STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4480

)

LARRY A. MOORE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in West Palm Beach,

Florida on February 13, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Gina Cassidy, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For the Respondent: Larry A. Moore, pro se

5100 45th Street

West Palm Beach, Florida STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether

Respondent's certificate as a corrections officer and law enforcement officer should be disciplined because of the matters set out in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated July 13, 1990, Jeffrey

1. Long, Director of the Department's Division of Criminal Justice Standards and Training sought to discipline the Respondent's licenses as a corrections officer and a law enforcement officer based on allegations that the Respondent unlawfully obtained lodging from a public lodging establishment with the intent to defraud the owner. Respondent requested a formal hearing on the allegations and by letter dated July 18, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

   
   

   By Notice of Hearing dated August 13, 1991, the undersigned set the matter for hearing in West Palm Beach on October 9, 1991, but before the hearing, on September 25, 1991, the Petitioner sought to amend the Complaint to add an

   allegation to the effect that the Respondent had unlawfully obtained the department issued equipment of an officer on the Riviera Beach Police Department with the intent to deprive the owner of it. By Order dated September 27, 1991 the undersigned granted the Motion to Amend, and on October 9, 1991, the hearing was held as scheduled.

   
   

   Though a Notice of Hearing was sent to the Respondent at his last known address, he was not present at the hearing or represented by counsel. Petitioner presented its evidence and

   after the hearing, Petitioner's counsel sent Proposed Findings of Fact to the undersigned with an information copy to the Respondent at an address different from the one in possession of the undersigned.

   
   

   By letter dated November 6, 1991, Respondent contacted

   the undersigned indicating he had had no knowledge of the prior hearing and requesting a rehearing on the matter. After due consideration of all the matters presented by the parties on that issue, by Order dated December 16, 1991, the undersigned ordered a rehearing for February 13, 1992 in West Palm Beach at which time the matter was heard as scheduled. Respondent was present and represented himself.

   
   

   At the hearing, Petitioner presented the testimony of Rick L. Bradshaw, Assistant Chief of the West Palm Beach Police Department; Officer Chris Hamori, the patrolmen from whom the

   equipment referenced in the Amended Complaint was taken; Juanita Bell, evidence custodian and operator of the lost and found for the City of Riviera Beach; Steven Lobeck, a sergeant with the Riviera Beach Police Department; and Lts. Steven Wiesen and June Sweetland, of the Riviera Beach Police Department. Petitioner also introduced Petitioner's Exhibits 1 through 4.

   
   

   Respondent testified in his own behalf and presented the testimony of Lee Kretchmer, formerly an assistant public defender for Palm Beach County; Bernice Moore, Respondent's wife; and officer Joe Lockhart and Assistant Chief Clarence R. Bunche, both of the Riviera Beach Police Department. Respondent also introduced Respondent's Exhibits A, C, and D. Respondent's Exhibit B was offered but not admitted.

   
   

   Subsequent to the hearing, only Petitioner's counsel submitted Proposed Findings of Fact which have been accepted and are incorporated into this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the allegations contained

      in the Administrative Complaint, the Respondent, Larry A. Moore, was certified as a law enforcement officer and corrections officer in Florida. The Petitioner, Criminal Justice Standards and Training Commission, (Commission), is the state agency responsible for the certification of law enforcement and corrections officer in Florida.

      
      

   2. During the months of November and December, 1987, Respondent was employed as a police officer by the City of Riviera

      Beach, Florida. In December, 1987, Officer Chris Hamori was a traffic officer with the same department. He had been issued certain equipment for his personal use on duty in which he had placed his personal identification mark. The equipment, primarily a windbreaker, a raincoat, a flashlight and other items necessary for traffic accident investigation, was kept in the trunk of the patrol car signed out to him. He was the only operator of that vehicle, though numerous department cars, all of the same make and model, were identically keyed. Therefor, any key for any of the vehicles would open and operate any of the other identical vehicles.

      
      

   3. On December 8, 1987, Officer Hamori was assigned to

      teach a class at a junior college in the next county to the south. When he got there, it was raining and he went to the trunk to get his raincoat but found it missing. He had to get to class and so did not search the trunk at that time. During the mid-class break, however, he again went to the car to make a more thorough search and discovered that his trunk had been rifled and not only his raincoat but his windbreaker as well were missing. There was no evidence of breaking into the trunk.

      
      

   4. Officer Hamori reported the theft the next morning

      and went to the Department's property custodian to let them know as well. At that time he was issued another raincoat and windbreaker which, according to the property custodian, Ms. Bell, had just been turned in by the Respondent who was leaving employment with the Department. Officer Hamori noted, from the lack of patches on the windbreaker, that it was much like his and upon further checking, noted that his name appeared on the underside of the right sleeve where he had placed it when the garment was initially issued to him. He also noted that the raincoat had his name written on the inside of the placket where he had placed it when the coat was initially issued to him. From this, he determined that these two garments were the ones taken from his car, without his knowledge or permission, the previous day.

      
      

   5. Ms. Bell was quite certain that the items in issue here had been turned in to her that same day by the Respondent.

      When he brought them in, she cleared his property account and placed the items off to the side. She had not had time to place them back into stock. Notwithstanding Respondent's urging that other individuals than Ms. Bell had access to the property storage area, she indicated that no one else turned in any items of that nature that day. Respondent was the only one to turn in equipment that day and, as was stated, she had not put it back into stock when Hamori came in to ask for a reissue. It is found, therefore, that the property turned in by Respondent was the property issued to Officer Hamori and was the same property which had been taken from him without permission.

      
      

   6. Respondent urges that numerous people could have

      gotten into Respondent's patrol car and taken his property because of the large number of keys out that would fit it. This is true, but the evidence is uncontrovertible that the property turned in by the Respondent was the property taken from Officer Hamori's car

      the day before and there is some evidence in fact, that Respondent indicated to Sergeant Lobeck, his immediate supervisor, that he needed some equipment, including a raincoat, to turn in when he left the Department's employ. It is found, therefore, that Respondent is the individual who took the property in question from Officer Hamori's car. Had this not been discovered, the Department would have been out the cost of the equipment since, because it had been stolen from Hamori, Hamori would have been released from liability for it. Only the property initially issued to Respondent was not returned, and though he ultimately paid for it, at the time in issue, he took it from Hamori without authority.

      
      

   7. Toward the end of 1988, Assistant Chief of the West Palm Beach Department, attempted to locate the Respondent, then a patrolman with that agency, due to a schedule change. At that time, Respondent was not where he was supposed to be and had not advised the Department of his whereabouts. He was finally located at the Mt. Vernon Motor Lodge in West Palm Beach. Discussions with the manager of that facility indicated that the Respondent had moved out without paying the full amount of the room rent owed and had left his room in a messy and unclean condition.

      
      

   8. Abel Menendez was the manager of the Mount Vernon Motor Lodge during the period September through November, 1988. During that time, Respondent, who represented himself incorrectly as an employee of the Sheriff's office, rented a room at the motel, paying a rate therefor of $135.00 per week. Respondent was to pay his rent in advance and at first did so, but after a while, he began to get behind in his payments and Mr. Menendez had trouble finding him. When it became clear that Respondent could not bring his arrears current, Mr. Menendez agreed that he could make partial payments to catch up, but he never did so. Finally, in November,

      along with Mr. Fishbein, the motel owner, Mr. Menendez told Respondent he would have to pay up or move out.

      
      

   9. When Respondent first began to fall behind in his rent, Mr. Menendez contacted representatives of the West Palm Beach Police Department and gave them a summary of the charges owed by Respondent. The last payment made by Respondent was $135.00 on

      November 11, 1988, which left a balance due of $500.00 which was never paid.

      
      

   10. Respondent is alleged to have left the motel during the night of November 11, 1988. According to Mr. Menendez,

       Respondent "destroyed" the room before his departure. Some of his clothes and things were left in the room. The room was examined the following day by Sgt. Chappell, also of the Department, who had gone there to look for the Respondent at the direction of Captain Griffin. This officer observed holes punched in the walls, and trash and dirty diapers in the room. He never located Respondent.

       
       

   11. Chief Bradshaw subsequently spoke with the Respondent about this situation and based on the facts as he determined them, terminated Respondent's probationary status with the Department and discharged him. In their discussion, Respondent indicated he had an arrangement with the motel manager, but this was only partially true. The arrangement was to pay in installments but Respondent abandoned the room without doing so. He was locked out by the management the following day. Even though Respondent agreed with Chief Bradshaw

       to make payments of the amounts owed, he may not have done so. As a result, criminal charges were filed against him.

       
       

   12. The criminal charges were subsequently disposed of

       by a Deferred Prosecution Agreement entered into by the Respondent and the State in June, 1989. By the terms of that agreement, Respondent agreed to pay off the obligation at a rate no less than

       $100.00 per month. However, Mr. Moore never paid any money to the motel because, due to a total mixup in the motel's paperwork, they were never able to establish to whom the money was to be paid. As a result, the matter was ultimately disposed of by the State

       entering a nolle prosequi in the case. Respondent's public defender, Ms. Kretchmer, remembers Respondent's repeatedly indicating he wanted to pay off the obligation, however.

       
       

   13. Respondent's wife, with whom he was living in the

       motel prior to their marriage, recalls having offered Mr. Menendez

       $300.00 the day before the Moores moved out. Mr. Menendez would not take it, however, indicating he wanted to receive it from Respondent. When Respondent came by, she gave him the money and they went to Menendez to pay him but he would accept only $150.00 and told Moore to keep the rest and not worry about it because,

       due to the fact he was a policeman, they "needed him around there."

       Shortly thereafter, however, Mrs. Moore heard Mr. Menendez complaining to the police about the amount owed.

       
       

   14. She claims Moore tried to make payments several times and whenever he would do so, Menendez would get upset. It was her understanding that Menendez was getting pressure from his boss to collect what was due and get the records straight. He mentioned to her that the motel cash account was short and he was being accused of taking the money. There is some evidence that Moore was not the only one having trouble with rent payments at the motel at that time. When he found that out, he decided to move but Mr. Menendez begged him not to go because his presence as a policeman helped in curbing drugs, gambling and prostitution there.

       
       

   15. Mrs. Moore absolutely denies that she and Respondent ever hid from Mr. Menendez nor did they sneak out during the night. They checked out in broad daylight at 11:45 in the morning with Mr.

       Menendez standing by. At that time, Menendez threatened to call the police but, according to Respondent, he, Moore did so instead, but could get no one in authority to listen or help him. Even after they left, Moore called and spoke with Menendez several times but was still subsequently arrested on the defraud charge.

       
       

   16. According to Mrs. Moore, they at no time damaged the room. At the time they left, the motel was fixing the air conditioner which caused some damage, but that's the only damage

       in the room when they left. Before they left, she cleaned the room so that it was in the same condition when they left as it was when they moved in.

       
       

   17. Respondent claims that when he began work with the West Palm Beach Police Department he discussed his rent problems

       with police officials and told them he had an arrangement with the motel to pay off the arrears. He admits he then got behind and

       when he tried to pay, the figures kept changing because of the absence of rental records.

       
       

   18. When he left, his disagreement with the motel was

       over the amount owed. He called the police to get a witness to his request for a firm bill, but by that time, he had already been terminated and the police would not come out. He had already had his discussion with Chief Bradshaw who, he claims, had told him to take care of the bill whatever the amount. He felt this was unfair, however, because he was told to pay whatever was asked regardless of whether he owed it or not.

       
       

   19. Respondent was ordained and licensed as a minister by the Church of God, 629 5th Street, West Palm Beach, on January 3, 1992. His minister the Reverend Preston Williams has found him to be a nice person and a well mannered person dedicated to his work, who has served with him in the local ministry since 1985.

       
       

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.587(1), Florida Statutes.

       
       

   21. In the Administrative Complaint filed in this case, as amended, the Commission has alleged that by leaving the motel without paying all amounts due, and by unlawfully taking the issued property of Officer Hamori, the Respondent has, in violation of Section 943.1395(5) and (6), Florida Statutes, failed to maintain the standards required of a law enforcement and corrections officer established in Chapter 943.13(7), Florida Statutes, and Rule 11B- 27.0011(4) (c), F.A.C.

       
       

   22. Section 943.1395(5), Florida Statutes, 1987, provides:

       
       

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

       
       

   23. Section 943.13(7), Florida Statutes, 1987 required that any person employed as a correctional or law enforcement officer shall:

       
       

       Have a good moral character as determined by a background investigation ....

       
       

   24. Section 943.1395 was amended in 1989 to include subsection (6) which provides:

       
       

       Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s.

       943.13(7), the commission may enter an order imposing [suspension or probation] in lieu of revocation of certification.

   25. The Department of Law Enforcement, by Rule 11B-27.0011,

       F.A.C. provided for the termination of correctional and law enforcement personnel at subsection (4) (c) which provides:

       
       

       For the purpose 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:

       * * *

       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.

       
       

   26. This rule was in effect at all times alleged in the Administrative Complaint.

       
       

   27. To succeed in its prosecution of this matter, the Petitioner must establish, by clear and convincing evidence, that the Respondent committed the misconduct alleged and, therefore, failed to demonstrate the continued good moral character required for certification as a correctional and law enforcement officer. Ferris v. Turlington, 510 So.2d 212 (Fla. 1987).

       
       

   28. With regard to the offense of defrauding an innkeeper, as alleged in the original Administrative Complaint, the evidence or record shows clearly that at the time Respondent moved out of the Mt. Vernon Motor Lodge he was indebted to it in some amount. Criminal charges were preferred against him and he entered into a deferred prosecution agreement in an effort to settle them. However, the evidence is equally clear that the charged against Respondent were dropped without his having to pay any of the outstanding indebtedness because the alleged creditor was unable to establish the amount of Respondent's obligation to it. This is totally consistent with the Respondent's representations at the hearing. While he admitted to owing something to the motel, he was unwilling to pay the entire amount claimed because of the creditor's inability to substantiate the amount alleged to be owing. This is neither unreasonable nor indicative of a lack of good moral character.

       
       

   29. In addition, Respondent claimed he attempted to pay Mr. Menendez a portion of what was owed, but this offer was rejected and a demand made for payment of the total claimed - a claim which could not be fully substantiated. When Respondent indicated his intention to remove himself from the motel, he was encouraged to stay by the manager who claimed his presence was beneficial to the business.

       
       

   30. Mrs. Moore's testimony that the room was cleaned before departure was shown to be substantially incorrect. Her (and

       Respondent's) assertion that the departure was made during daylight hours and not stealthily at night, was not sufficiently rebutted however. It is, therefore, concluded that on the basis of this alleged set of circumstances, Petitioner has failed to meet its burden of proof to show that the Respondent intended to defraud an innkeeper in leaving as he did.

       
       

   31. With regard to the alleged theft of Officer Hamori's equipment, however, the situation is decidedly different. Here the evidence is clear that the property in question was issued to Hamori who thereafter placed his mark upon it. The property was subsequently taken from Hamori's custody without his permission and was thereafter turned in to the Police Department's property

       custodian by the Respondent who could give no reasonable explanation of how it came into his possession. His efforts to

       raise doubts that he was the individual who turned in the property were totally unsuccessful. Under these circumstances, therefore, Petitioner has successfully demonstrated, by clear and convincing evidence, that Respondent was the individual who unlawfully took the subject property from Hamori, and this is ample demonstration of a lack of good moral character to support his certification being disciplined. This is the case notwithstanding the less than enthusiastic recommendation from his former supervisor and the letter of good character from his pastor.

       
       

   32. Having concluded that there is sufficient grounds to discipline Respondent's certification, the question remains as to what action is appropriate. Is revocation appropriate or would a

lesser, temporary disqualification suffice? Under the circumstances, while Respondent's misconduct was not directed at a civilian member of the community, if successful, it would have resulted in a loss to either Officer Hamori or the Department. Clearly, an individual who demonstrates a lack of respect for the property rights of others has no legitimate place in law enforcement activities or in the custody of inmates in correctional institutions. Therefore, revocation of Respondent's certification

appears the only appropriate action under the circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore;

RECOMMENDED that a Final Order be entered in this case, dismissing the allegation of defrauding an innkeeper as alleged in the original Administrative Complaint, finding Respondent guilty of unlawfully taking the property issued to officer Hamori as alleged in the Amended Administrative Complaint, and revoking his certification as a correctional officer and as a law enforcement officer.

RECOMMENDED in Tallahassee, Florida this 24th day of April, 1992.

ARNOLD H. POLLOCK

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 24th day of April, 1992.

COPIES FURNISHED:

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

Larry A. Moore

5100 45th Street, Apt. 1-A West Palm Beach, Florida 33401

James T. Moore Commissioner

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

Rodney Gaddy General Counsel

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

Jeffrey Long, Director Criminal Justice Standards

Training Commission

P. O. 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-004480

Orders for Case No: 91-004480