STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2354

)

JACK J. CURCIO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on June 2, 1988, in Deland, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Jack J. Curcio, pro se

1931 Stanton Street

Deltona, Florida 32738 BACKGROUND

On March 31, 1988, Petitioner filed an Administrative Complaint alleging that Respondent unlawfully solicited a man to engage in a sex act in a public place.

Respondent filed an undated Election of Rights in which he demanded a formal hearing.

Petitioner presented four witnesses. Respondent presented one witness.

Petitioner offered into evidence no exhibits. Respondent offered into evidence no exhibits.

The transcript was filed on June 24, 1988. Petitioner filed a proposed recommended order. Respondent filed none. Paragraphs 1-18 and 21 of the proposed findings of fact are adopted; the remainder of the proposed findings are rejected as irrelevant, except that Paragraphs 28 and 29 are rejected as subordinate.

FINDINGS OF FACT

1. Respondent is currently certified by Petitioner as a corrections officer and holds certificate number 68-86-502-01, which was issued on March 14, 1986. At the time of the events in question, Respondent was employed as a correctional officer by the Orange County Sheriff's Office.

   
   

2. On April 4, 1987, Sergeant Frank Fink of the Orlando Police Department was working undercover in plainclothes in Langford Park, which is located at 1800 East Central Boulevard in Orlando.

   
   

3. Langford Park is a known gathering place for homosexuals. It is located in a residential neighborhood and near a school. Sgt. Fink's assignment was to work as part of a homosexual detail and arrest anyone who offered to commit a lewd act, which by Orlando City Ordinance 43-18 is defined as anything contrary to acceptable public standards.

   
   

4. At approximately 6:00 p.m., while it was still daylight, Sgt. Fink observed Respondent near the restrooms. Ten to twenty minutes later, Sgt. Fink saw Respondent elsewhere in the park, talking to another man. Shortly thereafter, Sgt. Fink saw Respondent seated in a gazebo in a densely vegetated portion of the park. Sgt. Fink seated himself beside Respondent, about five feet away, and commented that it was a beautiful day and nice park.

   
   

5. The ensuing conversation, which proceeded in a normal tone and volume so as to be clearly understood by both men, was innocuous up to the point at which Respondent asked Sgt. Fink what kind of people came to the park and Sgt. Fink answered, mostly gays. Then Respondent asked what these people did in the park, and Sgt. Fink answered, oral sex. Respondent asked if these people ever got caught, and Sgt. Fink replied, sometimes. Respondent asked where such acts took place, and Sgt. Fink told him, on the trails behind the bushes.

   
   

6. Respondent then informed Sgt. Fink that Respondent went to a local pornographic newsstand and watched films of homosexual acts. He told Sgt. Fink that men performed oral sex on each other in booths at the newsstand.

   
   

7. At this point, Respondent told Sgt. Fink that Respondent was thinking about performing sex with another man and that he would like to perform oral sex on Sgt. Fink. After confirming his understanding of Respondent's offer, Sgt. Fink asked if Respondent wanted to pay him money for the act, but Respondent declined. Respondent indicated that he did not want to get caught, so Sgt. Fink led him down a trail to a safe place.

   
   

8. After leading him about 100 yards, Sgt. Fink took Respondent to police waiting in a clearing within the park where Respondent was arrested for lewd behavior.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.

   
   

10. Section 943.1395(5), Florida Statutes, provides that Petitioner shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes.

11. Section 943.13(7), Florida Statutes, provides that any person employed as a correctional officer shall have "good moral character."

    
    

12. Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. The actions and conduct of Respondent do not constitute good moral character.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of violating the requirement of good moral character and revoking his certificate as a corrections officer.

DONE and RECOMMENDED this 8th day of August, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988.

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jack J. Curcio, pro se 1931 Stanton Street

Deltona, Florida 32738

Robert R. Dempsey Executive Director

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Janet E. Ferris General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell Director

Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-002354

Orders for Case No: 88-002354