STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3896

)

LINDA S. LINTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Blountstown, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 24, 1991.

APPEARANCES

For Petitioner: John P. Booth, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Joan Stewart, Esquire

Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondent's correctional officer's certification should be disciplined.

PRELIMINARY STATEMENT

On June 21, 1990, the Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to discipline the correctional officer certification of the Respondent, Linda S. Linton. On January 23, 1991, a finding of probable cause as to an additional charge was made by the Petitioner. On March 26, 1991, the Administrative Complaint was amended to include the additional charge.

Specifically, the Complaint and Amended Complaint allege that the Respondent has failed to maintain the qualification of good moral character as required by Section 943.13(7), Florida Statutes. The Complaint and Amended Complaint further allege that, pursuant to Section 943.1395(5) & (6), Florida Statutes, the Respondent should be disciplined.

At the hearing, Petitioner called three witnesses to testify and offered ten exhibits into evidence. Respondent testified in her own behalf and called three witnesses to testify. Respondent also offered three exhibits into evidence. Additionally, both parties stipulated to the admission into evidence of one joint exhibit.

Petitioner and Respondent submitted Proposed Recommended Orders on August 5, 1991. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Linda S. Linton was certified by the Criminal Justice Standards and Training Commission on May 27, 1988, and was issued Certificate Number 11-87- 502-04.

   
   

2. Respondent began her employment with the Department of Corrections as a Correctional Officer I at Calhoun Correctional Institution on May 27, 1988. She has continued in that position to the present.

   
   

3. During her years with the Department, Ms. Linton received overall achieves performance standards ratings and has been rated as exceeding her standards in several specific categories. Her performance appraisals indicate that she excelled in the following areas:

   
   

   supervision of inmates in her area of responsibility;

   
   

   adherence to Department rules, regulations, policies and procedures;

   
   

   completion of all written reports and assignments in an accurate, concise and neat manner within specified time limits;

   
   

   maintenance of control of the inmate population through counseling and appropriate disciplinary actions; and

   
   

   completion of other related duties as assigned within specified time frames and according to supervisors' instructions.

   
   

4. The comments of her supervisors indicate that Ms. Linton is considered to be a conscientious, dedicated, reliable and dependable employee. However, in 1990, she was suspended 120 days for the misdemeanor conviction which is the subject of this case. Other than the discipline imposed by the Department of Corrections, the misdemeanor conviction has not affected or impaired Respondent's ability to perform her duties as a correctional officer.

   
   

5. The misdemeanor conviction in this case occurred after her licensure. However, the facts giving rise to the conviction occurred prior to her licensure as a correctional officer.

6. Prior to her employment with the Department of Corrections, Ms. Linton worked as a clerk in the Post Office. The Post Office was located in the Fiesta Food Store at Mexico Beach, Florida. Beginning in early 1987, Ms. Linton's duties included assisting Janis Brownell, the senior clerk at the post office, in the postal unit, putting up mail, waiting on the postal window, operating the cash register, selling postage stamps and money orders to the public and accepting items for mailing. Isaac "Ike" Duren and his brother operated the Mexico Beach Branch Post Office for a monthly fee pursuant to a contract with the United States Postal Service. Mr. Duren also was and is a real estate broker. His brokerage office was located within a block of the Post Office.

   
   

7. Ms. Linton had known the Duren family for approximately twenty years. She worked for Ike Duren's father at the convenience store for seven years prior to being hired by Ike Duren at the Post Office. Her pay was $2.35 per hour at the Post Office.

   
   

8. While working full-time at the Post Office, Ms. Linton attended night school at Gulf Coast Community College for four hours a night, five nights a week. Ms. Linton attended school in order to obtain the necessary educational credentials to become certified as a correctional officer. On weekends, she practiced at the firing range to achieve the level of firearm proficiency required for certification.

   
   

9. The Post Office generally maintained an inventory valued at around

   $5,000.00. The safe for the Post Office was located at the back of the area Mr. Duren provided for the Post Office. Those persons having access to the safe included Linton, Judy Hendricks, Janis Brownell, Ike Duren and his wife, as well as one or two employees of Duren's real estate office, Gulfaire Realty. On more than one occasion when she reported to work, Linton found that the safe had been left open overnight.

   
   

10. The cash/stamp drawer containing stamps and money was located at the front of the Post Office. At night, the cash/stamp drawer was removed from the front of the Post Office and placed in the safe. The key to the drawer remained in the drawer during working hours. The drawer was never locked during either the day or night.

    
    

11. The Post Office inventory was not audited when Linton began her employment. However, the inventory was apparently short at that time by about

    $50.00.

    
    

12. It was common practice for Gulfaire Real Estate employees to take sheets or rolls of stamps from the Post Office and leave slips of paper in the drawer denoting the amount taken. On several occasions Ms. Linton saw two or three slips in the drawer. She had been advised to remove the slips if a postal inspector came to the Post Office.

    
    

13. Janis Brownell handled the slips from the real estate office, ordered stamps and other supplies, and completed the daily worksheets. The daily worksheets showed the "running totals" of cash received and expended as well as inventory items received and sold to the public. These daily worksheets were sent to the Panama City Post Office. Either Judy Hendricks or Ms. Linton ordered inventory and completed the daily worksheets when Ms. Brownell could not. When Ms. Brownell could not be at the Post Office during regular working hours because of illness or death in her family, she would sometimes come in after hours to handle the ordering and accounting matters that Ms. Linton did not know how to do.

14. Ms. Linton and Ms. Brownell discussed the shortage in the inventory/cash several times prior to late 1987 when Ms. Brownell performed an audit. The audit verified a shortage of approximately fifty dollars. Around Christmas time of 1987 Ms. Linton and Ms. Brownell discussed the possible need to notify the postal inspectors so that they could audit the post office. Ms. Linton does not know whether Ms. Brownell discussed the shortage with Mr. Duren. Ms. Linton did not tell Mr. Duren of the shortage at that time since it was Ms. Brownell's duty to inform Mr. Duren. Eventually, however, Mr. Duren became aware of the shortage in the Post Office.

    
    

15. In February, 1988, at Duren's request, two postal inspectors audited the Mexico Beach Post Office. The audit revealed a shortage of $2,545.69 in the

    $5,000 inventory for which the contract unit was accountable. Upon questioning by the postal inspectors, Ms. Linton admitted that she had occasionally taken small amounts of money from postal funds in the cash/stamp drawer to purchase cokes or cookies at the convenience store. She believed such actions to be common practice and did not intend to steal any money since she intended to pay the money back when she left employment with Mr. Duren. She did not know the total amount she had taken. The postal inspectors prepared a statement for Linton to sign which estimated $600 as the amount of money she had taken. The postal inspectors told Ms. Linton that she could avoid prosecution if she made restitution for the total shortage and signed the statement they had prepared. She voluntarily signed a statement acknowledging that she had taken approximately $600.00 from the contract Post Office for her own use, without returning same. She told the inspectors as well as Mr. Duren that she had not taken the amount they estimated or the much larger total shortage of $2,545.69. However, she agreed to pay the entire amount of the shortage to Mr. Duren in order to put the matter behind her and move on to finishing her certification requirements. Ms. Linton agreed to the settlement as stated by the postal inspectors and signed papers which she thought satisfied all matters with the Postal Service.

    
    

16. Both Respondent and Mr. Duren understood that if Respondent repaid the amount of the shortage ($2,545.69), the Postal Service would take no further legal action against her.

    
    

17. As the postal contractor ultimately responsible for the postal contract, Mr. Duren immediately paid the Postal Service the entire amount of the shortage. Mr. Duren withheld Ms. Linton's last paycheck and applied it to the total she owed him of $2,545.69. Additionally, on March 21, 1988, Ms. Linton paid Mr. Duren $900.00 towards repayment of the shortage.

    
    

18. Mr. Duren had kept in contact with the Postal Service "every so often" to inform them whether Ms. Linton had made full restitution.

    
    

19. On May 19, 1988, a postal inspector came to Ms. Linton's house, showed her his badge identifying himself as a "Postal Inspector," and told her she had to pay full restitution that day or be taken to jail. She unsuccessfully attempted to borrow the amount of the shortage remaining unpaid. 1/ Ms. Linton could borrow only $1,000.00 from her brother-in-law Johnny D. Linton. Johnny D. Linton had borrowed the $1,000.00 on his signature at Northwest Finance in Port Saint Joe.

20. Ms. Linton told the postal inspector that she had tried to obtain the entire amount she owed but could not get all of it. She gave the inspector the

    $1,000 and received a receipt for the payment. The postal inspector, who had apparently been in contact with Mr. Duren, told Linton she had to "work out something" with Mr. Duren for the remainder of the shortage.

    
    

21. Following her conversation with the postal inspector, Ms. Linton drove to the real estate office to talk with Mr. Duren about the balance she owed after the $1,000.00 payment. The postal inspector, who drove in his own car, arrived at the real estate office after Ms. Linton and gave Mr. Duren the

    $1,000.00 payment. Mr. Duren told Ms. Linton that the postal inspector was waiting for his acknowledgment that the matter of restitution had been settled.

    
    

22. To settle the matter, Ms. Linton signed a promissory note in the amount of $1,161.50 that Mr. Duren had prepared. The amount of the promissory note was calculated by Mr. Duren and was purported to be the balance Linton owed on the $2,545.59 shortage, after she had paid her last paycheck and $1,900. Added to the shortage were Mr. Duren's attorney's fees. Again, the figures used by Mr. Duren, did not add up to the shortage amount plus a reasonable attorney's fee.

    
    

23. In addition to the promissory note, Duren's attorney, Tom Gibson, had prepared a mortgage for Linton's signature. The mortgage referred to an "Exhibit A" where the property description would ordinarily have been. Exhibit A was either not attached to the mortgage or Respondent did not look at it when she signed the mortgage. Ms. Linton understood that the mortgage referred to the property on which her home was built, Lots 8, 9 and 12 in Bay View Heights. She also understood that the mortgage would not "have to come into effect" since she signed the promissory note. Unknown to Respondent, Exhibit A mortgaged Lots 8, 9 and 12; and Lots 7, 10 and 16, Block F, in Bay View Heights. All of Respondent's property was also owned by her husband as tenants by the entirety. Her husband did not sign the mortgage and the mortgage was invalid as a lien against the property and particularly invalid against the homestead property. 2/

    
    

24. Ms. Linton owned no property apart from the property she and her husband owned jointly. Mr. Duren knew Ms. Linton was married, knew her husband, knew where their home was built, and knew the approximate value of lots in Bay View Heights. Mr. Duren was a real estate broker but did not obtain the husband's signature or verify in any way that the husband's signature was not needed on the mortgage he obtained from Respondent. 3/

    
    

25. Ms. Linton and her husband had purchased Lot 16, Block F from Quality Services, Inc., in Marianna under an agreement for deed and were making monthly payments on the Lot. Lot 7, Block F had two $35,000 mortgages on it, one to AVCO Financial Services and the other to Citizens Federal. Lot 10, Block F had no mortgage on it.

    
    

26. The Lintons built a house in 1986 on Lots 8, 9 and 12 to replace their house that had burned in 1985. On November 24, 1987, the new house was appraised at $100,000. They attempted to mortgage the house and property to AVCO Financial Services for $35,000. However, the mortgage was mistakenly placed on Lot 7. Subsequently, Citizens Federal repeated the AVCO mistake and placed a second mortgage for $35,000 on Lot 7 instead of on Lots 8, 9 and 12, as intended. The mistakes on lot identification were not discovered by the Lintons, AVCO or Citizens Federal until AVCO started to foreclose its mortgage. In an effort to clear title and place AVCO in the position it should have been

    in if the property description in AVCO's mortgage had been correct, the Lintons executed a quit claim deed on their home and lots 8, 9 and 12 on September 1, 1988, in lieu of foreclosure and corrected the prior mortgage error on Lot 7.

    
    

27. On September 28, 1988, the Lintons deeded Lot 16 back to Quality Service in lieu of foreclosure. In connection with returning Lot 16 to the original owner, Respondent signed an Affidavit under oath, attesting that no mortgage or lien existed against Lot 16. At the time she signed the affidavit she believed there was no mortgage or lien existing on the property. Moreover, apart from her belief, Mr. Duren's mortgage was invalid as either a mortgage or a lien. Both legally and factually there was no mortgage or lien in existence on Lot 16 and Respondent is not guilty of any false statement or perjury. Therefore, the portions of the Administrative Complaint and amended Administrative Complaint relating to this affidavit should be dismissed.

    
    

28. Ms. Linton had a number of financial difficulties and was unable to pay the $1,161.50 balance to Mr. Duren promptly. Mr. Duren wrote the postal inspector to encourage the Postal Service to criminally prosecute Ms. Linton and filed civil suit on the note against Ms. Linton. The civil suit resulted in a default judgment. Mr. Duren then wrote the superintendent at Calhoun Correctional Institution to tell him "what kind of employee he had" and to see if the superintendent would get Ms. Linton to make monthly payments on the default judgment he had obtained.

    
    

29. On December 20, 1988, the Grand Jury issued an indictment charging Ms. Linton with knowingly converting to her own use public funds entrusted to the United States Postal System of a value in excess of $100.00 in violation of Title 18, United States Code, Section 641. Pursuant to this indictment, the federal court issued a warrant for her arrest. Ms. Linton was unaware of either the indictment or the warrant for her arrest until the United States Marshall's Office telephoned her and notified her that it had a felony warrant for her arrest. In response to this notice, Ms. Linton drove to Panama City to be arrested and was released. The following day Ms. Linton consulted her supervisor, Lieutenant Durham, and reported her arrest in a letter to the superintendent at Calhoun Correctional Institution.

    
    

30. On June 29, 1989, the United States Attorney executed and filed an information that amended the charge against Ms. Linton to encompass a lesser period of time and a value of less than $100.00, thus, reducing the offense from a felony to a misdemeanor. Linton pled guilty to the charge as amended without going to trial. The United States District Court, Northern District of Florida, convicted her of violating the misdemeanor provision of Title 18, Unite States Code, Section 641, suspended her sentence and placed her on probation for a period of three years. Linton has voluntarily continued to pay restitution even though that was not a term of her sentence.

    
    

31. Linton notified the Department of the proceedings in her case as they occurred. The evidence was neither clear nor convincing that Respondent committed any felony offense against either the U.S. Postal Service or Mr. Duren. The evidence did demonstrate that Petitioner committed the misdemeanor offense of petty theft. However, even with this conviction, given the underlying facts of this case, the evidence did not demonstrate that Respondent lacked good moral character or is dishonest or unfair. In fact, the unrebutted evidence from her peers is that she possesses good moral character and should be allowed to continue as a correctional officer. The portions of the Administrative Complaint and amended Administrative Complaint relating to this misdemeanor conviction should be dismissed.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

33. Chapter 943, Florida Statutes, regulates the certification of law enforcement officers in Florida.

    
    

    Section 943.1395(5) requires:

    
    

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

    
    

34. Section 943.13(4), Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    
    

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

    
    

    Section 943.1395(6)(1988) establishes certain lesser penalties for application in appropriate cases.

    
    

35. Rule 11B-27.0011(4), Florida Administrative Code, defines good moral character. The Rule states in pertinent part:

    
    

    1. 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 good moral character, as required by Subsection 943.13(7), is defined as:

       
       

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 117.03, . . . 812.014(1)(d) [read 812.014(2)(d)][.]

       3. 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[.]

36. Respondent is charged with violating Section 943.1395(5) & (6) Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, by virtue of her failure to maintain the qualification of good moral character as required in Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4). The lack of "good moral character" alleged by Petitioner stems from its allegation that Linton did:

    
    

    "unlawfully, and knowingly obtain or use, or did endeavor to obtain or use U.S. currency, the property of the U.S. Postal Service, with the unlawful intent to either temporarily or permanently deprive the owner of a right to the property or a benefit therefrom or to appropriate the property to her own use;"

    
    

    and

    
    

    "On September 28, 1988, the Respondent, Linda S. Linton, did knowingly and intentionally sign an affidavit, under oath before a notary public, attesting to the absence of any mortgage or lien on certain real property. Respondent knew at that time that she had in fact, on May 19, 1988, given a mortgage for such property and therefore

    knew such affidavit was false in that regard."

    
    

37. Two issues are raised by the complaint. First, did Respondent commit the factual conduct alleged by Petitioner. Second, if she did, does the conduct equate to a lack of "good moral character" within the meaning of Section 943.13(7). 4/

    
    

38. Petitioner has the burden to prove by clear and convincing evidence that the Respondent violated Chapter 943 and is subject to discipline for that violation. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Walker v. State, 322 So.2d 612 (Fla. 3d DCA !975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

39. In this case, Respondent candidly admitted to having taken money from the cash/stamp drawer for cokes and cookies with the intent to at least temporarily deprive the U.S. Postal Service of its use or benefit. Even though Respondent intended to repay the shortage (at the time calculated to be approximately $50.00) before leaving her employment at the branch Post Office, she admits that her actions were wrong. To that extent Petitioner has clearly and convincingly established that Respondent committed acts which constituted the misdemeanor of petty theft. See Section 812.014, Florida Statutes. However, Petitioner presented no clear and convincing evidence that Linton had knowingly and intentionally made a false statement on the affidavit she signed in regards to the Lintons return of Lot 16 to Quality Services to avoid foreclosure. Similarly, the Petitioner failed to establish that Respondent perjured herself in regards to that transfer. When she signed the mortgage Mr. Duren presented to her on May 19, 1988, she had no intent to mortgage Lot 16 Block F. In fact, she did not know the contents of Exhibit A contained in Mr. Duren's mortgage and the information contained in the affidavit was accurate to the best of her knowledge. Moreover, Quality Services held the only valid mortgage on the property since Mr. Duren's mortgage was never valid and could

    not establish a lien or mortgage on the property. Therefore, the allegations contained in the Administrative Complaint and amended Administrative Complaint relating to the affidavit should be dismissed.

    
    

40. While Petitioner has carried its burden respecting the factual basis of the misdemeanor conviction, Petitioner has not carried its burden of demonstrating that Linda S. Linton has failed to maintain a "good moral character" as required by Section 943.13(7), Florida Statutes. This conclusion is supported by a series of cases dealing with the issue of good moral character. See, Bachynsky v. State, Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985); McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Florida Board of Bar Examiners re: G.W.L., 364 So.2d 454 (Fla. 1978), Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977).

    
    

41. An examination of these cases reveals three board principles relating to the determination whether an individual is of good moral character. First, isolated acts of indiscretion do not establish a lack of good moral character. McClung, 458 So.2d at 888 and Zemour, 347 So.2d at 1105. Second, the conduct of the individual must be such as to raise substantial and continuing doubts about the person's honesty, fairness and respect for the law. Florida Board of Bar Examiners, 364 So.2d at 458 and Zemour, 347 So.2d at 1105. Finally, there must be a rational relationship between the conduct and the person's ability to perform in his chosen profession. Bachynsky, 471 So.2d at 1311; Florida Board of Bar Examiners, 364 So.2d at 458.

    
    

42. The intent of the good moral character requirement in a professional licensing statute has been recognized by the Court as a means of protecting the public from licensees who have evidenced dishonesty in activities relating to their profession. Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA !981). However, the term is not restricted to the common law notion of moral turpitude. In Florida Board of Bar Examiners, re G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Florida Supreme Court ruled that:

    
    

    A more appropriate definition of the phrase (good moral character) requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individuals honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

43. In this case, Petitioner relies on the isolated incident of Linton's having taken less than $100 in U.S. currency from the Post Office and spending it at the convenience store where the Post Office was located. Both the Post Office and the convenience store were operated by Ike Duren, and Linton intended to "square" the matter with Duren, paying him for the shortage for which she was responsible prior to taking her position as a correctional officer. She paid more than $1,900 of the total shortage in an effort to make restitution and clear the record. Only, Ms. Linton's financial difficulties kept her from paying the entire amount.

    
    

44. At every turn, she attempted and believed she had settled the matter with Duren. When financial trouble prevented prompt payment of the balance, Ike Duren, not the Postal Service, reactivated the prosecution.

45. Certainly, Ms. Linton's conduct cannot be condoned, however, such an isolated incident falls short of establishing Linton as lacking good moral character. This single incident stands in sharp contrast to Linton's reputation as a good, reliable, hard working, honest correctional officer. Given the evidence in this case, Petitioner has failed to demonstrate that this isolated incident is so egregious as to raise substantial and continuing doubts regarding Linton's honesty, fairness and respect for the law.

    
    

46. Finally, it is apparent that the conviction in federal court has not interfered in any manner with Linton's ability to perform her duties in a professional and fair fashion. On the contrary, the evidence establishes that Linton has in the past and continues in the present to perform her correctional duties in an exemplary fashion.

    
    

47. Obviously, there may be instances where conduct of the nature committed by Linton, in conjunction with the individual's background, can be equated with a lack of good moral character. In the instant case there is insufficient factual predicate to equate Linton's conduct in this case to a lack of good moral character within the meaning of Section 943.13(7), Florida Statutes. Simply put, Linton's previous work record, her current work record, her reputation and continued ability to perform in her chosen profession demonstrate that her conduct was isolated and not reflective of a lack of good moral character on Linton's part. Thus, it must be concluded that no violation of Section 943.13(7) has occurred.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Linda S. Linton be dismissed.

RECOMMENDED this 28th day of October, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

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 28th day of October, 1991.

ENDNOTES

1/ The unpaid balance of the shortage was unclear because Mr. Duren kept adding additional sums to the amount of the shortage and using the authority of the

U.S. Postmaster to force payment of those increased sums.

2/ Ms. Linton did not have any significant knowledge of real property law. Ms. Linton did not want her husband to know of her dealings with Mr. Duren because of the bad feelings which her husband held toward Mr. Duren. She feared Mr.

Duren's treatment of her would cause her husband to do bodily harm to Mr. Duren.

3/ On the whole, Mr. Duren's testimony regarding the mortgage, his knowledge of real estate law and Respondent's payments on the postal shortage were not credible.

4/ Section 943.13 previously disallowed certification for persons convicted of a misdemeanor involving moral turpitude. This was held to include embezzlement. Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982). However, in 1984 the Legislature amended this law to disallow only those convicted of a misdemeanor involving perjury or a false statement. Ch. 84-258, Laws of Florida. Thus, there is no longer an irrebuttable presumption that those convicted of misdemeanor embezzlement or, in this case theft, are not of "good moral character."

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3896

1. The facts contained in paragraphs 1, 2, 3, 5, 6, 7, 9 and 15 of Petitioner's Proposed Findings of Fact are adopted, in substance, insofar as material.

   
   

2. The facts contained in paragraphs 4, 8, and 10 of Petitioner's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in paragraphs 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

   
   

4. The facts contained in paragraph 11 of Petitioner's Proposed Findings of Fact are adopted except for the Respondent's agreement to mortgage all of her property which was not shown by the evidence.

   
   

5. The facts contained in paragraph 14 of Petitioner's Proposed Findings of Fact are adopted except for Respondent's intent to mortgage Lot 16 which was not shown by the evidence.

6. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,

14, 15, 17, 18, 19, 20, 21,22, 23, 24, 25, 27, 28, 29, 30 and 31 of Respondent's

Proposed Findings of Fact are adopted in substance, insofar as material.

1. The facts contained in paragraphs 16 and 32 of Respondent Proposed Findings of Fact are subordinate.

   
   

2. The facts contained in paragraphs 26 of Respondent's Proposed Findings of Fact are irrelevant.

COPIES FURNISHED:

John P. Booth, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Joan Stewart, Esquire

Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore Commissioner

Criminal Justice Standards Training Commission

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

vs. DOAH CASE NUMBER: 90-3896

CJSTC CASE NUMBER: C-1768

LINDA S. LINTON,

Certificate Number: 11-87-502-04,

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant the Section 120.57(1)(b)(9), F.S., at a public hearing on October 29, 1992, in Orlando, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was not present but was represented by counsel at the proceedings.

Upon a complete review of the transcript of the record of hearing held on June 24, 1991, in Blountstown, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated October 28, 1991, the Order on Remand dated August 25, 1992, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed there to, (which are attached hereto and incorporated by reference) the Commission adopts the Hearing Officers conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached here to, adopted and fully incorporated herein by reference.

There is competent and substantial evidence to support the Commissions findings and conclusions.

The disposition of the above styled cause recommended by the Hearing Officer is hereby rejected as unsupported by the Conclusions of Law of the Commission.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number: 11-87-502-04, is hereby suspended for a period of one hundred and twenty (120) days, said suspension to be deemed to have begun on August 18, 1989. In addition Respondent's certification shall be placed upon probation for two (2) years from the effective date of this final order. As a condition of probation the Respondent shall violate no provision of Chapter 943, F.S. or 11B, F.A.C. If at any time during said probationary period the Respondent's certificate shall go inactive the probationary period shall similarly go inactive and upon reactivation of said certification the probation shall similarly be reactivated for the remainder of the period unfulfilled.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 5th day of February, 1993.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

RODNEY DOSS CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to LINDA S. LINTON, Route 1 Box 87A, Wewahitchka, Florida 32465 and Joan Stewart, Esquire, 300 East Brevard Street, Tallahassee Florida 32301 by

U.S. Mail on or before 5:00 P.M., this 5 day of February, 1993.

COPIES FURNISHED:

Calhoun Correctional Institution

Docket for Case No: 90-003896

Orders for Case No: 90-003896