98-004705 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Eric C. Denoun Status: Closed Recommended Order on Thursday, May 27, 1999.

Summary: Law enforcement officer`s act of trespassing on residence premises of another, while naked, demonstrated lack of good moral character. Revocation recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4705

)

ERIC C. DENOUN, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 17, 1999, at Fort Lauderdale, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Eric C. Denoun, pro se

1421 Cottonwood Circle

Weston, Florida 33326

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner

seeks to take disciplinary action against the Respondent on the

basis of conduct alleged in an Administrative Complaint. The

Respondent is charged with failure to maintain good moral

character by trespassing on the premises of another and by being

naked on such premises.

PRELIMINARY STATEMENT

Immediately prior to the commencement of the final hearing,

the Respondent filed and served a Motion to Dismiss. The parties

were advised that disposition of the motion would be included in

the Recommended Order. The parties were instructed to include

their arguments for and against the motion in their respective

proposed recommended orders.

At the final hearing on February 17, 1999, the Petitioner

presented the testimony of four witnesses and offered nine

exhibits into evidence, all of which were admitted. One Joint

Exhibit was also admitted into evidence. The Respondent did not

present the testimony of any witnesses and also chose not to

testify on his own behalf. The Respondent did not offer any

exhibits other than the one Joint Exhibit.

At the conclusion of the final hearing, the parties agreed

that the deadline for filing proposed recommended orders would be

ten days from the filing of the transcript. The transcript was

filed with the Division of Administrative Hearings on April 16,

1999. 1 Thereafter, both parties filed proposed recommended

orders containing proposed findings of fact and conclusions of

law. The proposals submitted by the parties have been carefully

considered during the preparation of this Recommended Order. 2

FINDINGS OF FACT

1. The Respondent was certified as a sworn law enforcement

officer by the Criminal Justice Standards and Training Commission

on May 13, 1983, and was issued Law Enforcement Certificate

Number 4384. The Respondent held such certification at all times

material to this proceeding.

2. The Respondent began employment with the Metro-Dade

Police Department in early 1983, and was so employed at all times

material to this case.

3. At all times material to this case, the Respondent

resided at 1421 Cottonwood Circle, Weston, Florida 33326. The

Respondent's residence was one of several units in a townhouse

building.

4. In December of 1991, Ms. Kimberly McDonald 3 resided at

1419 Cottonwood Circle, Weston, Florida 33326. Her 11-year-old

daughter resided with her at that address. Ms. McDonald's

residence was next door to the Respondent's residence.

5. Ms. McDonald's residence in December of 1991 had a yard

and patio area at the rear of the residence. There were sliding

glass doors and windows that faced the yard and patio area at the

rear of the residence. That yard and patio area was enclosed by

a wooden fence. The fence was slightly more than six feet high.

6. As of December 1991, Ms. McDonald had lived next door to

the Respondent for approximately six months. As of December

1991, Ms. McDonald and the Respondent were casual acquaintances;

neighbors who occasionally spoke to each other.

7. On the morning of December 4, 1991, Ms. McDonald left

her residence and started driving towards her place of

employment. Earlier that morning, Ms. McDonald's daughter had

gone to school. The Respondent saw Ms. McDonald leave her

residence that morning. The Respondent also knew that

Ms. McDonald's daughter had gone to school and that their

residence was unoccupied.

8. For reasons that are not made clear by the record in

this case, 4 shortly after the Ms. McDonald drove away on the

morning of December 4, 1991, the Respondent walked to the back of

Ms. McDonald's residence, removed all of his clothes, and jumped

or climbed over the wooden fence around the back yard and patio

area of Ms. McDonald's residence. The Respondent then walked

naked across Ms. McDonald's back yard and attempted to open one

of the sliding glass doors of Ms. McDonald's residence.

9. In the meantime, before she got to her office,

Ms. McDonald remembered that she had forgotten something she

would need later in the day. Accordingly, she turned around and

drove back home. Ms. McDonald entered her residence through the

front door and had taken only a few steps into the residence when

she saw the Respondent standing in her back yard, completely

naked, with one of his hands on the handle of one of the sliding

glass doors. Ms. McDonald was frightened and upset by the

unexpected and uninvited presence of a naked neighbor.

Ms. McDonald had never invited the Respondent into her house or

into her enclosed back yard, nor had she ever given the

Respondent permission to climb the fence and enter her back yard

and patio area.

10. The Respondent saw Ms. McDonald at about the same time

she saw him. The Respondent panicked, immediately turned away

from Ms. McDonald, and ran naked towards the wooden fence. When

the Respondent got to the fence, he stepped on a chair and jumped

over the fence. Once over the fence, the Respondent retrieved

his clothes, dressed, and returned home.

11. Ms. McDonald was very upset about finding a neighbor in

her yard who appeared to be trying to enter her residence. A few

minutes later, after talking to a relative, Ms. McDonald called

the Broward County Sheriff's Office and reported the incident.

The Sheriff's office conducted an investigation and filed

criminal charges against the Respondent. Following a jury trial,

the Respondent was found guilty of the offenses described in

Sections 800.03 and 810.08, Florida Statutes (1991).

12. As a result of the Respondent's conduct on December 4,

1991, Ms. McDonald was concerned about the possibility that the

Respondent might engage in future bizarre conduct. She also

feared for the safety of herself and her daughter, because she

did not know what purpose the Respondent had in mind when he came

to her house naked. Because of these concerns and fears,

Ms. McDonald and her daughter immediately moved to another

residence.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

14. Turning first to the Respondent's Motion to Dismiss,

the motion is denied. 5

15. In a proceeding of this nature, proof greater than a

mere preponderance of the evidence must be submitted. Clear and

convincing evidence is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935, (Fla. 1996);

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

Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v.

Department of Business and Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of

Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992); Newberry v. Florida Department of Law Enforcement , 585

So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of

Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988); Section

120.57(1)(h), Florida Statutes. ("Findings of fact shall be

based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute.").

16. The Administrative Complaint in this case alleges, in

pertinent part, that the Respondent engaged in the following

conduct:

2.(a) On or about December 4, 1991, the

Respondent, Eric C. Denoun, did unlawfully,

without being authorized, licensed, or

invited, willfully enter or remain in a

structure or conveyance, to-wit: 1419

Cottonwood Circle, Fort Lauderdale, Florida,

owned or leased by Kimberly McDonald. . . .

(b) On or about December 4, 1991, the

Respondent, Eric C. Denoun, did unlawfully

expose or exhibit his sexual organs in a

public place or on the private premises of

another . . ., in a vulgar or indecent

manner, or so to expose his person in such

place or to go or be naked in such place.

17. The conduct described immediately above has been proved

by clear and convincing evidence. The unlawful nature of such

conduct is established by the language of Sections 800.03 and

810.08, Florida Statutes (1991), and by the Respondent's criminal

convictions for the cited offenses.

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

(1991), in effect at the time of the alleged offense, defines

"good moral character" for purposes of the implementation of

disciplinary action upon Florida law enforcement officers. The

rule states in relevant portion:

(4) For the purposes of the Commission's

implementation of any of the penalties

enumerated in Section 943.1395(6) or (7) a

certified officer's failure to maintain a

good moral character, as required by Section

943.13(7), is defined as:

* * *

(b) The perpetration by the officer of an

act which would constitute any of the

following misdemeanor or criminal offenses,

whether criminally prosecuted or not:

Sections . . . 800.03, . . . 810.08, F.S.,

or. . . .

19. Section 800.03, Florida Statutes (1991), reads as

follows in pertinent part:

It shall be unlawful for any person to

expose or exhibit his sexual organs in any

public place or on the private premises of

another, or so near thereto as to be seen

from such private premises, in a vulgar or

indecent manner, or so to expose or exhibit

his person in such place, or to go or be

naked in such place. Provided, however, this

section shall not be construed to prohibit

the exposure of such organs or the person in

any place provided or set apart for that

purpose. Any person convicted of a violation

hereof shall be guilty of a misdemeanor of

the first degree. . . .

20. Section 810.08, Florida Statutes (1991), reads as

follows in pertinent part:

(1) Whoever, without being authorized,

licensed, or invited, willfully enters or

remains in any structure or conveyance, or,

having been authorized, licensed, or invited,

is warned by the owner or lessee of the

premises, or by a person authorized by the

owner or lessee, to depart and refuses to do

so, commits the offense of trespass in a

structure or conveyance.

(2)(a) Except as otherwise provided in

this subsection, trespass in a structure or

conveyance is a misdemeanor of the second

degree

21. Section 810.011, Florida Statutes (1991), includes the

following definition for use in Chapter 810: "(1) 'Structure'

means a building of any kind, either temporary or permanent,

which has a roof over it, together with the curtilage thereof."

22. It is clear from the facts in this case that the

Respondent has failed to maintain good moral character. With

regard to such failure, Section 943.1395(6), Florida Statutes,

authorizes the Criminal Justice Standards and Training Commission

(Commission) to impose penalties which may include revocation,

suspension, probation, and/or reprimands. Upon consideration of

the Commission's disciplinary guidelines, the appropriate penalty

in this case is revocation of the Petitioner's law enforcement

certification.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that a

final order be issued in this case finding that the Respondent

committed the violations charged in the Administrative Complaint

and imposing a penalty consisting of the revocation of the

Respondent's law enforcement certification.

DONE AND ENTERED this 27th day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 27th day of May, 1999.

ENDNOTES

1/ An amended transcript was filed on April 27, 1999.

2/ The findings of fact and conclusions of law proposed by the

Petitioner are, for the most part, consistent with the views

reached by the Administrative Law Judge following a consideration

of all of the evidence and argument submitted by the parties.

Accordingly, portions of the Petitioner's Proposed Recommended

Order have been incorporated into this Recommended Order.

3/ Ms. McDonald is now known by a different last name.

4/ Although the Respondent did not testify at the final hearing

in this case, the exhibits in this case include statements made by

the Respondent under oath on other occasions, including his

testimony at the criminal trial that arose from his actions on

December 4, 1991. The Respondent's prior statements about why he

was naked in Ms. McDonald's back yard are not worthy of belief.

To the contrary, they are illogical, are inconsistent from one

telling to the next, and in many details appear to be

intentionally false statements.

5/ In addition to being untimely, the motion also lacks merit

because it is based in part on factual details different from

those proved at the final hearing, and it is based in part on

erroneous interpretations of the applicable legal principles.

COPIES FURNISHED:

Karen D. Simmons, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Eric C. Denoun

1421 Cottonwood Circle

Weston, Florida 33326

A. Leon Lowry, II, 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

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.