STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5018

)

LATISHA A FRANK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida, on October 20, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven G. Brady, Esquire

Department of Law Enforcement

400 West Robinson Street, Suite N-209 Orlando, Florida 32801

For Respondent: Was not present and was not

represented by counsel. STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's certification as a law enforcement officer in Florida should be disciplined because of the matters set forth in the Administrative Complaint.

PRELIMINARY MATTERS

By Administrative Complaint filed December 13, 1991, the Department's Criminal Justice Standards and Training Commission, (Commission), alleges that on or about May 23, 1991, the Respondent shoplifted property from J. Byron's department store in Kissimmee, Florida, and that misconduct constitutes a violation of Section 943.1395, Florida Statutes, in that she failed to maintain the qualification established by statute for a law enforcement officer which include good moral character. On June 9, 1992, the Respondent disputed the allegations of fact and requested a formal hearing. The election of rights form was signed by Marc Lubet, Esquire, an attorney.

By letter dated August 18, 1992, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and by Notice of Hearing dated September 22, 1992, entered after Mr. Brady's response to the initial Order filed herein, Hearing Officer Mary W. Clark set the case for hearing in Orlando on October 20, 1992, at which time it was held as scheduled

by the undersigned to whom the case was transferred in the interim. Notwithstanding the fact that Mr. Lubet was signatory on the Respondent's election of rights, on September 24, 1992, he called the Division of Administrative Hearings and indicated he did not represent Ms. Frank as he was never retained by her for that purpose.

At the hearing, Petitioner presented the testimony of Jenny A. Atkins, a security agent at J. Byron's in Kissimmee, and Lt. Peter A. Simonson, Director of Internal Affairs with the Kissimmee Police Department.

No transcript was filed and neither party submitted Proposed Findings of Fact.

Ms. Frank did not appear at the hearing even though the Notice of Hearing was sent to her at the address she placed on her election of rights form and was not returned undelivered. On October 13, 1992, Ms. Frank called H.O. Clark and indicated she was not sure she still wanted a hearing. She has now changed careers and in any case would be tied up and unable to attend the hearing on the date scheduled. Ms. Clark advised Ms. Frank in response to contact counsel for the Department, Mr. Brady, and she failed to do this. She did not appear at the hearing even though the hearing was delayed 20 minutes subsequent to the scheduled hearing time to allow her opportunity to appear. It is, therefore, held that she is in default and forfeited her opportunity to present evidence in her own behalf at the hearing. She has made no contact with either H.O. Clark or the undersigned since the hearing.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Commission was the state agency in Florida charged with the responsibility of certifying law enforcement officers. Respondent was certified as a law enforcement officer under certificate No. 13-89-002-01, issued on October 12, 1989.

   
   

2. On May 23, 1991, Jenny Atkins was working as a security agent at J. Byron's department store in Kissimmee, Florida, along with Joann Prieto, another security agent. She observed the Respondent in the store's dress department on that afternoon. Respondent had come to her attention because she did not appear to be a regular J. Byron's customer and was carrying a large purse. While watching, she observed Respondent take a dress off the rack and thereafter go to the lingerie department, where she took a pair of panties, put them under the dress, and take both items into the fitting room.

   
   

3. Being somewhat suspicious, Ms. Atkins went into the next fitting room and, with the aid of a small mirror, saw Respondent remove a pair of spandex pants she was wearing and put on the panties she had taken from the store stock. She did not take off the price tag. Respondent then put on the store's dress and came out of the fitting room, got another dress, and took it back into the fitting room. After trying both dresses, Respondent took them off, put them back onto their hanger, put her spandex pants back on over the store's panties, and went out into the store where she wandered around for the next half hour.

   
   

4. While Respondent was still in the store, Ms. Atkins checked the two dresses she had had in the dressing room and discovered that the hanger from the store's panties was caught in the loop in back of one dress, and the plastic price ticket from the panties was in the pocket of the other dress.

5. While in the store, Respondent made a purchase and when she departed, went into a jewelry store and a third store where she tried on merchandise.

   When Respondent left the fitting room, Ms. Atkins checked it for the panties but they were not there. Ms. Atkins stopped Respondent when she left the store. At that time, Respondent neither admitted nor denied taking the panties. However, in the course of the conversation, she indicated that "they" could not do this because she was a police officer. Later on she indicated she was a community service officer.

   
   

6. Neither Ms. Atkins nor anyone else gave Respondent permission to take the panties. Atkins has made approximately 50 arrests for shoplifting and is convinced that Respondent's actions constituted shoplifting. When she asked Respondent for the merchandise, Respondent agreed if the police were not called.

   
   

7. The police were called, however, and the matter was referred to Lt. Simonson, the Director of internal Affairs for the Kissimmee Police Department because the Respondent was a police officer. On May 24, 1992, he took a statement from Respondent during which he asked her how the price tag had come off the panties. At that time she said she didn't know but may have done it herself. She had no explanation as to how the tag got into the pocket of the dress and stated that the hanger might have been caught in the dress by accident.

   
   

8. Respondent told Lt. Simonson the panties were a bit big in the back but made no explanation as to why she kept them on when she left the store. She said she tried them on because she had recently lost weight and as a result, her size varied. She claimed she wanted to be sure they fit before she bought them.

   
   

9. Taken together the evidence clearly indicates the Respondent shoplifted the panties, though for reasons not related to this hearing, she was not prosecuted for it.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner seeks to discipline the Respondent's certification as a law enforcement officer because she stole a pair of panties from a local department store, an action which, it claims, constitutes an absence of the good moral character required for certification of law enforcement officers by statute. To succeed, Petitioner must show Respondent's implication in the alleged misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, (Fla. 1987).

    
    

12. The qualifications for law enforcement officers are outlined within the provisions of Section 943.13, Florida Statute, where, at subparagraph (7), a law enforcement officer is required to "Have a good moral character "

    Section 943.1395(5), Florida Statutes, provides that:

    
    

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

    
    

13. Respondent was clearly shown to have shoplifted the item in question from the department store while she was certified as a law enforcement officer.

That misconduct constituted a showing on an absence of the good character required of law enforcement officers to maintain their certification.

Respondent was, therefore, in violation of Section 943.1395(5), and the Commission must revoke her certification.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered revoking Respondent's certification as a law enforcement officer in Florida as evidenced by certificate No. 13-89-002-01, issued on October 12, 1989.

RECOMMENDED this 30th day of November, 1992, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987.

COPIES FURNISHED:

Steven G. Brady, Esquire Department of Law Enforcement Hurston Building, North Tower

400 W. Robinson Street, N-209 Orlando, Florida 32801

Latisha A. Frank 1412 Montana Avenue

St. Cloud, Florida 34769

Jeffrey Long, Director Criminal Justice Standards

and 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

Michael Ramage, Acting General Counsel Florida Department of Law Enforcement 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 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: 92-005018

Orders for Case No: 92-005018