STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5487

)

ANTHONY SCRIMA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 11, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Sharon D. Larson, Esquire

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

For Respondent: Terence L. LaBelle, Esquire

200 Southeast Sixth Street Suite 300

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

The issue is whether the certification of the Respondent should be revoked or disciplined for his failure to maintain good moral character.

PRELIMINARY STATEMENT

The Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission filed an Administrative Complaint against the Respondent alleging that he had failed to maintain good moral character as required by Section 943.13(7) and 943.1395(5) and (6) by shoplifting a jacket from a department store in Hollywood, Florida. At the hearing, the Department offered two exhibits in evidence, proof of Mr. Scrima's certification, and a certified copy of the docket sheet in a misdemeanor action pending against Mr. Scrima in the county court for Broward County, Florida reflecting that he pled nolo contendere to a charge of theft, that adjudication of guilt was withheld and that he was sentenced to pay a fine of $125. The Department also presented the testimony of Kathy Van Damas and Richard Fenlon. Mr. Scrima testified in his own behalf, and offered a composite exhibit of letters of reference. These were admitted only for purposes of assessing a penalty, if Mr. Scrima were to be

found guilty of misconduct. The transcript of the hearing was filed on January 31, 1991, and the Commission filed a proposed recommended order; Mr. Scrima did not. Rulings on the proposed findings are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Anthony Scrima was certified by the Criminal Justice Standards and Training Commission on April 25, 1980, and holds certificate C-7401. He has been employed as a correctional officer by the Broward County Sheriff's Office since 1988. He was certified by the Commission at the time of the events alleged in the Administrative Complaint.

   
   

2. Mr. Scrima has served as the warehouse manager for the Broward Correctional Institution for a number of years and is in charge of receiving goods at the institution, issuing the stock, property control, and general inventory at the institution.

   
   

3. January 23, 1988, Mr. Scrima went to the Burdine's Department Store at Hollywood Fashion Center in Hollywood, Florida with his daughter to buy a birthday present for his niece. While there, he met his nephew, John Hutchens, in the company of high school-aged friends. Because the weather had become warmer during the day, John Hutchens asked Mr. Scrima to take a jacket home for him, so he would not have to continue carrying it around.

   
   

4. Mr. Scrima then went into the women's department to buy his gift. When he left the store with his purchase and what he believed to be his nephew's jacket, he was confronted by a store security employee, Kathy Van Damas and a young black male security employee, Bobby Smith. They asked him to come back to the store to talk to them about the jacket, and he agreed to return with them.

   
   

5. In the security office Ms. Van Damas accused Mr. Scrima of having removed the tag from the jacket and taking it from the store without paying for it. Mr. Scrima denied that he had stolen the jacket, but did offer to pay the

   $145 Ms. Van Damas claimed was the price of the jacket in order to settle the matter. Ms. Van Damas declined the offer, and instead called the Hollywood Police Department to the store and ultimately pressed the case in court on behalf of the department store.

   
   

6. Ms. Van Damas' testimony that she had observed Mr. Scrima take the jacket from a rack, tear the tickets off the jacket, throw them to the floor and then wear the jacket out of the store is not persuasive for two reasons. First, it is inherently improbable that Mr. Scrima would have engaged in such conduct in the presence of his daughter. Second, Ms. Van Damas was quite adamant at hearing about certain things she believed she had observed. For example, she testified during the final hearing that she first observed Mr. Scrima from a ladder located behind a wall in a stock room near the contemporary clothing portion of the men's department, which permitted her to look over the wall from about 12 feet in height. When her deposition was taken in the criminal matter on April 6, 1988, she testified that she was on the floor, and first observed Mr. Scrima enter the department store at the men's fragrance counter, and that another store detective was in the security observation coup, not her. She also acknowledged during cross examination that she did not have a clear recollection of the facts as of the date of the hearing. The evidence against Mr. Scrima is not clearly convincing.

7. Mr. Scrima agreed on July 6, 1988, to plea nolo contendere to the misdemeanor charge, and to pay $125 fine because the risk of going to trial and the attorney's fees involved in going to trial were large, the proposed fine was small, and the overall circumstances dictated accepting the prosecutor's offer as the most expedient method of disposing of the accusation.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. A law enforcement officer must meet certain minimum qualifications to obtain a certificate from the Criminal Justice Standards and Training Commission, including that he have good moral character as determined by a background investigation conducted under procedures established by the Commission. Section 943.13(7), Florida Statutes. Moreover, a law enforcement officer may have his certificate revoked for failing to comply with the provisions of Section 943.13(1) through 943.13(10), which include the requirement that he maintain good moral character after obtaining a certificate. Section 943.1395(5), Florida Statutes. If Mr. Scrima were guilty of petty theft, he would have committed an act demonstrating that he was not of good moral character, as that term has been defined by the Commission in Rule 11B- 27.0011(4)(b), Florida Administrative Code. The evidence in this case is not, however, clear or convincing that Mr. Scrima purposefully removed the denim jacket from a department store on January 23, 1988, without paying for it. See, Slomowitz v. Walker, 429 So.2d 797, 799-800 (Fla. 4th DCA 1983). The store detective's testimony is weakened by the conflicts between the testimony given shortly after the event and her testimony at the final hearing. Mr. Scrima's testimony about the events that day is credible. The circumstances of his decision to plead nolo contendere to the misdemeanor charge brought against him in county court because of the very small fine, and the opportunity to avoid the inherent uncertainties of litigation are persuasive. The nolo contendere plea which he had entered has been adequately explained. The Commission has not proven, by clear and convincing evidence, that Mr. Scrima is guilty of misconduct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Anthony Scrima be dismissed.

RECOMMENDED this 20th day of February, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 20th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 90-5487

1 and 2. Adopted in Finding 2.

1. Adopted in Finding 1.

2. Adopted in Findings 3 and 6.

3. Adopted in Finding 3, although the young girl was his daughter.

6 and 7. Rejected. See, Finding 6.

8. Adopted in Finding 4.

9 and 10. Implicit in Findings 3 and 4.

1. Generally adopted in Finding 5.

2. Adopted in Finding 4.

3. Rejected as unnecessary.

4. Implicit in Finding 4. Whether Mr. Scrima carried or wore the jacket out of the store is not relevant.

5. Adopted in Finding 4.

6. Rejected; not the more credible evidence.

7. Although Ms. Van Damas may not have seen the nephew, rejected based on finding 3.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. Adopted in Finding 5.

11. Rejected as unnecessary.

12. Adopted in Finding 7.

COPIES FURNISHED:

Sharon D. Larson, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Terence L. LaBelle, Esquire

200 Southeast Sixth Street Suite 300

Fort Lauderdale, FL 33301

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

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

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 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: 90-005487

Orders for Case No: 90-005487