STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4559

)

ALVIN L. CURRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on January 25, 1999.

The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr.

Assistant General Counsel Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Alvin L. Curry, pro se

2197 Mitchell Court

Fort Myers, Florida 33916 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 9, 1998, Petitioner alleged that Respondent was a certified law enforcement officer employed by the Lee County Port Authority at the time in question. The Administrative Complaint alleges that, on July 16, 1996, Respondent falsified a property receipt and obtained property or money worth less than $300 with the intent to deprive the lawful owner of its possession. The Administrative Complaint alleges that, on November 24, 1996, Respondent obtained property or money worth less than $300 with the intent to deprive the lawful owner of its possession.

At the hearing, Petitioner announced that it would present no evidence supporting the July 16 allegations.

The Administrative Complaint alleges that these acts violate Sections 943.1395(6) and (7), Florida Statutes, and Rule

11B-27.0011(4)(a) and (b), Florida Administrative Code, because Respondent failed to maintain the good moral character required by Section 943.13(7), Florida Statutes.

At the hearing, Petitioner called two witnesses and offered into evidence two exhibits, which were admitted. Respondent called one witness and offered into evidence no exhibits.

The court reporter filed the Transcript on February 22, 1999.

FINDINGS OF FACT

1. Petitioner granted Respondent law enforcement certificate number 62593 on December 4, 1984.

2. On November 24, 1996, Respondent was employed as a patrol officer by the Lee County Port Authority Police Department. The incidents in question took place in the vicinity of the Southwest Florida International Airport in Fort Myers.

3. Due to reports of stolen property, the Lee County Port Authority Police Department conducted an Officer Integrity Operation, which is a manufactured situation designed to test whether an officer will recover and process lost or stolen property with integrity and in compliance with department policy.

4. Thus, one of the officers of the police department secured a rental car from an airport rental car company and placed $150 in marked currency inside a bank envelope, sealed the envelope, and placed the sealed envelope on the center console in front of the gear shifter. The officer then drove the rental car to a location beside a service road inside the airport complex. The officer left a handwritten note on the windshield explaining that the car had broken down and the driver had had to catch a flight. The officer left the car keys with the note, and the bank envelope remained in the vehicle when he left the scene and assumed a surveillance position about 40-50 yards from the

   vehicle, which was never out of his sight from the moment he began to walk away from the vehicle.

5. Another officer then dispatched Respondent to check out the vehicle, which the dispatcher reported to be apparently abandoned. At approximately 7:16 a.m., Respondent, while in uniform, arrived at the vehicle's location in a marked patrol car and radioed in the tag number to determine ownership. About three minutes later, he entered the vehicle.

6. Respondent remained in the vehicle for four minutes. He searched the vehicle and found the envelope with the money inside, as well as a rental car contract. He returned to his marked car for a minute before returning to the rental car and moving it to the shoulder of the road at 7:22 a.m.

7. At about 7:27 a.m., Respondent checked the trunk of the marked car. Less than a minute later, Respondent returned to his marked vehicle with the keys and contract to the rental car and drove away. He drove directly to the rental car agency to return the keys and contract. A representative of the agency informed him that they were sending a wrecker and asked that he return the keys to the rental car. At about 7:35 a.m., Respondent informed the dispatcher that he was returning to the rental car to return the keys.

8. While at the rental car agency, the rental agents asked Respondent to pick up their breakfasts at a nearby Waffle House. Respondent drove to the Waffle House, after returning the keys to

   the rental car at 7:40 a.m., and paid for the breakfasts with a marked $10 bill.

9. Shortly after this, an officer of the police department ordered Respondent to return to the airport station. Respondent met the officer at the station. The officer asked Respondent if he had any money in his pockets. Respondent reached into his right pants pocket and handed the officer $11.

10. The officer took the money to his vehicle where he could examine it to see if it was the marked currency. After determining that it was not, the officer returned to Respondent and asked him if he had any other money. Respondent stared at the officer for 15-20 seconds, and then he handed the officer

    $140 in currency. When the officer checked the currency, he found it was $140 of the $150 of marked currency.

11. The officer then asked Respondent where the bank envelope was. Respondent denied knowledge of a bank envelope. The officer asked Respondent where the missing $10 was, and Respondent replied that he had used it to purchase others' breakfasts at the Waffle House.

12. Any attempt by Respondent to suggest that he intended to relinquish possession of the currency is rebutted by four facts: he used $10 of the currency to buy breakfast, he paused for a considerable time before producing the $140 in currency, he did not mention any intent to turn in the money when he handed the currency to the officer, and he lied about the bank envelope.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

14. Section 943.13 provides that the minimum qualifications for certification as a law enforcement officer includes good moral character. Section 943.1395(7) provides that, upon finding that a certified law enforcement officer has not maintained good moral character, Petitioner may impose the penalties of revocation, suspension for not more than two years, probation for nor more than two years, required education, and a reprimand.

15. Theft establishes a lack of good moral character.

    
    

16. Rule 11B-27.005(5) provides that the penalty guideline for theft of this amount is suspension.

17. Rule 11B-27.005(6) identifies as aggravating circumstances misconduct committed while the officer was performing his official duties, an officer using his or her official authority to facilitate the misconduct, and the deterrent effect of a penalty. Respondent's lack of candor at the hearing, at which he testified falsely to his version of events, although not a separate charge, nonetheless is an aggravating factor in determining the penalty for the subject offense.

18. The aggravating factors suggest some increase in penalty over the guideline of suspension. The only more severe penalty would be revocation, although the punishment of suspension could be increased by adding two years of probation. In the absence of record evidence of mitigating circumstances, there appears no reason why the Commission should not impose the punishment of revocation sought in Petitioner's Proposed Recommended Order.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his certificate.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

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

Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Richard D. Courtemanche, Jr. Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Alvin L. Curry

2197 Mitchell Court

Fort Myers, Florida 33916

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-004559

Orders for Case No: 98-004559