STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDDIE LEWIS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6431

)

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 6, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Denis A. Deane Esquire

10680 Northwest 25th Street Suite 200

Miami, Florida 33172

For Respondent: Joseph S. White, Esquire

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 33202

PRELIMINARY STATEMENT

At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.

At hearing, petitioner offered composite exhibit 1, which was received into evidence. Respondent called no witnesses and offered no exhibits.

The transcript of hearing was not ordered, and the parties waived their right to submit proposed findings of fact.

FINDINGS OF FACT

1. On August 10, 1988, Metropolitan Dade County Department of Corrections and Rehabilitation, as the employing agency, applied for certification as a correctional officer on behalf of petitioner, Eddie Lewis (Lewis). Accompanying such application was an affidavit of compliance, dated August 10, 1988, signed by the Director of Metropolitan Dade County Department of Corrections and Rehabilitation (Department of Corrections) which comported with existing law,

   and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lewis had met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provisions of section 943.13 is the requirement that the applicant of good moral character. 1/

   
   

2. By letter dated November 7, 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission) notified Lewis and the Department of Corrections that his application for certification as a correctional officer was denied for lack of good moral character because:

   
   

   You made an intentional, unlawful threat by word or act, with a deadly weapon, a shotgun, but without intent to kill, to do violence to Walter Harrell, coupled with an apparent ability to do so, and did an act which created in Walter Harrell a well-founded fear that such violence was imminent.

   
   

3. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a Section 120.57(1), Florida Statutes, hearing. In his request for hearing, Lewis specifically denied that he had committed any of the acts which the Commission contended demonstrated a lack of good moral character.

   
   

4. The Commission forwarded Lewis' request for hearing to the Division of Administrative Hearings to conduct a formal hearing. At hearing, the Commission offered no proof that Lewis had committed any of the acts contained in its letter of denial, or which otherwise rendered questionable the prima facie showing of good moral character demonstrated by Lewis.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. The ultimate burden of persuasion of whether an application for certification as a correctional officer should be approved rests with the applicant. See: Rule 28-6.08(3), Florida Administrative Code, and Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the applicant has met his burden of proof by presenting a prima facie showing of good moral character, which the Commission has failed to rebut or contradict.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order approving Lewis'

application for certification as a correctional officer.

DONE AND ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April 1989.

ENDNOTE

1/ Included with the personnel file of Lewis was an affidavit of applicant (Lewis) attesting to his compliance with section 943.13 and a second affidavit of compliance executed by the Director. Both of these documents were verified on June 9, 1987, and Lewis contended that they were supportive of his contention that an earlier application had been submitted to the Commission which, because of inaction, was approved pursuant to Section 120.60(2), Florida Statutes. The proof fails, however, to support the conclusion that any application, other than that of August 10, 1988, was submitted to the Commission on behalf of Lewis.

COPIES FURNISHED:

Denis A. Dean, Esquire 10680 Northwest 25th Street Suite 200

Miami, Florida 33172

Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director

Criminal Just ice Standards and Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Darryl McLaughlin, Executive Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-006431

Orders for Case No: 88-006431