STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4848

)

THEODORE HOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 5 and 18, 1990 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489 Tallahassee, FL 32302

For Respondent: Joseph Morrell, Esquire

Norris D. Woolfork, III, Esq Woolfork, Morrell and

Williams, P.A.

Post Office Box 540085 Orlando, FL 32854-0085

STATEMENT OF THE ISSUES

Whether Respondent unlawfully tampered with the utility meter at his residence in order to avoid payment of utility charges.

Whether Respondent damaged his utility meter as a result of the alleged tampering with his utility meter.

Whether the actions of Respondent violated the provisions of Sections 943.1395(5),(6), Florida Statutes and Rule 11B- 27.0011(4)(b), Florida Administrative Code by perpetration of an act which would constitute failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

Respondent is a certified law enforcement officer charged by Petitioner in an Administrative Complaint with violations of the provisions of Section 943.1395, Florida Statutes and the applicable rules. Respondent denied the allegations and requested a formal administrative hearing. This proceeding followed.

At the hearing, Petitioner presented the testimony of seven witnesses, Robert D. Carney, formerly assigned to the "trouble truck", Orlando Utilities Commission (OUC); John G. Minnervini, meter tester, OUC; Johnny W. Jackson, Superintendent, Revenue Protection Section, OUC; Leonard C. Massey, retired meter tester foreman, OUC; John C. Tucker, Sun Belt Meter Service; Frank Scalletta, Investigator, Revenue Protection Section, OUC; Edward H. Mullis, Lieutenant, formerly with Special Affairs, Orange County Sheriff's Department. Six exhibits were admitted in evidence. Respondent presented the testimony of five witnesses, Malone Stewart, Orange County Sheriff's Department; John H. Fuller, Officer, Winter Park Police Department; Daisy Lehman, teacher, Orange County School Board; Charles McMillan, Jr., electrical contractor, James Williams, Mayor, City of Eatonville. Respondent testified in his own behalf.

Both parties requested the opportunity to file their proposed recommended orders within 20 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on January 18 and February 6, 1990. Petitioner filed a notice of waiver of filing of proposed recommended order on February 28, 1990. Respondent filed his proposed findings on March 2, 1990. The proposed findings have been given careful consideration and have been incorporated where appropriate. Specific rulings are addressed in the Appendix attached to this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent was certified by the Petitioner as a law enforcement officer on August 31, 1971 and was issued certificate number GF-8215.

   
   

2. In 1988, Respondent was charged in the County Court of Orange County, Florida with two misdemeanor offenses of willfully altering or tampering with a meter or other apparatus belonging to a utility and theft of utilities, in violation of subsections 812.01(2), Florida Statutes.

   
   

3. On April 20, 1988, Respondent entered a plea of nolo contendere to the offence of Theft of Utilities. The court withheld adjudication and placed Respondent on unsupervised probation for a term of one year with the condition that he remain at liberty without violating the law and he complete 50 hours of voluntary service. In addition, Respondent paid approximately $6,000 in restitution to OUC. The state announced a nolle prosequi of Count 1 of the Information.

   
   

4. Respondent successfully completed his probationary period.

   
   

5. On February 25, 1986, Robert Carney, OUC employee, was dispatched to Respondent's residence in response to Respondent's complaint of "flickering lights". He observed the lugs on the meter base of the electric utility meter, located on the outside screened porch, to be burned out. There was no plastic

   seal on the meter base at the time of his inspection, and the prongs on the meter looked worn but the meter was operating properly. He advised someone at the residence to call an electrician and left new lugs to be installed. No other services were performed at Respondent's home by OUC.

   
   

6. On the same date, Respondent hired an electrical contractor who observed that the right hand jaw assembly was burned out. He replaced the entire jaw assembly and reinstalled the meter.

   
   

7. On June 11, 1987, after receiving a complaint, Frank J. Scalletta, Investigator, Revenue Protection Unit, OUC, went to 326 Ventura Avenue, Orlando, the residence of Respondent. He observed the meter, OUC #5C14567, in an inverted position, with the padlock open and the seal intact but lying inside.

   
   

8. An electrical meter installed upside down will run backwards and reduce the number of kilowatt hours of electricity that is recorded as being fed into a building, resulting in an incorrect reading.

   
   

9. On June 11, 1987 electric meter #5C14567 was removed from the meter box at Respondent's residence. It was replaced with a new electrical meter reading zero, which had been tested on May 26, 1987 and shown to be 99.92% accurate. A seal was installed to the base to avoid tampering. Meter #5C14567 had "shiny blades" down to bare copper on all four blades, which is evidence of possible tampering.

   
   

10. Test results on meter #5C14567 indicate that it was operating normally when removed from Respondent's home and that the worn prongs resulted from being pulled and inserted into the meter box from between 50 and 100 times. One of the prongs showed signs of heat damage.

    
    

11. Respondent's consumption of electricity was monitored from the date of the installation of the replacement meter until the end of 1989. Comparisons of Respondent's consumption level from 1979 to July, 1987 showed a significant increase in Respondent's consumption of electricity after July 13, 1987. This increase in consumption has been maintained through December, 1989. The comparison indicates that for the month of October 1985 there was a negative (or minus) reading on the meter.

    
    

12. Respondent lived alone at 326 Ventura Avenue, Orlando, Florida since 1979, except for a teenage son who resided with him for approximately two months during the year. During the period in question (February, 1986-July, 1987), he had done a substantial amount of overtime and worked a second job when no one was at home. During the summer of 1987, Respondent had surgery on a cyst and he used his hot tub extensively to facilitate the healing of his cyst, resulting in increased electrical consumption.

    
    

13. Respondent denied tampering with the meter or knowingly receiving electricity without it being reported for payment. Respondent testified that he entered a plea of nolo contendere to the charge of theft of utilities because the court proceedings had taken six months up to that time and high media attention gave him great anxiety. In addition, legal fees had mounted to over

    $12,000 and had nearly depleted his savings.

    
    

14. Respondent has been a law enforcement officer for over 25 years and has had no prior disciplinary problems. Respondent served for many years with the Winter Park Police Department, was promoted to the rank of Captain with the Orange County Sheriff's Department, and presently serves as Chief of Police for

    the City of Eatonville, Florida. Several witnesses testified as to Respondent's good character and reputation for truth and honesty in the law enforcement community and the community at large.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

16. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085- 943.255, Florida Statutes (1989), and to discipline those licensed thereunder who violate the law.

    
    

17. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Subsections 943.1395(5), (6), Florida Statutes (1989), establish grounds for which disciplinary action may be taken against a certified law enforcement officer who fails to maintain good moral character.

    
    

19. "Failure to maintain good moral character" has been defined as: (a) The perpetration by the officer of an act which would constitute any felony offenses, whether criminally prosecuted or not, or

    
    

    1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: (specific enumeration of criminal law violations omitted), or

       
       

    2. 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, or

       
       

    3. The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225.

    
    

    Rule 11B-27.0011, Florida Administrative Code.

    
    

20. When a violation has been proven, one or more of the following disciplinary actions may be taken:

    
    

    1. Revoke the certification of an officer.

       
       

    2. Suspension of certification for a period not to exceed two years.

       
       

    3. Placement on a probationary status for a period not to exceed two years, subject to terms and conditions imposed by the Commission.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the Commission.

    5. Issuance of a reprimand. Subsections 943.1395(5)and(6) , Florida Statutes (1989).

    
    

21. The evidence is clear and convincing that Respondent's electric meter was operating in an inverted position in June, 1987. It was not possible for the meter to have operated in that position for a long period of time without registering a negative reading. What the comparisons showed was an abnormally low reading for electrical consumption. In addition, the meter testers determined that the prongs on the old meter were extremely shiny and worn as a result of the coating, applied at the factory, being worn completely off. This is a further strong indicator of tampering. Further relevant evidence is Respondent's plea of nolo contendere to the misdemeanor charge of theft of utilities, in the County Court of Orange County, Florida. Respondent explained the circumstances surrounding his plea and did contest the inference that he engaged in illegal conduct. Kinney v. Department of State, 501 So.2d 129, 132 (Fla.5th DCA 1987); The Florida Bar v. Lancaster, 448 So.2d 1019 (Fla. 1984). However, they are not credible or persuasive. The facts are clear and convincing that Respondent did unlawfully tamper with the utility meter at his residence in order to avoid payment of utility charges, and that he damaged the meter as a result of the tampering.

    
    

22. As a result of the tampering and damage of the meter, Respondent is guilty of failure to maintain good moral character. The definition of failure to maintain good moral character has been defined by rule as set forth in pertinent part in paragraph 6. above. Although the acts perpetrated by Respondent are not specifically proscribed in Rule 11B-27.001(4)(b), F.A.C., these acts cause substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state. Rule 11B- 27.001(4)(d), Florida Administrative Code. This provision is in keeping with the First District Court of Appeals' observation that:

    
    

    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. An isolated unlawful act...does not necessarily establish bad moral character. But...repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that [is proscribed]. Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 at 1105 (Fla. 5th

    DCA 1977).

    
    

23. Respondent's long record in law enforcement and his reputation in the community mitigate against revoking his certification.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection

943.13(7), Florida Statutes (1989). It is further

RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose.

DONE AND ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 4th day of April, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Proposed Findings of Fact Submitted by Petitioner:

Petitioner waived the filing of proposed findings of fact. Proposed Findings of Fact Submitted by Respondent:

Accepted: unnumbered paragraphs 1,2,3,4 (on page 1)

The remainder of Respondent's proposed findings found on page two through four are accepted in part and rejected in part as: fact and argument intermixed; recitation of testimony of the witness; against the greater weight of the evidence; irrelevant evidence.

COPIES FURNISHED:

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

Joseph Morrell, Esquire Woolfork, Morrell, and

Williams, P.A.

Post Office Box 540085 Orlando, FL 32854-0085

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Docket for Case No: 89-004848

Orders for Case No: 89-004848