STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 95-3700

)

JOHN L. DUBOSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 19, 1995, by teleconference to Orlando, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Karen D. Simmons, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 FOR RESPONDENT: No appearance

STATEMENT OF THE ISSUES

Whether Respondent is qualified to hold a certificate as a correctional officer in the State of Florida, by failure to successfully complete the required training, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on July 24, 1994, charging that Respondent was certified in error as a Correctional Officer. Respondent demanded a formal hearing by filing an Election of Rights on August 9, 1994. This matter was referred to the Division for formal hearing on July 24, 1995, and this hearing followed.

Following discovery, the formal hearing was scheduled by the Notice of Hearing , dated September 7, 1995, to be held at the Zora Neal Hurston Building, Suite 109, Room #2, 400 W. Robinson Street, Orlando, Florida, beginning at 1:00

1. on October 19, 1995. On September 13, 1995 an Amended Notice of Hearing was sent to the parties advising them that the time for the commencement of the hearing had been changed, with the hearing to begin at 9:00 a.m. on the same date and at the same location. The hearing was converted to a teleconference

   formal hearing with the Hearing Officer conducting the hearing from Tallahassee. The Petitioner appeared, through counsel, at the Tallahassee location and was ready to proceed. The Respondent failed to appear at the Orlando location.

   After waiting a reasonable time for Respondent to appear, diligent search and inquiry was made, including sounding the hall. Respondent failed to appear and the hearing was conducted. At the hearing, Petitioner's Motion for Leave to Amend the Administrative Complaint was granted to Correct a Scrivener's Error to properly reflect Certificate Number 141634 was issued to Respondent. The Petitioner presented the testimony of two witnesses, and two exhibits were admitted in evidence. No evidence was presented on behalf of Respondent.

   
   

   The proceeding was recorded but was not transcribed. Petitioner filed its Proposed Findings of Fact and Conclusions of Law on October 27, 1995.

   Respondent has not filed any pleadings or proposals as of the date of this order.

   
   

   The proposed findings have been given careful consideration and have been incorporated where appropriate. Specific rulings on proposed findings of fact are addressed in the Appendix attached to this order.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent was certified by the Criminal Justice Standards and Training Commission on January 29, 1993, as a corrections officer, and was issued Certification Number 141634.

      
      

   2. On August 17, 1992 the Respondent signed up for and attended orientation for the Public Safety Recruit/Corrections course conducted by the Lake County Area Vo-Tech Center in Eustis, Florida.

      
      

   3. The contents of the Public Safety Recruit Manual was explained to the class and Respondent received a copy of the manual.

      
      

   4. The academic grading policy in the manual provides that the minimum passing grade that a student must achieve on each exam is a score of 75 percent. A student may fail only one exam and still remain in good standing at the academy.

      
      

   5. Respondent signed a Student Acknowledgment of School of Public Safety Requirements and Rules of Conduct. He acknowledged that he had read and understood them and agreed to comply with the standards.

      
      

   6. Respondent failed the Criminal Justice Standards and Training Commission defensive tactics practical examination with a score of 66.

      
      

   7. On October 27, 1992, Respondent was notified orally and in a written memorandum from the program coordinator that he had failed the examination. However, he was given until July 29, 1993 to remediate and requalify.

      
      

   8. Respondent did not take any steps to requalify in this area.

      
      

   9. On November 10, 1992, Respondent failed Block Test 1 with a score of

      59.

   10. On November 13, 1992, Respondent was notified orally and in writing of his second examination failure. He was then advised that in accordance with the Master Plan of Instruction and the grading policy of the school that he was terminated from the program.

       
       

   11. Respondent's final grade for the Public Safety Program was listed as an Incomplete. Respondent was advised that he would be required to retake the entire recruit program in order for him to receive certification.

       
       

   12. A CJSTC 67 Training Report Form was completed by the Lake County Area Vo-Tech Center for the Public Safety Recruit/Corrections course sequence number 15-92-502-02 and was forwarded to the Florida Department of Law Enforcement, Division of Standards and Training in Tallahassee.

       
       

   13. The Training Report form reflects that forty-six recruits attended the course. Thirty-nine were listed as having passed and seven were listed as failed or incomplete. Respondent was listed as having failed the program.

       
       

   14. The Training Report for Respondent's class was received by the Department of Law Enforcement, Division of Standards and Training on April 12,1993.

       
       

   15. Due to a programmer's error, the Florida Department of Law Enforcement, Division of Standards and Training's Automated Training Management System (ATMS) computer system automatically generates a certificate and certificate number when an individual who is employed is entered into the system regardless of the grade achieved. The procedure in place at the time required a Department employee to visually scan the certificates being generated and remove the ones for those persons who had failed or did not complete the program.

       
       

   16. Respondent was employed at the time his name was entered into the ATMS.

       
       

   17. The ATMS generated a certificate with Respondent's name on it, Certificate Number 141634. Respondent was certified as a corrections officer as of January 29, 1993 and the certificate was forwarded to him.

       
       

   18. Respondent was certified by the Criminal Justice Standards and Training Commission in error and the certification should be revoked.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

       
       

   20. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085-943.255, Florida Statutes, (1993), and is authorized to certify any person as an officer who complies with the requirements of the law and to revoke the certification of those who do not comply. Sections 943.12(3) and 943.1395(1), Florida Statutes.

   21. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Section 943.13(9), Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   22. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (9):

       
       

       Complete a commission-approved basic recruit training program for the

       applicable criminal justice discipline . . .

       
       

   23. In the case at bar, clear and convincing evidence established that Respondent attended the Public Safety Recruit/Corrections Program at Lake County Area Vo-Tech in late 1992 but failed two examinations and was terminated from the program; Petitioner was properly notified of the termination but Respondent was certified in error. Respondent has not met the statutory requirements for certification as a Correctional Officer in the State of Florida and his certification must be revoked.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent has failed to complete a commission-approved

basic recruit training program, as required by Subsection 943.13(9), Florida Statutes (1993), and that Respondent's certification must be REVOKED.

DONE AND ENTERED this 16th day of November, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 16th day of November, 1995.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1 - 17 Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Michael Ramage General Counsel

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

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Karen Simmons, Esquire Florida Department of

Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

John Dubose

242 West 6th Street Apopka, Florida 32702

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the Final Order in this case concerning their 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: 95-003700

Orders for Case No: 95-003700