STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6042

)

)

EDWARD ABDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 13, 1992, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Dawn L. Pompey, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Edward Abdo, pro se

2929 Carriage Drive

South Daytona, Florida 32124 STATEMENT OF THE ISSUES

The issue is whether respondent's correction officer certification should be disciplined for the reasons stated in the administrative complaint, as amended.

PRELIMINARY STATEMENT

By an administrative complaint filed on August 7, 1991, petitioner, Criminal Justice Standards and Training Commission, charged that respondent, Edward Abdo, certified as a corrections officer, had violated Subsections 943.1395(5) and (6), Florida Statutes (1991), and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, thus warranting disciplinary action against his certification. More specifically, the complaint alleged that on May 4, 1990, respondent knowingly and unlawfully obtained the property (groceries) of a Publix Supermarket with the intent to deprive the owner of its property. On November 12, 1991, petitioner amended its complaint to add the charge that on June 22, 1991, respondent unlawfully drove an automobile while under the influence of alcohol and had a blood alcohol level in excess of .10%. The complaint alleged further that, by engaging in the foregoing conduct, respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (1991).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991). The matter was referred by petitioner to the Division of Administrative Hearings on September 23, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated October 7, 1991, a final hearing was scheduled on October 28, 1991, in Daytona Beach, Florida. Upon request of petitioner, the matter was rescheduled to January 13, 1992, and at the request of respondent, was rescheduled to February 13, 1992, at the same location.

At final hearing petitioner presented the testimony of William Clyde Rhodes, a Publix store manager, James L. Howard, a City of Daytona Beach police officer, and Bryon Switt Stiltner, a City of Port Orange police officer. Also, it offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent testified on his own behalf and offered respondent's exhibit 1 which was received in evidence.

The transcript of hearing was filed on March 11, 1992. Proposed findings of fact and conclusions of law were filed by petitioner on March 19, 1992. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Edward Abdo, held correction certificate number 502-00180 issued by petitioner, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since July 3, 1981. When the events herein occurred, Abdo was employed by the Department of Corrections as a correctional officer I at a correctional facility in Daytona Beach, Florida. He will turn 62 years of age in May and will have completed eleven years of employment at that facility in June 1992. At that time, he plans to retire.

   
   

2. The charges against respondent are based upon two incidents which occurred in May 1990 and June 1991, respectively. The first incident involved a charge of retail theft lodged against Abdo in May 1990 while the second incident involved a charge of driving while under the influence of alcohol (DUI). The facts giving rise to those charges are set forth in the subsequent findings.

   
   

3. On May 4, 1990, respondent was shopping at Publix store number 304 located at 1500 Bevill Road, Daytona Beach, Florida. William C. Rhodes was then the store manager. Rhodes observed Abdo push a cart filled with various grocery items through a "fire code lane" between cash registers 5 and 6 and continue out of the store without first stopping at a cash register. None of the items were bagged. Rhodes followed Abdo into the parking lot where he observed Abdo stop at an automobile and begin placing some items into the car. At that point, Rhodes confronted Abdo and asked him if he had anything which he had not paid for. Abdo responded that he had purchased the groceries and reached into his pocket looking for a receipt but could not find one. Abdo then told Rhodes that maybe he had not paid for the groceries and offered to pay for them in the parking lot. Rhodes asked Abdo to put the items already placed in the car back into the shopping cart and to return to the store.

4. When Abdo could produce no cash register receipt and declined to have the cash register girls verify his claim that the groceries were paid for, the police were called and Abdo was charged with retail theft. The value of the groceries was approximately $20. They consisted of a ten pound bag of potatoes, eight heads of lettuce, four green peppers, and five packages of tomatoes. On July 26, 1990, Abdo pled no contest to the charge of retail theft, adjudication was withheld, and he was placed on six months probation and fined $150. The arrest and plea were later expunged and sealed pursuant to an order of the Volusia County Court entered on April 18, 1991.

   
   

5. Although respondent agreed that he had been arrested for retail theft and pled no contest to that charge, he maintained he did so only because he could never find his receipt. He contended at hearing that except for two packs of cigarettes he had inadvertently placed in his pocket, which Rhodes and the arresting officer never saw, he had previously paid for all grocery items and they were bagged. However, this version of the facts is not deemed to be credible.

   
   

6. Around 1:20 a.m. on June 22, 1991, respondent was stopped in the 4800 block of Spruce Creek Road by a City of Port Orange police officer, B. S. Stiltner. Abdo, who was driving a 1987 automobile with two passengers, had been followed by Stiltner for approximately three minutes. During that period of time, Abdo failed to maintain a single lane, crossed the center line several times, went onto the right-of-way while negotiating a turn, and continued weaving until stopped. Upon approaching Abdo, Stiltner smelled an odor of alcohol on his breath and noted that Abdo had slurred speech, "watery" eyes, red coloration in the face, and fumbled for his driver's license.

   
   

7. Abdo was given four roadside field sobriety tests by Stiltner and flunked each test. After being taken to the Port Orange police station, Abdo blew .151 and .140 on the Intoxilizer 5000 Series machine, indicating that he was driving while under the influence of alcohol in violation of state law. He was thereafter arrested and charged with driving under the influence of alcohol.

   
   

8. Under a then-effective policy of the Port Orange city attorney, first time DUI offenders were allowed to plead guilty to reckless driving. Accordingly, Abdo, who had no previous DUI arrests on his record, pled guilty to reckless driving, had his license suspended for ninety days, and served three months probation.

   
   

9. At hearing, Abdo acknowledged that he had drunk a number of beers without eating over a six and one-half hour period at a local social club. However, he blamed his arrest on a strict arrest policy in the City of Port Orange and cited a poorly lit road and a "bad street" that was "slightly pitched" as causing his weaving. Also, he attributed his failure to pass several coordination tests to arthritis in his right shoulder and both knees. To the extent these matters are true, they are still insufficient to overcome the clear and convincing evidence that respondent was driving while under the influence of alcohol on the morning of June 22, 1991.

   
   

10. In terms of mitigating or aggravating circumstances, there is no evidence of any prior disciplinary actions taken against respondent during the eleven years he has been certified. Also, neither offense occurred while respondent was on duty, and respondent did not use his official authority to facilitate his misconduct. The potential pecuniary gain to Abdo by his misconduct amounted to approximately $20, and as it turned out, the store retrieved all stolen merchandise.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

12. Because respondent's correctional certification is at risk, petitioner is obliged to prove the allegations in the administrative complaint by clear and convincing evidence. Newberry v. Florida Department of Law Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991).

    
    

13. The more credible and persuasive evidence supports a conclusion that respondent committed retail theft (in the amount of approximately $20) on May 4, 1990, and was driving an automobile while under the influence of alcohol on June 22, 1991. 1/ Therefore, the underlying factual allegations in the administrative complaint have been sustained. The next issue is whether such conduct equates to a failure to maintain qualifications (good moral character) as alleged in the complaint, as amended.

    
    

14. Rule 11B-27.0011(4), Florida Administrative Code, provides in relevant part as follows:

    
    

    (4) 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 of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

       [statutory citations omitted] . . .

    2. 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 . . .

    
    

15. As noted above, petitioner has established that respondent was driving an automobile while under the influence of alcohol and committed retail theft as proscribed by Sections 316.193 and 812.015, Florida Statutes, respectively. Since neither statute is found in rule 11B-27.0011(4)(b), the charge that respondent failed to maintain qualifications must rest upon a showing that such acts fall within the purview of rule 11B-27.0011(4)(c). 2/ As to the commission of retail theft, this clearly "causes substantial doubts concerning the officer's honesty (and) the laws of the state" thus constituting a failure to maintain qualifications as required by Subsection 943.13(7), Florida Statutes. As to the misdemeanor charge of driving while under the influence of alcohol, petitioner has cited no persuasive authority for concluding that such conduct rises to the level of causing "substantial doubts" concerning Abdo's honesty, fairness, or respect for the rights of others or the laws of the state,

    and since penal statutes (and rules) must be strictly construed in favor of the accused, this portion of the complaint must fail.

    
    

16. Rule 11B-27.005, Florida Administrative Code, sets forth the range of penalties to be imposed upon a licensee when the licensee fails to maintain his qualifications. For the commission of an act which causes substantial doubts concerning an officer's honesty, fairness, or respect for the rights of others or for the laws of the state the rule calls for a penalty ranging from a reprimand to revocation. Section (4) of the same rule cites mitigating or aggravating circumstances to be taken into account in assessing a penalty. After considering the circumstances presented in finding of fact 10, an appropriate penalty is deemed to be probationary status for two years.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of failing to maintain his

qualifications and this his correctional officer certification be placed on

probation for two years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1992.

DONALD R. ALEXANDER

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 March 1992.

ENDNOTE

1/ The fact that respondent's arrest and subsequent plea of guilty to the charge of retail theft have been sealed is no bar to petitioner seeking to discipline respondent's certification in an administrative forum based upon that prior criminal conduct. See, e. g., Walton v. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984).

2/ In its proposed order, petitioner treats the crimes of retail theft and petit theft as the same, and since petit theft [s.812.014(2)(d)] is cited in rule 11B-27.0011(4)(b), argues that a violation of that rule has occurred.

However, the two offenses are separate and distinct crimes under chapter 812.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1-2. Partially adopted in finding of fact 1. 3-16. Partially adopted in finding of fact 3. 17-25. Partially adopted in finding of fact 6. 26-37. Partially adopted in finding of fact 7.

1. Partially adopted in finding of fact 9.

2. Rejected as being unnecessary.

3. Partially adopted in finding of fact 7. 41-42. Partially adopted in finding of fact 8.

Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, cumulative, or a conclusion of law.

COPIES FURNISHED:

Dawn L. Pompey, Esquire Post Office Box 1489 Tallahassee, Florida 32302

Mr. Edward Abdo 2929 Carriage Drive

South Daytona, Florida 32124

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney E. Gaddy, Esquire 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

vs. DOAH CASE NUMBER: 91-6042

CJSTC CASE NUMBER: C-1987

EDWARD ABDO,

Certificate Number: 502-00180,

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 July 30, 1992, in Tampa, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was neither present nor represented by counsel at the Commission proceedings.

Upon a complete review of the transcript of the record of hearing held on February 13, 1992, in Daytona Beach, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated March 24, 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 thereto, (which are attached hereto and incorporated by reference) the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

There is competent and substantial evidence to support the Commission's 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: 502-00180, is hereby REVOKED.

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 2nd day of November, 1992.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

RODNEY DOSS CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to EDWARD ABDO, 2929 Carriage Drive, South Daytona, Florida 32124, by U.S. Mail on or before 5:00 P.M., this 6th day of November, 1992.

COPIES FURNISHED:

All Counsel of Record

Docket for Case No: 91-006042

Orders for Case No: 91-006042