STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6162

)

VINCENT E. COLLAZO, )

)

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 19-20, 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: Richard Docobo, Esquire

1370 N.W. 16th Street Miami, Florida 33125

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Amended 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 and was, at the times pertinent hereto, employed by the City of Miami Police Department as a police officer. By an Amended Administrative Complaint, Petitioner alleged the following facts:

2. On or about July 1985, the Respondent, Vincent E. Collazo, 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 Amended Administrative Complaint alleged that 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. 90-2229 and DOAH Case No. 90-3901 involving Ignacio F. Menocal 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 Collazo, Petitioner presented the testimony of James E. Judd, Rudolfo Arias, Regino Capiro, and Harvey Wasserman. 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. Capiro are both former City of Miami police officers who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Wasserman is a sergeant with the City of Miami Police Department assigned to the internal affairs unit. Petitioner presented one exhibit which was accepted into evidence. Respondent presented no witnesses or exhibits.

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 Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. No post-hearing submittal was filed by Respondent.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on July 24, 1984, and issued certificate number 19-84-002-

   03. 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 during 1985.

   
   

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 Collazo did not participate in any of these three drug rip-offs and he has not been prosecuted criminally.

4. Three of the witnesses in this matter, Rudolfo Arias, Carlos Pedrera, and Regino Capiro were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Arias Mr. Capiro, and Mr. Pedrera had each entered into a plea agreement with the federal prosecutors. Each of these witnesses had, in exchange for substantial benefits, agreed to divulge information as to wrongdoing by other police officers and to testify against those implicated officers if necessary. The benefits received by Mr. Arias included his being placed in the Federal Witness Protection Program. Despite his plea agreement, Mr. Pedrera refused to testify in this proceeding and was withdrawn as a witness before he gave any substantive testimony. Although neither Mr. Arias nor Mr. Capiro received any direct benefit for his testimony in this proceeding, the testimony presented by both of these witnesses was a product of his respective plea agreement.

   
   

5. Mr. Arias was an officer with the City of Miami Police Department in 1985 and knew Respondent as a fellow officer. Armando Garcia, who was also an officer with the City of Miami Police Department in 1985, was considered by Federal Bureau of Investigation (FBI) Agent Judd to be the most culpable of those police officers involved in the Miami River Cops Case. Mr. Arias was considered to be the second-most culpable.

   
   

6. Mr. Arias had been contacted by Mr. Garcia and invited to come to his home on the evening of July 29, 1985, the day after the drug rip-off at the Jones Boat Yard. When Mr. Arias arrived at Mr. Garcia's residence at approximately 6:00 p.m., a drug dealer named Jose Benitez was present with members of the Garcia family. Armando Garcia arrived at approximately 6:30 p.m. and was accompanied by Oswaldo Cuello. Mr. Cuello was, at that time, a City of Miami police officer.

   
   

7. Mr. Garcia and Mr. Cuello informed Mr. Arias that they had participated in the drug rip-off at the Jones Boat Yard and recruited him to help dispose of the stolen cocaine. Mr. Arias was shown approximately 100 kilos of cocaine that had been packaged in large, clear plastic bags and stored in the Garcia house inside a bedroom closet. Mr. Arias agreed to help sell the stolen cocaine.

   
   

8. Respondent, Mr. Cuello, and Mr. Garcia were, in addition to being fellow officers, friends who socialized together.

   
   

9. Mr. Arias, Mr. Garcia, Mr. Cuello, and Mr. Benitez entered into a conversation during which either Mr. Garcia, Mr. Cuello, or Mr. Benitez made certain statements about the Respondent. 1/

   
   

10. Mr. Arias left the Garcia house between 8:30 p.m. and 10:00 p.m. on July 29, 1985, with ten kilos of cocaine in a plastic garbage bag. During that time, different people entered and exited the Garcia house. Those entering brought money into the house in different ways, such as in a paper bag or a gym bag, while those leaving the house left carrying various objects such as paper bags and briefcases. Mr. Arias left the yard area through the front gate, walked down the street to his car, and placed the cocaine he had been given to sell in his car. As he was doing this, Respondent drove up toward the front gate, parked approximately two car lengths in front of Mr. Arias's car, and blew his horn. Mr. Arias then saw Respondent engage in a conversation with Mr. Cuello and Mr. Benitez, but he did not hear the conversation. Mr. Arias was joined in conversation with Mr. Garcia and was not paying close attention to Respondent, Mr. Cuello, and Mr. Benitez. Mr. Arias witnessed either Mr. Cuello or Mr. Benitez place a bag in the trunk of Respondent's vehicle which he

    described as a light brown bag which could have been a grocery bag or a shopping bag. Mr. Arias did not see Respondent holding this bag and he did not know the contents of that bag. Mr. Arias did not see Respondent either enter or exit Mr. Garcia's house and he did not know whose bag it was or from where it came. 2/

    
    

11. Mr. Arias was later told by Mr. Garcia that the Respondent had taken four kilos on the night of July 29, 1985, but that he had only sold one and had returned three of the kilos. 3/ Mr. Arias was also told by Respondent's partner, Officer Squeeky Morales, that Respondent had made certain statements to him regarding his sale of stolen cocaine. 4/

    
    

12. During 1985, Regino Capiro was a City of Miami police officer who became involved in the Miami River Cops case. During 1985, after the Jones Boat Yard rip-off, Mr. Capiro met with Armando Garcia (both Mr. Capiro and Mr. Garcia were still City of Miami police officers at this point in time) in response to a burglary call. The Respondent also appeared at the scene, even though he was off duty. The Respondent invited Mr. Garcia to come by Respondent's house, which was a half of a block from the burglary scene, after they were through with the burglary call. After completing their work at the burglary call, Mr. Garcia and Mr. Capiro drove to Respondent's house. While they were at Respondent's house, Mr. Capiro overheard Mr. Garcia and the Respondent discussing the fact that Respondent had sold for Mr. Garcia some of the cocaine that had been stolen in one of the Miami River drug rip-offs. Mr. Garcia told Mr. Capiro that the Respondent had sold cocaine for him from one of the drug

    rip-offs 5/ and that Respondent was available to sell cocaine for Mr. Capiro if Mr. Capiro wanted him to do so. These statements were made by Mr. Garcia to Mr. Capiro in the presence of Respondent and without denial from Respondent.

    Upon hearing these statements, Respondent did not verbally respond, but he did nod his head in agreement. 6/

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. 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) con- viction, 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).

15. Section 90.801, Florida Statutes, contain the following definitions pertinent to this proceeding:

    
    

    1. The following definitions apply under this chapter:

       1. A "statement" is:

          1. An oral or written assertion; or

          2. Nonverbal conduct of a person if it is intended by him as an assertion.

       2. A "declarant" is a person who makes a statement.

       3. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

       
       

16. Section 90.802, Florida Statutes, provides:

    
    

    Except as provided by statute, hearsay evi- dence is inadmissible.

    
    

17. Section 90.803, Florida Statutes, provides, in pertinent part, as follows:

    
    

    The provisions of s. 90.802 to the contrary notwithstanding, the following are not inad- missible as evidence, even though the declarant is available as a witness:

    * * *

    
    

    (18) ADMISSIONS: - A statement that is offered against a party and is:

    1. His own statement in either an individual or a represented capacity;

    2. A statement of which he has manifested his adoption or belief in its truth.

    
    

18. Section 120.58, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. In agency proceedings for a rule or order:

       1. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. 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. ...

          
          

19. Section 943.1395(5) and (6), Florida Statutes, when read in conjunction with Section 943.13(7), Florida Statutes, requires that a law enforcement officer maintain good moral character to remain eligible for certification. It is concluded that the illegal sale or possession of cocaine by a law enforcement officer establishes that the law enforcement officer lacks good moral character.

    
    

20. In weighing the evidence that was presented in this matter, the undersigned has considered that the credibility of Mr. Arias and Mr. Capiro is subject to question and that Respondent has denied these accusations by his pleadings.

    
    

21. The testimony of Mr. Arias as it pertains to this Respondent is found to be credible and is accepted. As noted in the various footnotes, the hearsay statements to which Mr. Arias testified are found to be too unreliable to accept for any purpose. The testimony of Mr. Arias alone does not establish that the bag he saw being placed in Respondent's automobile contained cocaine.

    
    

22. The testimony of Mr. Capiro as it pertains to this Respondent is found to be credible and is accepted. By the nod of his head in agreement when Mr. Garcia told Mr. Capiro that Respondent had sold cocaine for him from one of the drug rip-offs and that he would sell cocaine for Mr. Capiro if Mr. Capiro wanted him to do so, Respondent admitted that he sold cocaine for Mr. Garcia. This admission, coupled with the testimony from Mr. Arias as to his observations and the circumstances surrounding those observations, establish a strong inference that the contents of the bag Mr. Arias observed being placed in Respondent's automobile on July 29, 1985, contained cocaine from the Jones Boat Yard rip-off and that Respondent took possession of that cocaine so he could sell it.

    
    

23. Even if the inference discussed above is disregarded, the Respondent's admission to Mr. Capiro that he had sold cocaine from one of the rip-offs for Mr. Garcia and the evidence as to when these rip-offs occurred establish by clear and convincing evidence that Respondent sold and possessed cocaine as alleged in the Administrative Complaint. While the admission does not establish from which of the three drug rip-offs this sale occurred, or the precise date of the sale, it is concluded that the wording of the pleadings is sufficiently broad to charge Respondent with the sale from any one of the three rip-offs.

The admission does not establish that the amount sold was more than 28 grams, but that is not an essential element of the charge since the sale of any amount of the contraband provides a sufficient basis upon which to revoke Respondent's certification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondent, Vincent

E. Collazo, possessed and sold an unknown quantity of cocaine on or about July 1985, and which revokes his certification as a law enforcement officer in the State of Florida.

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/ These statements are to the effect that Respondent wanted to come to the Garcia house to get some cocaine so that Respondent could sell it. It was indicated that Respondent had requested 30 kilos of cocaine, but that he would be given only four kilos of cocaine to sell. This testimony regarding these out of court statements is compound hearsay that would not be admissible over objection in a civil proceeding. Mr. Arias was unable to state what precisely was said nor was he able to identify the speaker who made incriminating comments about Respondent. This testimony is considered unreliable and no weight is given to it.

2/ Mr. Arias believed the bag contained cocaine and that either Cuello or Benitez brought it out to Respondent from inside of the Garcia house. However, there was no competent, substantial evidence to establish this proposition.

3/ This out of court statement by Mr. Garcia is clearly hearsay that would not be admissible over objection in a civil action, and is considered to be too unreliable to accept for any purpose.

4/ This testimony regarding these out of court statements is clearly hearsay that would not be admissible over objection in a civil action. Further, this testimony as to a statement that Respondent allegedly made to Mr. Morales, a convicted perjurer, is compound hearsay, and no weight is given to it.

5/ Mr. Capiro did not know when this alleged sale occurred or which drug rip- off was involved.

6/ This testimony regarding these out of court statements are clearly hearsay, but it is concluded that these statements would be admissible in a civil action over objection as an adopted admission.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6162

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, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, and 35 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 7, 8, 33, and 37 are rejected as being subordinate to the findings made.

   
   

3. The proposed findings of fact in paragraphs 9 and 36 are rejected as being unnecessary to the conclusions reached.

   
   

4. The proposed findings of fact in paragraphs 38 and 39 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

COPIES FURNISHED:

Sharon D. Larson, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Richard Docobo, Esquire

2780 Douglas Road, Suite 300 Coral Gables, Florida 33133

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

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: 90-006162

Orders for Case No: 90-006162