STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3871

)

ODALYS J. GARCIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on November 3, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Odalys Garcia, pro se

Post Office Box 471435 Miami, Florida 33247

STATEMENT OF THE ISSUES

The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by falsifying official records of the Florida Highway Patrol with intent to mislead her supervisors in violation of Section 943.1395(5), (6), Florida Statutes. 1/

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner against Respondent on June 20, 1989. The Respondent requested a hearing before the Division of Administrative Hearings on July 17, 1989. The matter was referred to the Director of the Division of Administrative Hearings for appointment of a Hearing Officer on July 20, 1989.

Petitioner filed a Motion for Continuance on October 4, 1989. An Order Continuing and Rescheduling Formal Hearing was entered on October 6, 1989, without opposition by Respondent. The matter was set for formal hearing on November 3, 1989, in Miami, Florida, pursuant to the Notice of Hearing issued on August 23, 1989, as amended by the Order Continuing and Rescheduling Formal Hearing.

At the formal hearing, Respondent moved ore tenus for a continuance so that she could obtain counsel. After hearing oral arguments on the record, Respondent's ore tenus motion was denied. Petitioner presented testimony from seven witnesses, and offered four exhibits, all of which were received into evidence without objection. Respondent offered seven exhibits, five of which were admitted without objection. Ruling was reserved on Respondent's Exhibits 4 and 5 for disposition in this Recommended Order. Respondent did not testify in her own behalf.

A transcript was ordered and filed with the Division of Administrative Hearings on November 27, 1989. Proposed findings of facts and conclusions of law were due on December 7, 1989. Petitioner filed its Motion for Leave to File Proposed Recommended Order Out of Time on December 14, 1989, which is granted by this Order. The Motion represented that the parties had conferred and agreed that Respondent would seek leave to file her Proposed Recommended Order on December 22, 1989. Petitioner filed its Proposed Recommended Order on December 14, 1989. As of the date of this Recommended Order, Respondent has not filed her Proposed Recommended Order. Petitioner's proposed findings of facts and conclusions of law are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Between March 13, 1987, and July 9, 1987, Respondent was a law enforcement officer certified by Petitioner. All events incident to the findings of fact in this Recommended Order occurred while Respondent was working in the ordinary course of her employment as a Florida Highway Patrol trooper in Miami, Florida.

   
   

2. On April 7, 1987, Respondent stopped motorist Donald McCarron for driving a vehicle with an expired tag. Respondent issued Mr. McCarron a correction card for driving a vehicle with an expired tag but did not issue motorist McCarron a written warning. Respondent claimed both a correction card and a written warning as work activity in her weekly report to her supervisor.

   
   

3. On June 23, 1987, Respondent stopped motorist James Merklein for speeding. Respondent issued Mr. Merklein a citation for speeding. Mr. Merklein did not have his vehicle registration in the car. Respondent verbally warned Mr. Merklein to carry his vehicle registration in the car, but did not issue motorist Merklein a written warning. Respondent claimed both a citation and a written warning as work activity in her weekly report to her supervisor.

   
   

4. The existence of incidents in addition to those involving motorists Merklein and McCarron was not established by competent and substantial evidence. One or two incidents in which Respondent failed to give correction cards and written warnings to motorists is not clear and convincing evidence of lack of good moral character. 2/

   
   

5. Respondent admitted to Lieutenant John C. Baker that she "on occasion" writes warnings and cards, leaves them in her patrol car seat, and forgets to give them to the violator. Such occasions occur only when Respondent has given a motorist a lengthy explanation. The record does not reflect that Respondent admitted to additional incidents alleged to have been documented by Sergeants Alvarez and Pelton. Instead, in the words of Lieutenant Baker, "she did not deny the allegations in the complaint."

6. Florida Highway Patrol trooper work activity, in the form of claimed written warnings and correction cards issued to motorists, form a significant portion of a trooper's report of weekly work performed. In order for a trooper to legitimately claim credit for written warnings or correction cards, the trooper must have given a copy of the document to the motorist in question. A Florida Highway Patrol supervisor, in formulating a subordinate performance evaluation for a given period, compiles statistics of the trooper's work activity and utilizes these statistics to rate the trooper's work performance. Evaluations form the basis of Florida Highway Patrol decisions concerning trooper retention, promotion, and salary increases.

   
   

7. During the Respondent's June, 1986, to June, 1987, Florida Highway Patrol work evaluation cycle, her work activity, as reported by her, was considered by the Florida Highway Patrol to be in the "low satisfactory" range.

   
   

8. Discounting the two incidents established by clear and convincing evidence in which Respondent claimed written warning and correction card work activity on her weekly report but failed to give the written warnings and correction cards to the motorist would not have caused her work activity to fall below satisfactory.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks to take action that is penal in nature, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Respondent is charged in the Administrative Complaint with unlawfully and knowingly falsifying official records of the Florida Highway Patrol with the intent to mislead her supervisors regarding her work. The Administrative Complaint further alleges that Respondent's actions violated the provisions of Subsections 943.1395(5) and (6), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(c) in that Respondent failed to maintain the qualifications established in Subsection 943.13(7). Subsection 943.13(7) requires that a law enforcement officer in the State of Florida have good moral character.

    
    

12. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida. Subsection 943.13(7) requires such officers to:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

13. Subsection 943.1395(5) in relevant part provides that:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10)

    
    

14. Subsection 943.1395(6) establishes certain lesser penalties for application in appropriate cases, requires the definition of "good moral character" to be adopted by rule, and requires that the definition adopted by rule be established as a statewide standard. 3/

    
    

15. The definition of "good moral character" adopted in Florida Administrative Code Rule 11B-27.0011(4) for the purpose of implementing disciplinary action upon a Florida law enforcement officer in relevant part provides that:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:

    ... (c) The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime....

    
    

16. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. The court defined moral character as follows:

    
    

    Moral character means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

17. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Florida Supreme Court stated that a finding of lack of "good moral character" includes:

    
    

    ... acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

18. The testimony of Sergeants Orlando D. Alvarez and Bradford A. Pelton regarding the statements of other motorists who did not testify at the formal hearing and for which there is no other direct evidence is not competent and substantial evidence upon which findings of fact may be based in a recommended order. Such testimony is hearsay within the meaning of Section 90.801, Florida Statutes, for which no exception exists.

    
    

19. The testimony of Sergeants Alvarez and Pelton regarding the statements of other motorists who did not testify at the formal hearing and for which there is no other direct evidence is not admissible under Subsection 120.58(1)(a), Florida Statutes. Subsection 120.58(1)(a) provides in relevant part:

    
    

    ... Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under S. 120.57.

    
    

    The hearsay testimony of Sergeants Alvarez and Pelton would not be admissible over objection in a civil action. Such testimony neither supplements nor explains competent and substantial evidence of the truth of the matters asserted. 4/

    
    

20. Respondent's admission to Lieutenant Baker did not encompass the specific incidents alleged to have been documented by Sergeants Alvarez and Pelton. Respondent admitted that "on occasion" she writes warnings and cards, leaves them in her patrol car seats, and forgets to give them to the violator. Respondent's admission to Lieutenant Baker is admissible as an exception to hearsay within the meaning of Subsection 90.803(18). Accordingly, Respondent's admission may form the basis of a finding of fact consistent with the scope of Respondent's admission. Respondent .did not admit any specific incidents to Lieutenant Baker. Instead, she admitted such incidents occurred on occasion and explained that such incidents were inadvertent.

    
    

21. The facts in this proceeding are distinguishable from those in cases cited by Petitioner as authority for its position. In Rosenfeld v. Criminal Justice Standards and Training Commission, 541 So.2d 745 (Fla. 3rd DCA 1989), the hearing officer admitted the hearsay statement of a third party which corroborated testimony of a witness at the hearing and Rosenfeld's out-of-court admissions. In the instant proceeding, the hearsay testimony of Sergeants Alvarez and Pelton corroborates and explains separate incidents which Respondent did not admit to and for which there is no separate competent and substantial evidence.

    
    

22. In Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986), the hearing officer did not allow into evidence Duke's confession that he had sex with his stepdaughter and a hearsay statement of his stepdaughter in which she stated that Dukes had engaged in sex with her. The Fourth District Court of Appeal reversed and remanded holding that Duke's confession should have been admitted. In the instant proceeding, Respondent's out of court admission has been admitted. The hearsay testimony of Sergeants Alvarez and Pelton, however, are not admissible because such testimony explains and corroborates matters not

    included in Respondent's admission and not otherwise established by competent and substantial evidence. See also, Astore v. Florida Real Estate Commission, 374 So.2d 40 (Fla. 3rd DCA 1979).

    
    

23. There is no clear and convincing circumstantial evidence that Respondent knowingly, intentionally, and falsely claimed to have performed work. Petitioner argues that a second element of the evidence is explained and supplemented by the hearsay statements of motorists McCarron and Merklein coupled with the testimony of Sergeant Pelton as to what documents the Respondent claimed credit for. Petitioner argues that this evidence circumstantially raises the issue that the Respondent knowingly, intentionally, and falsely claimed to have performed work. The hearsay statements of other motorists who did not testify at the hearing, according to Petitioner's argument, supplement this evidence by showing further evidence of intent on the part of Respondent to falsify documents.

    
    

24. Petitioner cites Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977) in support of its argument. In Pasco County, the First District Court of Appeal held that hearsay testimony on an issue was admissible under Section 120.58(1)(a) where other evidence, primarily circumstantial, was before the hearing officer on the same issue. In the instant proceeding, unlike Pasco County, no competent and substantial evidence of specific incidents of intentional falsification is of record which hearsay testimony can explain or corroborate.

    
    

25. Petitioner failed to satisfy its burden of proof with clear and convincing evidence that Respondent intentionally falsified official records of the Florida Highway Patrol with regard to her work activity and productivity. The evidence established that Respondent on occasion failed to give written warnings and correction cards to motorists and claimed credit for such activity on her weekly work report. Such action was inadvertent, rather than intentional. Petitioner established by clear and convincing evidence two incidents in which Respondent was involved in such inadvertent action. Petitioner cannot by hearsay testimony concerning additional incidents establish a pattern and practice of intentional falsification when such a pattern and practice is not established by competent and substantial evidence separate and apart from the hearsay testimony.

    
    

26. Respondent's occasional, inadvertent action in this proceeding is not indicative of the lack of good moral character required by Section 943.13(7), Florida Statutes. Inadvertently failing to give written warnings and correction cards in incidents involving two motorists and claiming credit for such activity in Respondent's weekly report is not the "perpetration by the officer" of acts which cause "substantial doubts" concerning Respondent's "honesty, fairness, or respect... for the laws of the state and nation..." within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(c).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of March, 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1990.

ENDNOTES

1/ All references to chapters, statutes, and sections are to Florida Statutes (1989) unless indicated otherwise.

2/ Counsel for Petitioner agreed during the formal hearing that one or two incidents did not establish the intent necessary to find lack of good moral character. Sgt. Pelton concurred in his testimony. Transcript at 150-152.

3/ Respondents' Exhibits 4 and 5 are relevant to this requirement and are therefore admitted over objection.

4/ There was no direct testimony by the motorists allegedto have been involved in the separate incidents and no other direct evidence was produced establishing the occurrence of the alleged separate incidents. The hearsay testimony of Sergeants Alvarez and Pelton did not supplement or explain competent and substantial evidence regarding the two incidents involving motorists Merklein and McCarron. Instead, such testimony attempted to supplement or explain alleged incidents for which there is no competent and substantial evidence of record.

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent submitted no proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 Included in Finding 1

2-7 Included in part in Findings 2, 3 Proposed findings regarding Respondent's state of mind were not established by clear and convincing evidence.

8-14, 16, 18,

20, 22-25 Rejected as irrelevant and immaterial

motorists not testifying at the formal hearing are rejected as hearsay.

1. Rejected. Not established by clear and convincing evidence.

   
   

2. Included in Finding 6

   
   

3. Included in Finding 7

   
   

4. Rejected. Not established by clear and

COPIES FURNISHED:

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Joseph S. White

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Odalys Garcia

Post Office Box 471435 Miami, Florida 33247

Docket for Case No: 89-003871

Orders for Case No: 89-003871