STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD McGAHEE, )

)

Petitioner, )

)

vs. )

) CASE NO. 88-6433

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, DIVISION OF )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a hearing on October 12, 1989, to address respondent's third motion to dismiss or in the alternative to impose sanctions.

APPEARANCES

For Petitioner: Jayne C. Weintraub, Esquire

330 Biscayne Boulevard Penthouse

Miami, Florida 33132

and

Donald Papy, Esquire

19 West Flagler Street Suite 802

Miami, Florida 33130

For Respondent: Joseph S. White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

STATEMENT OF THE CASE

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

   
   

   You have unlawfully and knowingly been in actual possession of in excess of 28 grams of cocaine.

   You have associated with a convicted felon by

   living with a convicted felon and providing said felon with a firearm.

   
   

2. Following receipt of the Commission's letter of denial, McGahee filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, McGahee denied that he had possessed cocaine or lived with a convicted felon.

   
   

3. By letter dated December 23, 1988, the Commission referred this case to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Pursuant to notice dated January 10, 1989, the final hearing on McGahee's application for certification was scheduled for April 3, 1989; however, upon the ore tenus motion of McGahee's counsel, made at hearing, the matter was continued, and thereafter, rescheduled to commence October 17, 1989.

   
   

4. On May 5, 1989, the Commission propounded interrogatories and requests for admission to McGahee which, pertinent to the resolution of this case, related specifically to its contention that McGahee lacked the requisite good moral character for certification as a correctional officer because he had unlawfully and knowingly been in actual possession of in excess of 28 grams of cocaine. The pertinent interrogatories, numbered 7 through 15, were as follows:

   
   

   1. State whether or not the Petitioner Ronald McGahee attended any meeting(s) with Jorge Alonso on June 10, 1987.

   2. If Interrogatory Number 7 above is answered in the affirmative, state what the Petitioner Ronald McGahee's purpose was in attending such meeting(s).

   3. If Interrogatory Number 7 above is answered in the affirmative, state whether the Petitioner Ronald McGahee took physical possession of any bag, package or parcel, provide a description of such bag, package or parcel and describe the manner and duration of such possession.

   4. If Interrogatory Number 9 above is answered in the affirmative, state what the Petitioner Ronald McGahee believed or presumed the contents of such bag, package or parcel to be at the time Ronald McGahee took physical possession of the bag, package or parcel and how Ronald McGahee arrived at such belief or presumption.

   5. If Interrogatory Number 9 above is answered in the affirmative, state for what purpose the Petitioner Ronald McGahee took physical possession of the bag, package or parcel.

   6. If Interrogatory Number 9 above is answered in the affirmative, state the names of any persons to whom the Petitioner Ronald McGahee intended to deliver any portion of the contents of the bag, package or parcel and specify the content of any conversations between Ronald McGahee and any such persons

      concerning a delivery of any portion of the contents of the bag, package or parcel.

   7. If Interrogatory Number 9 above is answered in the affirmative, state whether the Petitioner Ronald McGahee's taking of physical possession of the bag, package or parcel was voluntary and done of his own free will.

   8. If Interrogatory Number 13 above is answered in the negative, state specifically by whose actions and the manner of such actions, which rendered the Petitioner Ronald McGahee's acts as described in Number 13 involuntary or not of his own free will.

   9. If Interrogatory Number 9 above is answered in the affirmative, state whether the Petitioner Ronald McGahee had knowledge that Jorge Alonso was a law enforcement officer at the time Ronald McGahee took physical possession of any bag, package or parcel.

The pertinent requests for admissions, numbered 1 through 14, were as follows:

1. The Petitioner herein, Ronald McGahee, personally met with Jorge Alonso on June 10, 1987 in the area of 2500 Brickell Avenue, Miami, Dade County, Florida.

2. At the meeting referenced in item one above, Jorge Alonso showed the Petitioner herein, Ronald McGahee, a brown bag located in the trunk of the automobile which Jorge Alonso had driven to the said meeting and parked at the location of the said meeting.

3. The Petitioner herein, Ronald McGahee, inspected the brown bag referenced in item two above and examined a portion of the bag's contents.

4. Upon completion of the Petitioner herein Ronald McGahee's inspection and examination of the brown bag as referenced in item three above, Ronald McGahee picked up and took physical possession of the brown bag and its contents, carried the brown bag and its contents to another automobile which he had driven to the meeting described in item one above, and placed the brown bag and its contents inside the said automobile.

5. At the time the Petitioner herein Ronald McGahee did the acts described in item four above, he believed the contents of the brown bag to be approximately one kilogram of cocaine.

6. At the time the Petitioner Ronald McGahee, did the acts described in item four above,

   the contents of the brown bag were in fact

   989.5 grams of cocaine, as named or described

   in Section 893.03(2)(a)4, Florida Statutes, or a mixture containing cocaine of such weight.

7. Prior to the time the Petitioner Ronald McGahee did the acts described in item four above, he had agreed to pay Jorge Alonso

   $16,000 in exchange for the receipt of one kilogram of cocaine, or a mixture containing cocaine of such weight, from Jorge Alonso.

8. At the time the Petitioner, Ronald McGahee did the acts described in items one through seven, inclusive, above, Ronald McGahee was unaware that Jorge Alonso was a law enforcement officer.

9. At the time the Petitioner Ronald McGahee did the acts described in items one through seven, inclusive, above, Ronald McGahee was not engaged in a criminal investigation concerning any suspected violations or anticipated violations of Chapter 893, Florida Statutes by Jorge Alonso.

1O. No person has threatened the Petitioner Ronald McGahee with death or great bodily harm or other physical injury if he did not do the acts described in items one through seven, inclusive, above.

1. No person has threatened the Petitioner Ronald McGahee with the infliction of death or great bodily harm or other physical injury upon another person if he did not do the acts described in items one through seven, inclusive, above.

2. No person obtained the Petitioner Ronald McGahee's participation in the acts described in items one through seven, inclusive, above by threats and/or extortion as described in Section 836.05, Florida Statutes.

3. At the time the Petitioner Ronald McGahee did the acts described in items one through seven, inclusive, above, he was conscious, aware of his surroundings and able to understand the nature and quality of his actions.

4. The Petitioner Ronald McGahee participated in the acts described in items one through seven, inclusive, above volitionally.

McGahee objected to each of the foregoing interrogatories and requests for admission, claiming a Fifth Amendment privilege not to respond.

1. By motion filed July 18, 1989, the Commission requested that an order be entered compelling McGahee to answer the subject interrogatories and requests for admission or, alternatively, that a recommended order of dismissal be rendered. The Commission's motion to compel discovery was granted by order of July 28, 1989, and McGahee was directed to serve his answers to the subject interrogatories and requests for admission within ten days.

2. Rather than answer the subject interrogatories and requests for admissions as ordered, McGahee filed a response, dated August 7, 1989, which stated in pertinent part:

   
   

   ...RONALD McGAHEE must respectfully object to the interrogatories and requests for admissions...or otherwise be forced to waive the significant, and basic rights granted by the Fifth Amendment to the United States Constitution, as well as Article I, Section 9, of the Florida Constitution.

   * * *

   WHEREFORE, RONALD McGAHEE respectfully declines to answer interrogatories 1-15 and requests for admission 1-7, and further, requests this tribunal to reconsider its previous decision to compel this discovery.

   
   

3. In response to McGahee's failure to answer the subject interrogatories and requests for admission, as mandated by the order of July 28, 1989, the Commission again moved for the entry of a recommended order of dismissal. McGahee, in turn, moved for an extension of time to file his answers and filed "answers" to the subject interrogatories and requests for admission. The answer tended by McGahee to interrogatories 7-15 was as follows:

   
   

   Pursuant to Florida Rules of Civil Procedure 1.340(c), F.D.L.E. may examine, inspect or audit and make copies of the following:

   Circuit Court Case No. 87-19089 Eleventh Judicial Circuit of Florida, Criminal Division

   If respondent does not have access to these public records, copies will be provided.

   
   

   In response to the requests for admission, McGahee again asserted a Fifth Amendment privilege to requests 1-5, answered without knowledge to request 6, denied request 7, and to requests 8-14 responded "not applicable since item 6 was answered without knowledge and 7 was denied."

   
   

4. By order of September 7, 1989, McGahee's motion for an extension of time to comply with the order of July 28, 1989 was granted and the Commission's motion to dismiss was denied. As to the Commission's motion to strike, the order provided:

   
   

   ...Respondent's [Commission's] motion to strike petitioner's [McGahee's] proffer of discovery is construed as a motion to test the sufficiency of such responses and, as such, is granted. Specifically, petitioner's answers to interrogatories 7 through 15 are found to be nonresponsive. Petitioner's response to requests for admission numbered 1 through 5 is contrary to the order of July 28, 1989, and such responses are, therefore, deemed admitted. Petitioner's answers to requests for admission numbered 6 and 8

   through 14 are not responsive. Petitioner shall, therefore, file a complete response to interrogatories numbered 7 through 15 and requests for admission numbered 6 and 8 through 14 within ten (10) days of the date of this order.

   
   

   At McGahee's request, an extension of time was given to September 25, 1989, to comply with this order.

   
   

5. The answer, thereafter, tendered by McGahee to interrogatories 7 through 15 was as follows:

   
   

   Pursuant to Florida Rules of Civil Procedure 1.340(b), F.D.L.E. may examine, inspect or audit and make copies of circuit court Case No. 87-19089, Eleventh Judicial Circuit of Florida, Criminal Division, specifically, see Sworn Motion and Supplemental Motion to Dismiss With Incorporated Memoranda of Law and Order of Circuit Judge Frederick Moreno (April 25, 1988) dismissing the charge based upon due process violations (egregious conduct of the State) and entrapment.

   
   

   In response to requests for admission numbered 6 and 8 through 14, McGahee again asserted a Fifth Amendment privilege.

   
   

6. On September 27, 1989, the Commission filed its third motion to dismiss or, alternatively for sanctions because of McGahee's failure to answer the subject interrogatories and requests for admission. Notably, the final hearing in this matter was scheduled to commence October 17, 1989, and the Commission, notwithstanding the prior orders directing McGahee to answer, had not yet received any responsive answers to the subject interrogatories and requests for admission.

   
   

7. To date, McGahee has failed to comply with two orders that have directed him to answer the subject interrogatories and requests for admission. His reference to collateral court documents was previously found to be unresponsive, and his latest answer is no more responsive. It is apparent from the hearings held in this matter, as well as McGahee's supplemental response to the motion to dismiss, that he has no intention of answering the subject questions. As stated in his supplemental response:

   
   

   We recognize that this Court (sic) found McGahee has no such right (Fifth Amendment privilege) in this proceeding. However, McGahee seeks to preserve this right pending a final decision by the Court of Appeal, if necessary. Unfortunately, it would be impossible for McGahee to waive his Fifth Amendment Right at this juncture and then

   "unwaive it" should , an appellate court find a due process right.

   CONCLUSION

   
   

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

   
   

9. McGahee, as the applicant for certification as a correctional officer, carries the ultimate burden of persuasion to demonstrate entitlement throughout the proceeding. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). Pertinent to this case, that burden includes the requirement that he demonstrate the requisite good moral character for certification as a correctional officer. Section 943.13(7), Florida Statutes, and Rule 11B-27.O011, Florida Administrative Code. Here, the Commission contends that McGahee lacks the requisite good moral character because he had "unlawfully and knowingly been in actual possession of in excess of 28 grams of cocaine," a felony of the first degree. Section 893.135(1)(b), Florida Statutes. McGahee has, however, resisted all efforts of the Commission to acquire from him any statement or admission regarding his participation in the offense, by either asserting a Fifth Amendment privilege or directing the Commission to collateral sources of information rather than responding directly to the questions posed, notwithstanding numerous orders directing him to answer the interrogatories and requests for admission as propounded.

   
   

10. As the applicant seeking relief, McGahee may not invoke the Fifth Amendment in this proceeding to shield him from inquiry into his participation in the offense, and continue to maintain this action. Minor v. Minor, 240 So.2d

301 (Fla. 1970), Stockham v. Stockham, 168 So.2d 320 (Fla. 1964), Rollins Burdick Hunter v. Euroclassics, Ltd., 502 So.2d 959 (Fla. 3d DCA 1987), and City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978). Nor may he, by referring the Commission to collateral documents, avoid his obligation to answer the interrogatories as propounded and as previously ordered. In this regard, McGahee's reliance upon Rule 1.340(c), F.R.C.P., as authorizing a response by reference to collateral documents, was previously found to be misplaced and his answers nonresponsive. That rule authorizes a party to produce his records when the answer to an interrogatory may be derived from the records of that party and where the burden of deriving or ascertaining the answer is substantially the same for both parties. Here, the records are not those of McGahee, and they did not provide a direct or definitive response to the interrogatories. More pertinent to this case, are the following provisions of Rule 1.340(1), F.R.C.P.:

...any party may serve upon any other

party written interrogatories to be answered

1. by the party to whom the interrogatories are directed...Each interrogatory shall be answered separately and fully in writing under oath.... (emphasis added).

McGahee's answers to interrogatories fail to conform with existent law or the prior orders entered in this case.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that a final order be entered dismissing the request for formal hearing filed by petitioner, Ronald McGahee.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of October 1989.

COPIES FURNISHED:

Jayne C. Weintraub, Esquire

330 Biscayne Boulevard Penthouse

Miami, Florida 33132

Donald Papy, Esquire

19 West Flagler Street Suite 802

Miami, Florida 33130

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcment

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

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 16th day of October, 1989.

Docket for Case No: 88-006433

Orders for Case No: 88-006433