STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 04-2018

)

HOMER ROZIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 11, 2004, by way of video teleconferencing with sites in West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Homer Rozier, pro se

633 Southwest Eighth Street, No. 5 Belle Glade, Florida 33430

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

By Administrative Complaint issued December 12, 2003, Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, charged Respondent

Homer Rozier with violating the statutes and rules regulating his conduct as a correctional officer, and Respondent timely requested a hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary hearing.

The Department presented the testimony of Chad Pelham and Demetrius Scruggs, and Respondent Homer Rozier testified on his own behalf. Additionally, the Department's Exhibits numbered 1 and 2 were admitted in evidence. Although Respondent was granted leave to file an exhibit after the conclusion of the hearing, he did not do so.

The Department filed its Proposed Recommended Order on September 21, 2004. The Respondent waived his right to file one.

FINDINGS OF FACT

1. At all times material hereto, Respondent Homer Rozier has been certified as a correctional officer in the State of Florida. On February 17, 2003, Respondent was employed at the South Bay Correctional Facility. He resigned from that employment on or about July 16, 2003.

2. On February 17, 2003, Chad Pelham was employed as a loss prevention officer at the Wal-Mart located in Clewiston, Florida. As a law enforcement officer certified by the State of Florida for the five years previous, Pelham had been trained in law enforcement techniques, including observation, and was qualified to perform store security duties.

3. On that date, Respondent and his wife entered the Wal- Mart to shop. Since other Wal-Mart employees told Pelham they suspected that Respondent had stolen items from the store on previous occasions, Pelham and his partner followed Respondent and his wife, watching them as they shopped.

4. Respondent and his wife selected some baby shoes from the shelf, removed the tags, and placed the shoes on their infant. They continued walking through the store, stopping to remove a bottle of water from the Wal-Mart cooler, and drinking the water as they shopped.

5. Respondent and his wife proceeded to the houseware section. Respondent removed two wallpaper borders and a

   bathroom tumbler from the displays and hid them in his baby's diaper bag that he had in the shopping cart.

6. In the deli department of the store Respondent and his wife obtained a bag of chicken. They ate the chicken as they walked through the store and then discarded the bag.

7. In the electronics section of the store Respondent took two magazines related to certain electronic games, such as Nintendo X-box, and put them in his shopping cart. These magazines were sold by Wal-Mart for approximately $15 and $13. When Respondent was in the housewares section he placed the magazines under some towels (or rugs), concealing them.

8. Respondent and his wife then proceeded to the cashier and paid for some of the merchandise they had taken. They did not pay for the chicken they had eaten or the water they had drunk or the baby shoes they had placed on their baby's feet.

9. After paying for the items in their cart and having those items placed in blue Wal-Mart bags, Respondent and his wife left the register area as they would do to exit the store. They did not exit, however. Instead, carrying the Wal-Mart bags containing the items they had paid for, they split up, with Respondent returning to the housewares section and his wife returning to the groceries section.

10. In the housewares section, Respondent retrieved the gaming magazines he had hidden under the towels (or rugs) and

    placed them in the Wal-Mart bags containing items that had been purchased. He then rejoined his wife in the grocery aisles where they placed some small items in the bags containing the items that they had purchased.

11. They then proceeded to exit the store without returning to a cashier to pay for the items they had not purchased. After Respondent and his wife exited through the first of two sets of exterior doors, Pelham and his partner detained them.

12. Pelham and his partner retrieved the merchandise Respondent and his wife had not paid for and contacted the City of Clewiston Police Department. Officer Demetrius Scruggs responded to the call, coming to the store and arresting Respondent for retail theft.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

14. The Administrative Complaint filed in this cause alleges that by unlawfully taking property from Wal-Mart Respondent violated Section 812.014(3)(a) or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B-27.0011(4)(b) in

    that Respondent has failed to maintain the qualifications established in Section 943.13(7).

15. In this disciplinary proceeding, the Department bears the burden of proving its allegations by clear and convincing evidence if the Department seeks revocation or suspension of Respondent's certification. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). The Department has met its burden of proof.

    
    

16. Section 943.13(7), Florida Statutes, requires that a correctional officer in the State of Florida have a good moral character, and Section 943.1395(7) sets forth the penalties that may be imposed upon a certified officer who fails to maintain a good moral character. The court in Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), in deciding a case with dissimilar facts, has provided this definition:

    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. The Criminal Justice Standards and Training Commission has promulgated Florida Administrative Code Rule 11B-27.0011(4) which more specifically defines "good moral character" for purposes of imposing disciplinary action against Florida correctional officers, as follows:

    
    

    (4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    * * *

    
    

    1. Sections . . . 812.014, . . . F.S.

    
    

18. Respondent's testimony that his wife stole and/or attempted to steal the items from Wal-Mart without his knowledge is, at best, not credible. His testimony that the charge(s) of petit theft filed against him was nolle prossed was not rebutted by the Department. Under Florida Administrative Code Rule 11B- 27.0011(4)(b), however, a criminal prosecution is not a prerequisite to a finding that a certified officer has failed to maintain good moral character.

19. The Department has proven clearly and convincingly that Respondent committed petit theft as defined by Section 812.014(3)(a), Florida Statutes, and has thereby failed to maintain a good moral character as required by Sections 943.13(7) and 943.1395(7), Florida Statutes, and by Florida Administrative Code Rule 11B-27.0011(4)(b)1.

20. In its proposed recommended order, the Department recommends that Respondent's certification as a correctional officer be revoked. Although Florida Administrative Code Rule 11B-27.005(5)(b) establishes the range of penalties for petit theft as encompassing suspension of certification to revocation, revocation is too harsh in this case. Due to Respondent's reputation among Clewiston Wal-Mart employees, he was placed under surveillance upon entering the store. When he attempted to leave the store without paying for items he had taken, he was apprehended and those items were retrieved but for the chicken and water he had consumed. Further, no evidence was offered that Respondent has previously been the subject of disciplinary action. A temporary suspension of his certificate will serve as a warning to him that more serious disciplinary action is likely to flow from again violating any statutes and rules regulating his conduct as a certified correctional officer.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and suspending his certification as a correctional officer for a period of 90 days.

DONE AND ENTERED this 23rd day of September, 2004, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 23rd day of September, 2004.

COPIES FURNISHED:

Rod Caswell, Program Director

Division of Criminal Justice Standards and Training

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

Michael Ramage, General Counsel Division of Criminal Justice Standards

and Training

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

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Homer Rozier

633 Southwest Eighth Street, No. 5 Belle Glade, Florida 33430

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-002018PL

Orders for Case No: 04-002018PL