08-000713PL Criminal Justice Standards And Training Commission vs. Lamar S. Green Status: Closed Recommended Order on Thursday, May 22, 2008.

Summary: Petitioner failed to prove that Respondent was not of good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-0713PL

)

LAMAR S. GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on April 2, 2008, in Lakeland, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent:

STATEMENT OF THE ISSUE

Whether Respondent, Lamar S. Green's, conduct evidenced

lack of "good moral character" as alleged in the Administrative

Complaint in this matter.

PRELIMINARY STATEMENT

On June 15, 2007, Petitioner, Florida Department of Law

Enforcement, Criminal Justice Standards and Training Commission,

filed an Administrative Complaint alleging that on September 15,

2007, Respondent, Lamar S. Green, made a false statement that he

knew to be untrue while under oath during an official

proceeding; that on October 15, 2007, Respondent did unlawfully,

knowingly, and willfully resist, obstruct, or oppose another law

enforcement officer who was engaged in the lawful execution of

his duty; and further alleging that this conduct evidenced lack

of "good moral character" so as to warrant disciplining

Respondent's certification as a law enforcement officer. (The

Administrative Complaint contained other allegations that were

withdrawn at the beginning of the final hearing.)

Respondent disputed the allegations of fact contained in

the Administrative Complaint and requested a final hearing

before an Administrative Law Judge.

By letter dated February 12, 2008, the matter was forwarded

by Petitioner to the Division of Administrative Hearings

requesting that the matter be assigned to an Administrative Law

Judge for hearing. On that same day, an Initial Order was sent

to both parties. Based on the responses of the parties to the

Initial Order, the case was scheduled for final hearing on

April 2, 2008, in Lakeland, Florida.

The final hearing took place as scheduled. Petitioner

presented three witnesses: Deputy Sheriff Jeff Blair; Captain

Joseph Glenn Watson (Retired); and Lieutenant Phillip Petote.

Petitioner offered three exhibits that were received into

evidence and marked Petitioner's Exhibits 1 through 3.

Respondent presented two witnesses: Tracy Phillips and Darlene

Stalk.

The Transcript of Proceedings was filed with the Division

of Administrative Hearings on April 28, 2008. On May 5, 2008

Petitioner filed a motion to allow additional time for filing

proposed recommended orders. While the Order Granting Extension

of Time erroneously required proposed recommended orders to be

filed by May 8, 2008 (the original filing date), Petitioner's

filing date is accepted, as reflected in the subsequent amended

order issued on May 14, 2008. Petitioner's Proposed Recommended

Order was considered in the preparation of this Recommended

Order. Respondent did not file a proposed recommended order.

All references are to 2006 Florida Statutes, unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Respondent was certified by Petitioner on November 18,

1998. He holds law enforcement Certificate No. 197843.

2. At the times relevant to the allegations of impropriety

in the Administrative Complaint, Respondent was a bailiff with

the Polk County Sheriff's Office.

3. On October 15, 2006, Deputy Jeff Blair of the Polk

County Sheriff's Office responded to a residence in Lakeland

regarding a child custody dispute.

4. Upon arrival at the residence, Deputy Blair met with

Tracy Fields. Ms. Fields wanted Deputy Blair to get her

children back from her ex-husband, Mr. Fields.

5. Based on the initial information he obtained, Deputy

Blair told Ms. Fields that in the absence of a court order, he

was not authorized to intervene in the matter. (Apparently, it

was later determined that a restraining order as a result of

domestic violence had been issued against Mr. Fields. It

appeared that the restraining order had been issued prior to

October 15, 2006. It is also similarly unclear as to whether

the restraining order awarded custodial responsibility and

visitation and would have provided the "court order" Deputy

Blair required.)

6. Subsequently, Respondent, Ms. Fields' boyfriend,

arrived on the scene. Deputy Blair did not know Respondent and

Respondent was not in uniform.

7. Deputy Blair repeated his statement to Respondent and

Ms. Fields that in the absence of a court order, he was not

authorized to intervene in the matter. Respondent reacted

angrily to Deputy Blair, became confrontational, and questioned

Deputy Blair as to his time in service as a law enforcement

officer by telling him that given his identification number, he

had not been a deputy very long. Respondent subsequently

apologized to Deputy Blair and identified himself as a deputy

sheriff, serving as a bailiff.

8. While Deputy Blair was discussing the matter with

Ms. Fields and Respondent, Deputy Blair received a report that a

"911" call had been made reporting Ms. Fields at Mr. Fields'

house, which was obviously untrue since she was with him. In

addition, Mr. Fields agreed to meet Deputy Blair and his watch

commander at a gas station to return the Fields' children. He

failed to meet them. Neither of these incidents resulted in an

incident report; however, Deputy Blair was directed to author an

Incident Report regarding Respondent's conduct.

9. In June 2006, Respondent was re-assigned from his post

as a court bailiff to the court holding section based on a

memorandum from a judge to Respondent's supervisor regarding

Respondent's work performance.

10. The stated reason for Respondent's reassignment was

his reported absenteeism from his courtroom duties. Respondent

was told this by his Captain, and he acknowledged that he

understood. Respondent explained to his Captain that he had

been having difficulties with his bowels that made it necessary

to be absent from the courtroom from time to time.

11. On September 15, 2006, Respondent testified as a

witness before Polk County Circuit Court Judge Carpanini in a

domestic violence injunction hearing in Fields v. Fields , Polk

County Circuit Court Case No. 2006DR-6613. During direct

examination, Respondent was questioned about his removal from

his job assignment as a bailiff with the Polk County Sheriff's

Office.

12. The following is the relevant portion of the

testimony:

T. Fields: Has there been any other type of

harassment that you feel Mr. Fields has employed

upon you?

Respondent: He's contacted the Polk County Sheriff's

Office and filed a complaint with the internal

affairs against me, which is not true. I have

documentation and we'll have testimony from the

deputy that was at the Kroger's Dance Studio that

what he alleges in the complaint is not factual,

also he alleged a, tried to put an injunction of

protection against me, stating I threatened his

secretary that I didn't (inaudible) him. It was

denied. He then entered a voluntary dismissal up

of [sic] that injunction, but there still is an

investigation at the sheriff's office that's

going to be followed up on where he filed a bogus

complaint against me there.

T. Fields: And because of this harassment Mr. Green,

you've had to hire an attorney haven't you?

Respondent: That's correct.

T. Fields: And you've been removed from your current

position as a bailiff here at the courthouse?

Respondent: That's correct.

T. Fields: And was that on or before-

Judge Carpanini: Mrs. Fields is this; this case

doesn't involve Mr. Green. It involves you so

please move on.

13. During cross-examination, Respondent was questioned

further about his removal from his job assignment as a bailiff

with the Polk County Sheriff's Office.

14. The following is the relevant portion of that

testimony:

ML: You know, you mentioned with Mrs. Fields earlier

that you've been removed from your job, your

current job here at the courthouse because of

Mr. Fields.

Respondent: Believe so. That investigation isn't

complete.

15. Respondent's testimony set forth hereinabove is

ancillary to the matter at issue before the Circuit Court and

not dispositive of any issue in the domestic violence case

involving Mr. and Mrs. Fields, and, as pointed out by the

presiding Circuit Court Judge, this testimony is not germane to

the issue being considered by the Court. In addition, it

clearly expresses Respondent's opinion or belief on why his job

was changed.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.569, Fla. Stat. (2007)

17. Petitioner has the burden of proof to show by "clear

and convincing" evidence that Respondent committed the acts

alleged in the Administrative Complaint. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

18. The "clear and convincing" standard requires:

[T]hat 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 confusion

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.

In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

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

19. Disciplining a professional license, such as a law

enforcement certification, is penal in nature. Statutes that

authorize the imposition of penal sanctions must be strictly

construed and any ambiguity must be construed in favor of

Respondent. Elmariah v. Department of Business and Professional

Regulation , 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

20. Paragraphs 2 and 3 of the Administrative Complaint,

which is the charging document in this case, allege:

(a) On or about September 15, 2006, the

Respondent, Lamar S. Green, did unlawfully

make a false statement, which he did not

believe to be true, under oath administered

by Judge Mark Carpanini in an official

proceeding, to wit: a Domestic Violence

Injunction Hearing in regard to a material

matter, . . . gave an incorrect account of

the reasons why he was reassigned in his

employment.

* * *

(c) On or about October 15, 2006, the

Respondent, Lamar S. Green, did unlawfully,

knowingly, and willfully resist, obstruct or

oppose Deputy Sheriff Jeffrey Blair in the

lawful execution of any legal duty, to wit,

the investigation of a civil disturbance, by

belittling Officer Blair and questioning his

competence.

* * *

3. The actions of the Respondent did

violate the provisions of Section 837.02(1),

843.02, 843.02 or any lesser included

offenses, Section 943.1395(7), Florida

Statutes[,] and Rule 27.011(4)(a)and (b),

Florida Administrative Code, in that

Respondent has failed to maintain the

qualifications established in Section

943.139(7), Florida Statutes, which require

that a Law Enforcement and Correctional

officer in the State of Florida have good

moral character.

21. Section 943.13, Florida Statutes, establishes the

minimum qualifications for law enforcement officers in Florida.

Subsection 943.13(7), Florida Statutes, states, in part, that

law enforcement officers must:

(7) Have a good moral character as

determined by a background investigation

under procedures established by the

commission.

22. Subsection 943.1395(7), Florida Statutes, authorizes

Petitioner to specify by rule the definition of "good moral

character" for purposes of implementing the penalties Petitioner

may levy against an officer for violating the "good moral

character" clause contained in Subsection 943.13(7), Florida

Statutes, after the officer is certified. Subsection

943.1395(7), Florida Statutes, provides that:

(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.

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

defines "good moral character" for purposes of the

implementation of disciplinary action upon Florida law

enforcement and correctional officers. The Rule states in

relevant portion:

(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 required by

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

* * *

(b) The perpetration by an officer of acts

or conduct that constitute the following

offenses:

1. Sections . . . 837.012, . . .

843.02, . . .;

24. While the Administrative Complaint specifically

alleges that Respondent violated "Section 837.02(1)," Florida

Statutes, Florida Administrative Code Rule 11B-27.0011(4)(b)1.

does not list Subsection 837.02(1), Florida Statutes, as an

offense relative to the determination of good moral character.

Whether or not Subsection 837.02(1), Florida Statutes, is listed

in Florida Administrative Code Rule 11B-27.0011(4)(b)1. is not

relevant because Petitioner has failed to prove that Respondent

committed the offense of perjury by clear and convincing

evidence.

25. Subsection 837.02(1), Florida Statutes, reads, as

follows:

(1) Except as provided in subsection (2),

whoever makes a false statement, which he or

she does not believe to be true, under oath

in an official proceeding in regard to any

material matter, commits a felony of the

third degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

26. As set forth in Vargas v. State , 795 So. 2d 270 (Fla.

3rd DCA 2001), a case involving a police officer in a homicide

investigation, where the police officer was determined to be not

guilty of perjury, as her statements were not material to the

underlying murder investigation and were merely statements of

her opinion or belief and not of fact, the court reiterates that

the essential elements of the crime of perjury are:

(1) willful; (2) giving of false testimony; (3) on a material

point; (4) in a judicial proceeding; and (5) by a person to whom

a lawful oath has been administered. Hirsh v. State , 279 So. 2d

866, 869 (Fla. 1973)

27. "Materiality" is not an element of the crime of

perjury in Florida, but is a threshold issue that a court must

determine as a matter of law prior to trial. State v. Ellis ,

723 So. 2d 187 (Fla. 1998); State v. Diaz , 785 So. 2d 744 (Fla.

3d DCA 2001). To be material, statements must be germane to the

inquiry and have a bearing on a determination in the underlying

case. Diaz , 785 So. 2d at 746. Unless the alleged testimony

given under oath is germane or material to the inquiry or

charge, then its truthfulness is not the vital issue because the

purpose to be guarded against and the reasons for the punishment

for perjury are to deter persons from testifying under oath to

false statements in order to mislead the trier of the facts such

as the court or the jury or both and, thereby, to thwart and

pervert justice. Thus, it is insufficient that the statements

are untrue or incorrect; the statements must have a bearing on a

determination in the underlying case.

28. A statement alleged to be perjury must be one of fact

and not of opinion or belief. The crime of perjury does not

encompass expressions of opinion. Vargas , 795 So. 2d at 272.

29. Whatever Respondent said about why his job

responsibilities were changed within the Polk County Sheriff's

Office, whether true or not, had nothing to do with the domestic

violence case pending before the court and was no more than an

expression of his opinion of the reason for his transfer.

30. Section 843.02, Florida Statutes, states:

Whoever shall resist, obstruct, or oppose

any officer as defined in s. 943.10(1), (2),

(3), (6), (7), (8), or (9); member of the

Parole Commission or any administrative aide

or supervisor employed by the commission;

county probation officer; parole and

probation supervisor; personnel or

representative of the Department of Law

Enforcement; or other person legally

authorized to execute process in the

execution of legal process or in the lawful

execution of any legal duty, without

offering or doing violence to the person of

the officer, shall be guilty of a

misdemeanor of the first degree, punishable

as provided in S. 775.082 or s. 775.083.

31. The evidence presented revealed that Respondent became

angry when advised by Deputy Blair that he (Deputy Blair) could

not intervene in the Fields' domestic relations matter without a

court order and questioned the deputy's time in service and

experience. Respondent's reaction and questions hardly rise to

the level of resistance, obstruction, or opposition contemplated

by the statute as interpreted by Florida's courts. Nor was

Respondent the subject of the exercise of Deputy Blair's lawful

duty. Deputy Blair was investigating a domestic problem

involving divorced parties and missing children. Respondent was

not a family member or directly involved, but he was Ms. Fields'

boyfriend.

32. As stated in Wilkerson v State , 556 So. 2d 453, 455

(Fla. 1st DCA 1990):

The statute uses only two operative words,

i.e., "obstruct or oppose" an officer. The

word "obstruct" means "to interfere with,

impede, or retard," American Heritage

Dictionary of the English Language , p. 907

(1979 ed.), and in this sense contemplates

acts or conduct apart from verbal

expressions, which operate to physically

hinder or impede another in doing something.

The word "oppose" has a broader definition,

i.e., (1) "To be in contention or conflict

with; combat; resist: oppose the enemy

force " ; and (2) "To be against; be hostile

to: oppose new ideas. " Id. at 922. Thus,

the word "oppose" can be used to connote

either (1) conduct or acts of physical

resistance and opposition, or (2) verbal

expression of conflicting or differing

ideas; but obviously its use in the first

sense does not connote the second sense. We

have no doubt that the use of "oppose" in

conjunction with "obstruct" manifests a

clear and unambiguous legislative intent to

proscribe only acts or conduct that operate

to physically oppose an officer in the

performance of lawful duties.

33. D. A. W. v. State , 945 So. 2d 624 (Fla. 2d DCA 2006),

states, regarding the involvement of the individual charged with

violating Section 843.02, Florida Statutes:

If a police officer is not engaged in

executing process on a person, is not

legally detaining that person, or has not

asked the person for assistance with an

ongoing emergency that presents a serious

threat of imminent harm to person or

property, the person's words alone can

rarely, if ever, rise to the level of an

obstruction. Thus, obstructive conduct

rather than offensive words are normally

required to support a conviction for

obstructing an officer without violence.

Id. at 626, quoting D.G. v. State , 661 So. 2d 75, 76 (Fla. 2d

DCA 1995).

34. Based on Respondent's status as a bystander and, more

importantly, the innocuous nature of his conduct and inquiry,

Petitioner has failed to prove clearly and convincingly that

Respondent violated Section 843.02, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent, Lamar S. Green, be found not

guilty of failure to maintain good moral character as required

by Subsection 943.13(7), Florida Statutes; and that no

disciplinary action be taken against Respondent's law

enforcement certification. This matter should be dismissed.

DONE AND ENTERED this 22nd day of May, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 22nd day of May, 2008.

COPIES FURNISHED :

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Joseph S. White, Esquire

Florida 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.