STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2229

)

IGNACIO F. MENOCAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 19 and 21, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Sharon D. Larson, Esquire

Assistant General Counsel Florida Department of

Law Enforcement Post Office Box 1489 2331 Phillips Road

Tallahassee, Florida 32308

For Respondent: Robert D. Klausner, Esquire

Atkinson, Jenne, Diner, Stone Cohen & Klausner, P.A.

1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 32022-2088

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a law enforcement officer in the State of Florida. Respondent was, at the times pertinent hereto, employed by the City of Miami Police Department as a police officer. By Paragraph 2 of its Administrative Complaint, Petitioner alleged the following facts:

2. On or about July 12, 1985, Respondent, Ignacio F. Menocal, did then unlawfully and knowingly sell or knowingly be in actual or constructive possession of more than 28 grams

of a mixture containing cocaine, a controlled substance defined in Section 893.03.

The Administrative Complaint alleged that the Respondent violated the provisions of Section 943.1395(5),(6), Florida Statutes, and of Rule 11B- 27.0011(4)(a), Florida Administrative Code, and that, consequently, he had failed to maintain the good moral character required of a law enforcement officer by Section 943.13(7), Florida Statutes.

Without objection from any party, the formal hearing in this proceeding was conducted, in part, in conjunction with the formal hearing in cases brought by Petitioner against two other law enforcement officers (DOAH Case No. 90-6162 and DOAH Case No. 90-3901 involving Vincent E. Collazo and Edwin M. Zabala, respectively). This procedure was adopted as a convenience to the U.S. Marshal's office because certain witnesses who presented testimony considered by Petitioner to be germane to all three cases were incarcerated in the federal prison system and because certain background testimony was relevant to all three cases. Separate records were made for each of these three cases and a separate Recommended Order will be simultaneously entered in each of these three cases.

At the formal hearing as to the allegations brought against Respondent Menocal, Petitioner presented the testimony of James E. Judd, and Rudolfo Arias. Petitioner also called as a witness Carlos Pedrera who refused to testify and who was withdrawn as a witness prior to his giving any substantive testimony.

Mr. Judd is an agent with the Federal Bureau of Investigation. Mr. Arias and Mr. Pedrera are both former City of Miami police officers who were, at the time of the formal hearing, incarcerated in the federal prison system. Petitioner presented one exhibit which was accepted into evidence without objection.

Petitioner presented one additional exhibit, a statement given by Carlos Pedrera, which was accepted into evidence as a hearsay statement over Respondent's objection. Respondent testified on his own behalf and presented the testimony of two other witnesses. Respondent introduced one exhibit which was accepted into evidence over Petitioner's objection.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 02-29286. At all times pertinent hereto, Respondent was a certified law enforcement officer.

   
   

2. The Respondent was employed as a police officer by the City of Miami Police Department from the time he went into the academy in 1981 through 1988. At the time of the formal hearing, Respondent was employed as a reserve police officer with the City of Virginia Gardens, a small municipality located in Dade County, Florida.

3. On May 31, 1985, a drug rip-off occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug rip-off occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug rip-off occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Menocal did not participate in any of these three drug rip-offs and he has not been prosecuted criminally.

   
   

4. Rudolfo Arias and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system and had been placed in the Federal Witness Protection Program. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for substantial benefits to him. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had implicated. Mr. Pedrera's refusal to testify was in spite of a plea agreement similar to that of Mr. Arias.

   
   

5. Mr. Arias was an officer with the City of Miami Police Department in 1985 and he knew Respondent as a fellow officer and as a friend.

   
   

6. The gravamen of the complaint brought against Respondent is based on accusations made by Mr. Arias These accusations are buttressed by the hearsay testimony of Mr. Pedrera, but of no other testimony or evidence.

   
   

7. The following is Mr. Arias's version of the pertinent events of July 12, 1985. According to Mr. Arias, he had gone to Mr. Pedrera's house to pick up Mr. Pedrera as part of their planned participation in the Tamiami Marina drug rip-off. Mr. Arias received a call from Respondent requesting him to come by Respondent's house to discuss a matter of importance. Mr. Arias and Mr. Pedrera went to Respondent's house before they went to the meeting place for the Tamiami Marina drug rip-off. When they arrived at Respondent's house, another person was present in the house, but the identity of this person was unknown to Arias or Pedrera. Mr. Arias contends that he and Pedrera were invited into Respondent's bedroom and shown a package shaped like a brick and wrapped in plastic which Respondent represented to be a kilo of cocaine. Neither Respondent, Mr. Arias, or Mr. Pedrera opened the package or attempted to test or weigh its contents. Mr. Arias contends that Respondent asked for Mr. Arias' assistance in selling the cocaine. Mr. Arias contends that Respondent wanted

   $25,000 for the sale, but that Respondent would give him the difference between the sales price and $25,000. Mr. Arias testified that when he told Respondent he would be unable to help sell the cocaine, Respondent told him that Oswaldo Cuello and Jose Benitez were coming to his house to discuss selling the cocaine. Mr. Cuello was a City of Miami police officer and Mr. Benitez was a drug dealer. Mr. Arias testified that after Cuello and Benitez arrived, he told them and the Respondent that he and other police officers were about to engage in the Tamiami Marina drug rip-off. Mr. Arias contends that Respondent wanted to participate in the drug rip-off, but that the leader of the expedition did not permit Respondent's participation. Mr. Arias contends that he and Pedrera then left to meet with the other participants in the drug rip-off.

8. Respondent denies the accusations made against him by Mr. Arias and by Mr. Pedrera and contends that neither man was present at his residence on July 12, 1985.

   
   

9. Little weight is given to Mr. Pedrera's hearsay testimony in light of his refusal to testify. Even if Mr. Pedrera's hearsay testimony was considered as buttressing that of Mr. Arias, the circumstances under which their stories were first given and the questionable credibility of Mr. Arias and Mr. Pedrera 1/ render their testimony an insufficient basis upon which it can be concluded that the factual allegations of the Administrative Complaint have been established by clear and convincing evidence. 2/ The denial of these accusations by Respondent is found to be credible based, in part, on his demeanor. In addition, the undersigned has considered that Respondent has never been prosecuted criminally, there was no evidence that his credibility has been called into question, and he was employed as a reserve police officer by the City of Virginia Gardens after a thorough background check. His performance as a reserve police officer by the City of Virginia Gardens has been above suspicion.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

12. It is concluded that Petitioner has not established the allegations of the Administrative Complaint by clear and convincing evidence. Consequently, Petitioner has not established that Respondent lacks the good moral character required of law enforcement officers.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Ignacio F. Menocal.

RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991.

CLAUDE B. ARRINGTON

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 3rd day of July, 1991.

ENDNOTES

1/ In addition to Mr. Arias and Mr. Pedrera being convicted felons who received substantial benefits for the information they provided, the credibility of Mr.

Arias is further called into question by his admission that he had frequently fabricated probable cause in arrests he was making and that he had committed perjury while testifying against persons he had arrested.

2/ Mr. Arias's testimony that he discussed with Respondent that he and Mr. Pedrera were about to engage in a major drug rip-off while an unknown person was in Respondent's house lacks credibility.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2229

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1-6, 7, 9-10, and 15 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 8, 11, 12, and 14 are rejected as being subordinate to the findings made.

   
   

3. The proposed findings of fact in paragraph 13 are rejected as being unsubstantiated by the evidence.

   
   

4. The proposed findings of fact in paragraphs 16-30 are rejected as being unsubstantiated by clear and convincing evidence.

   
   

5. The proposed findings of fact in paragraph 31 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-5, 11-13, and 18-21 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6-10 and 14-15 are rejected as being subordinate to the findings made.

   
   

3. The proposed findings of fact in paragraphs 16 and 17 are rejected as being unnecessary to the conclusions reached and as being rhetorical statements and not findings of fact.

   
   

4. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. The conclusions reached in this proceeding were based on a weighing of the credibility of the evidence presented. If believed, there was sufficient evidence as to the weight of the alleged cocaine.

COPIES FURNISHED:

Sharon D. Larson, Esquire Joseph D. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Robert D. Klausner, Esquire 1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 33022-2088

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore Commissioner

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002229

Orders for Case No: 90-002229