STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5988

)

PETER ALZUGARAY, )

)

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 5, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Florida Department of Law Enforcement Office of General Counsel

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent, a certified law enforcement officer, committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

By its Amended Administrative Complaint dated June 27, 1995, Petitioner charged that Respondent, a certified law enforcement officer, committed certain acts that constitute tampering with evidence, thereby violating the provisions of Section 943.1395 (6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, by failing to maintain the qualifications established by Section 943.13(7), Florida Statutes. Petitioner charged that Respondent failed to maintain good moral character.

Respondent timely challenged the charges brought against him, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. At the formal hearing, the Petitioner presented the testimony of Patrick Alzugaray, Officer Gary Kluger, and Officer Martin Drucker. Patrick Alzugaray is the Respondent's son. Officers Kluger and Drucker are law enforcement officers employed by the City of Miami Beach Police Department.

Petitioner also offered three exhibits, each of which was accepted into evidence. No appearance was made on behalf of the Respondent.

No transcript of the proceedings has been filed. The proposed findings of fact submitted by Petitioner are adopted in material part by this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent was certified by Petitioner on November 3, 1978, and was issued Law Enforcement Certificate Number24368.

   
   

2. On or about July 28, 1992, Respondent became the subject of a criminal investigation by the City of Miami Beach Police Department.

   
   

3. The criminal investigation involved an allegation of sexual assault at the Respondent's residence. The complaining witness alleged that Respondent sexually assaulted her and that during the course of the sexual assault Respondent used an artificial penis, which was an ice mold in the shape of a penis.

   
   

4. The Respondent was read his constitutional rights by the City of Miami Beach Police officers who were conducting the investigation. At approximately 4:40 a.m. on July 29, 1992, the investigating officers began their interview of Respondent. During this interview, Respondent was questioned about the existence of the artificial penis. Respondent indicated that he had not seen an artificial penis in his house. The interview of the Respondent was concluded at approximately 5:15 a.m. on July 29, 1992.

   
   

5. At approximately 5:30 a.m. on July 29, 1992, Respondent telephoned his son, Patrick Alzugaray, who was asleep at the residence they shared. Following this telephone call from his father, Patrick immediately got dressed, went to the kitchen of the residence, removed from the freezer section of the refrigerator the artificial penis, went outside the residence, and threw the artificial penis down a chute into a dumpster. This was the only object thrown away by Patrick. He then returned to the residence he shared with his father and went back to sleep.

   
   

6. Shortly thereafter, police officers from the City of Miami Beach Police Department arrived at the residence. Patrick was taken to the police station and interviewed. During this interview, he said that his father had told him "you have to find that damn thing (the artificial penis) in the freezer and throw it away because its embarrassing if they come and find that in there." After being questioned, Patrick showed them where he had disposed of the artificial penis. The artificial penis was retrieved at 6:50 a.m. on July 29, 1992. Patrick initially said that he had disposed of the artificial penis at approximately 6:00 p.m. on July 28, 1992. When he was confronted with the fact that there was still ice inside the artificial penis, he admitted that he had just disposed of it.

   
   

7. Patrick was returned to the police department where he was interviewed on tape. During this interview, Patrick said that he threw the artificial penis away because his father had told him to do so.

   
   

8. The artificial penis matched the description given by the complaining witness and was a material piece of evidence in the investigation.

9. At the formal hearing, Patrick recanted his story and claimed that he was intimidated by the investigating police officers into saying that his father had told him to dispose of the artificial penis. At the formal hearing, Patrick testified that his father only told him that he was being investigated and asked if he knew anything about an artificial penis. Patrick testified that he threw the artificial penis away without being asked to do so by his father.

   
   

10. The evidence is clear and convincing that Respondent was interviewed as a suspect in a sexual assault case, that because of that interview he knew that the artificial penis was a material piece of evidence, and that he telephoned Patrick shortly after the interview. The evidence is also clear and convincing that because of that telephone conversation with his father, Patrick attempted to dispose of this material piece of evidence. Patrick's statements to the police officers at the time of this incident are more consistent with the other facts in this proceeding and are more credible than his testimony at the formal hearing. Consequently, it is found that Patrick attempted to dispose of the artificial penis because his father told him to do so.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

    
    

12. Pursuant to Section 943.13(7), Florida Statutes, law enforcement officers are required to have and maintain good moral character.

    
    

13. Pursuant to Section 943.1395(6), Florida Statutes, the Petitioner is to revoke the certification of any officer who fails to maintain good moral character.

    
    

14. Pursuant to Rule 11B-27.0011(4)(a), Florida Administrative Code (1992), which was in effect at the time of this incident, an officer who commits an act which would constitute a felony offense, whether prosecuted or not, lacks good moral character. In addition lack of moral character may, pursuant to Rule 11B-27.0011(4)(c), Florida Administrative Code, be established by the officer's perpetration of any of an act or conduct which:

    
    

    1. significantly interferes with the rights of others; or

    2. significantly and adversely affects the functioning of the criminal justice system or an agency thereof; or

    3. shows disrespect of the law of the state or nation; or

    4. causes substantial doubts concerning the officer's fitness for continued service . . .

       
       

15. Petitioner established by clear and convincing evidence that Respondent tampered with evidence that was material to a criminal investigation by causing his son to dispose of the artificial penis. Section 918.13, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. No person, knowing that a criminal . . . investigation by a . . . law enforcement

       agency . . . is pending or is about to be instituted, shall:

       (a) alter, destroy, conceal, or remove

       any record, document, or thing with the pur- pose to impair its verity or availability

       in such proceeding or investigation;

       * * *

    2. Any person who violates any provision of this section shall be guilty of a felony of the third degree.

    
    

16. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of moral character as follows:

    
    

    Moral character . . . means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

17. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

18. Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character as alleged in its Amended Administrative Complaint dated June 27, 1995. His conduct demonstrated a lack of good moral character within the meaning of Rule 11B-27.0011(4)(c), Florida Administrative Code, and within the meaning of the decisions cited above.

    
    

19. Rule 11B-27.005(3)(a)5., Florida Administrative Code, provides disciplinary guidelines pertinent to this proceeding. The recommendation that follows is consistent with the guidelines for the violation established by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

facts and conclusions of law contained herein and revokes Respondent's certification as a law enforcement officer.

DONE AND ENTERED this 6th day of May 1996 in Tallahassee, Leon County, Florida.

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 6th day of May 1996.

COPIES FURNISHED:

Karen D. Simmons, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Mr. Peter Alzugaray

3075 Northwest 28th Street Miami, Florida 33142

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

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, 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 ten 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: 95-005988

Orders for Case No: 95-005988