STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0446

)

RICHARD J. PFEIFFER, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 24, 1984, respondent filed a motion to dismiss addressed to the administrative complaint dated September 28, 1983, served on respondent January 6, 1984, and received by the Division of Administrative Hearings on February 8, 1984. Petitioner has filed nothing in response to the motion to dismiss.

1.

In the motion to dismiss, respondent contends that paragraph four of the administrative complaint, alleging a 1974 conviction for disorderly conduct, should be dismissed on grounds of res judicata. Earlier administrative proceedings in the wake of the court's decision in Pfeiffer v. Police Standards and Training Commission, 360 So.2d 1326 (Fla. 1st DCA 1978) eventuated in respondent's certification as a law enforcement officer, over petitioner's initial objection that Pfeiffer's 1974 disorderly conduct conviction was for a crime involving "moral turpitude," in violation of Section 943.13(4), Florida Statutes (1977). In Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982), the court held that licensure did not nullify the disqualifying effect of a conviction that occurred before licensure. But the question whether respondent Pfeiffer's conviction was disqualifying was precisely the question litigated earlier and conclusively resolved against petitioner.

This same conviction and underlying conduct are now alleged to constitute "misconduct which seriously reduces (Pfeiffer's) effectiveness as a law enforcement officer," in violation of another statutory provision, Section 943.145, Florida Statutes (1983). Although it could be argued that the difference in statutes and the additional element of allegedly reduced effectiveness takes this case outside the technical limits of res judicata, the doctrine does apply in administrative proceedings, see Doheny v. Grove Isle, Ltd., 442 So.2d 966, 975-6 and cases cited there, and the First District has recently ruled that a licensing agency like petitioner lacks jurisdiction over misconduct occurring before licensure, so long as the application for license was not falsified. Alam Farzad, M.D. v. Department of Professional Regulation, No. AP-337 (Fla. 1st DCA; Dec. 30, 1983). Here the licensing agency was fully aware of the conduct underlying the conviction and litigated the issue of its character, before granting the certificate it now seeks to revoke.

2.

The administrative complaint alleges that Section 943.145(3)(b), Florida Statutes (1983) proscribing willful misrepresentation of information on an employment application has been violated, but the factual allegations, if proven as pleaded, would not support this contention, for the reasons set out in the motion to dismiss.

3.

The remaining contention set forth in the administrative complaint, that the conduct there alleged has reduced respondent's effectiveness, is not supported by any allegation of misconduct occurring since licensure. In paragraph one, the misconduct is alleged to have occurred while respondent was in high school. In paragraph two, two separate incidents are alleged, one to have occurred when respondent was 15 and the other when he was 17 years old.

Nowhere is respondent's present age alleged. paragraph three contains no clue as to the time at which the misconduct there alleged might have occurred. Under the Farzad case, the administrative complaint is deficient for failure to allege that misconduct subsequent to licensure has reduced respondent's effectiveness.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal.

DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984.

COPIES FURNISHED:

Dean Bunch, Esquire

P. O. Drawer 1170 Tallahassee, Florida 32302

Dennis S. Valente, Esquire Department of Law Enforcement

P. O. Box 1489 Tallahassee, Florida 32302

Robert Dempsey, Commissioner Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 84-000446

Orders for Case No: 84-000446