve the dispute. That portion of the

three-page cover letter has been reviewed and considered in

preparing the Recommended Order. Those matters will be discussed

in the conclusions of law.

On October 9, 2007, the hearing transcript was filed with

DOAH. Petitioner filed a Proposed Recommended Order which has

been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Respondent was born January 21, 1963. He holds Law

Enforcement Certificate number 140861 issued by the Commission on

October 1, 1993.

2. At all times relevant to the inquiry, Respondent worked

as a law enforcement officer with the Fernandina Beach Police

Department, Fernandina Beach, Florida.

3. K.W. is a female born on January 3, 1986. Between

January 2002 and May 2003 she lived in Fernandina Beach, Florida.

At the times relevant to the case she was 16 or 17 years old.

During this period she attended high school in Fernandina Beach,

Florida. While in high school she was a member of a club known

as the Explorers. This was an organization unaffiliated with the

school district. Its affiliation was with the Fernandina Beach

Police Department.

4. As a member of the Explorers, K.W. would ride along with

police officers in their patrol cars to learn about the officers'

job duties and participate in community service.

5. K.W. did ride-a-longs with Respondent in his capacity as

a police officer for the Fernandina Beach Police Department.

K.W. rode with Respondent on two or three occasions.

6. While participating in the ride-a-long program,

Respondent and K.W. were intimate on two different occasions.

The intimacy included kissing, touching and oral sex. This

involved Respondent's penis that came in contact with K.W.'s

mouth.

7. The circumstances that have been described occurred

while Respondent was on duty, wearing the uniform of a law

enforcement officer. The contacts described took place in

Respondent's patrol vehicle. On each occasion when Respondent

and K.W. were intimate, these encounters took place in Nassau

County, Florida, once in an area adjacent to Amelia Parkway, and

the second time in the area of a construction site.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter in this case pursuant to

Sections 120.569 and 120.57, Florida Statutes (2007).

9. By this action, the Commission seeks to discipline

Respondent concerning the law enforcement certificate it issued

him. Petitioner bears the burden of proving the allegations in

the Administrative Complaint before discipline can be imposed

against Respondent's law enforcement certificate. The nature of

that proof must be by clear and convincing evidence. Department

of Banking 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).

10. The meaning of clear and convincing evidence is

explained in the case In Re: Davey , 645 So. 2d 398 (Fla. 1994),

quoting with approval from Slomowitz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

11. The factual allegations in the case set forth in the

Administrative Complaint state:

On or between January 2002 and May 2003, the

Respondent, Ernest P. Haskins III, did

unlawfully, while being 24 years of age or

older, engage in sexual activity with K.W.,

who at the time of such intercourse was 16

and 17 years old.

On or between January 2002 and May 2003, the

Respondent, Ernest P. Haskins III, did then

while employed as a Law Enforcement officer

with the Fernandina Beach Police Department,

engage in sexual contact with another, while

on duty.

12. Based upon the facts alleged, the Commission asserts

that:

The actions of the Respondent did violate the

provisions of Section 794.05 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.

13. Section 943.1395(7), Florida Statutes, in effect at

times relevant to the case stated:

(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.

14. The rule referred to in the Administrative Complaint

that deals with the maintenance of good moral character is

Florida Administrative Code Rule 11B-27.0011(4)(a), in effect at

times relevant to the case. It states:

For the purposes of the Criminal Justice

Standards and Training Commission's

implementation of any of the penalties

specified in Section 943.1395 . . . (7), F.S.,

a certified officer's 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.

15. Section 943.13(7), Florida Statutes, mentioned in the

Administrative Complaint and the aforementioned rule, refers to

the need for an officer to:

Have a good moral character as determined

by a background investigation under

procedures established by the commission.

16. The felony violation alleged in the Administrative

Complaint is associated with the provisions of Sections 794.05,

Florida Statutes in effect at times relevant to the case, which

state:

(1) A person 24 years of age or older who

engages in sexual activity with a person 16 or

17 years of age commits a felony of the second

degree, punishable as provided in s. 775.082 ,

s. 775.083 , or s. 775.084 . As used in this

section, "sexual activity" means oral, anal,

or vaginal penetration by, or union with, the

sexual organ of another; however, sexual

activity does not include an act done for a

bona fide medical purpose.

(2) The provisions of this section do not

apply to a person 16 or 17 years of age who

has had the disabilities of nonage removed

under chapter 743.

(3) The victim's prior sexual conduct is not

a relevant issue in a prosecution under this

section.

(4) If an offense under this section directly

results in the victim giving birth to a child,

paternity of that child shall be established

as described in chapter 742. If it is

determined that the offender is the father of

the child, the offender must pay child support

pursuant to the child support guidelines

described in chapter 61.

17. Based upon the hearing record and the explanations by

Respondent, criminal charges were pursued against Respondent

pertaining to his relationship with K.W. There is no indication

of any court disposition of the criminal charges. Therefore,

prosecution of the Administrative Complaint in the present case is

dependant upon Petitioner's separately proving by clear and

convincing evidence that Respondent violated Section 794.05,

Florida Statutes. That proof has been made. Respondent engaged

in "sexual activity" with K.W. in the form of oral sex when he was

24 years of age or older and K.W. was a person 16 or 17 years of

age. This constituted the commission of a felony of the second

degree as defined in the statute. Based upon this violation,

Respondent has failed to maintain good moral character as referred

to in Section 943.1395(7), Florida Statutes, and defined in

Florida Administrative Code Rule 11B-27.0011(4)(a).

18. In his defense, Respondent has argued that Petitioner is

unable to pursue the Administrative Complaint given the history

of the case. To support his argument Respondent refers to an

Affidavit of Agreement to Allow Criminal Justice Certification to

Expire, in which Respondent by executing the affidavit agreed

that:

1. This agreement is voluntary, non-

revocable after submission, and permanent

with no opportunity for modification.

2. I hereby acknowledge that my certificate

is set to expire on June 30, 2006. I agree

that I will not use that certification for

any employment between now and its expiration

date and that I will not ever seek any

renewal thereof.

3. I understand, and hereby waive all rights

under Chapters 120 and 943, Florida Statutes.

4. I understand by waiving my rights under

Chapters 120 and 943, I am waiving my right

to any hearing in regards to my

certification(s), as well as my right to

appeal any final action taken by the

Commission.

5. I waive my right to notice any further

proceedings concerning my certificate(s).

6. I will be notified when this agreement is

accepted by the Commission.

The affidavit was executed on February 28, 2006.

19. In response the Commission entered a Final Order on

April 4, 2006, which stated:

FINAL ORDER

This matter came before the Criminal Justice

Standards and Training Commission (the

Commission). In a document submitted to the

Commission, the Respondent chose to

voluntarily relinquish his criminal justice

certification to the Commission.

FINDINGS OF FACT

The Respondent chose to voluntarily

relinquish his certification as part of the

resolution of a collateral criminal matter.

He did so freely and voluntarily. The

Respondent's voluntary relinquishment is

approved, accepted, adopted and incorporated

herein by reference.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over the

parties and the subject matter of this case,

2. The Respondent, by the terms of his

voluntary relinquishment, has waived his

rights to a hearing pursuant to Chapters 120

and 943, Florida Statutes.

It is therefore ORDERED AND ADJUDGED that:

1. The Respondent's voluntary relinquishment

of his above-referenced criminal justice

certification is ACCEPTED.

2. The Respondent shall immediately

surrender to the Commission his criminal

justice certification(s).

3. This Final Order will become effective

upon filing with the Clerk of the Department

of Law Enforcement.

20. As can been seen, in his affidavit Respondent

characterized the disposition of the case as being one in which

his law enforcement certificate would be allowed to expire. The

Final Order characterized the disposition as a "voluntary

relinquishment."

21. Given the lack of accord between the parties, as to the

nature of the disposition of the matters that underlie the present

Administrative Complaint, an Order Setting Aside the Final Order

dated April 4, 2006, was entered by the Commission. The later

order was dated August 7, 2006. It states:

This matter came before the Criminal Justice

Standards and Training Commission (the

Commission) at the public meeting on August

3, 2006, in Ponte Vedra Beach, Florida. By

Final Order dated April 4, 2006, the

Commission accepted the voluntary

relinquishment of Respondent's law

enforcement certificate. However, upon

review of the document submitted by

Respondent titled Affidavit of Agreement to

Allow Criminal Justice Certificate to Expire ,

Respondent clearly does not agree to

relinquish his certificate but agrees to

allow it to "expire" which, under current

statutory and rule working cannot happen.

The Commission continues to have jurisdiction

over this matter. Having reviewed this

matter in regards to the Respondent's

certification, it is hereby

ORDERED AND ADJUDGED that:

1. The Final Order issued by the Commission

dated April 4, 2006, is hereby VACATED.

2. That this matter be remanded back to

staff for further action.

22. Following entry of the August 7, 2006 order, the May 9,

2007, Administrative Complaint that forms the basis of the

proceeding to be resolved by formal hearing was issued and

contested by Respondent on September 25, 2007.

23. It is concluded that the parties never arrived at an

informal disposition of their differences by stipulation or

agreement. § 120.57(4), Fla. Stat. For that reason, the case

properly proceeded to formal hearing.

24. Disciplinary guidelines are established in Florida

Administrative Code Rule 11B-27.005 pertaining to the violation

described. With those guidelines in mind, a recommendation for

punishment is offered based upon the facts found and conclusions

of law reached, absent a prior disciplinary history.

RECOMMENDATION

Based upon the consideration of the facts found and the

conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding a violation of the

statutes and rule referred to and revoking Respondent's law

enforcement certificate.

DONE AND ENTERED this 1st day of November, 2007, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 1st day of November, 2007.

COPIES FURNISHED:

Sharon Saxler, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Ernest P. Haskins, III

Post Office Box 604

Hilliard, Florida 32046

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Rampage, General Counsel

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.