STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KRISTOPHER A. KLINE, )

)

Respondent. )

Case No. 04-3017PL

)

RECOMMENDED ORDER

Notice was provided and on October 26, 2004, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2004). The hearing was held in the Offices of Judges of Compensation Claims, 2401 State Avenue, Suite 100, Panama City, Florida. The case was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Kristopher A. Kline, pro se

1801 Minnesota Avenue

Lynn Haven, Florida 32444

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with his correctional certificate?

PRELIMINARY STATEMENT

On March 7, 2003, by an Administrative Complaint in Case No. 17722, Petitioner accused Respondent of knowingly obtaining or using, or endeavoring to obtain or use property valued at

$300.00 or more, the property of another, to wit: Wal-Mart as owner or custodian, with the intent to temporarily or permanently deprive the owner or custodian of that property or the right to benefit from the property or to appropriate the property for Respondent's own use or use of another person not entitled to that use. This incident is alleged to have occurred on or about December 13, 2000. Further, Respondent is alleged to have violated Section 812.014, Florida Statutes (2000), or any lesser included offenses, Section 943.1395(6) and (7), Florida Statutes (2000), and Florida Administrative Code Rule 11B-27.0011(4)(a). The Administrative Complaint also refers to an alleged violation of Section 943.13(7), Florida Statutes (2000).

Respondent disputed the allegations in the Administrative Complaint found in paragraphs 2 and 3, through an election of rights form received by Petitioner on April 7, 2003. By this choice Respondent sought an administrative hearing pursuant to

Section 120.57(1), Florida Statutes, before an administrative law judge assigned by the Division of Administrative Hearings (DOAH). Consistent with Respondent's request Petitioner forwarded the case to DOAH on August 25, 2004. Following assignment, a formal hearing was conducted on the aforementioned date.

Petitioner presented Terrance Cotton, Deputy Ryan Roberts, Corrections Probation Officer Donna Ashbrook, and Inspector Charles Hubbard as its witnesses in the case-in-chief.

Respondent testified in his own behalf in defense. Petitioner presented Deputy Jason T. Johnson as a rebuttal witness.

Respondent offered testimony as surrebuttal. Petitioner's Exhibits numbered 1 and 2 were admitted.

On November 10, 2004, a hearing transcript was filed with DOAH. Petitioner filed a proposed recommended order which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on June 12, 2000, and was issued Correctional Certificate No. 191694.

2. At times relevant to the inquiry, Respondent has been employed as a corrections officer at Bay Correctional Facility.

3. On December 13, 2000, Wal-Mart operated a store on 23rd Street in Panama City, Florida. From that store Wal-Mart was engaged in retail sales.

4. On December 13, 2000, Edith Hutchinson went alone to the Wal-Mart store on 23rd Street. Respondent knew that Edith Hutchinson was going to the Wal-Mart store. Edith Hutchinson and Colin Hutchinson are husband and wife. At the time Colin Hutchinson was Respondent's roommate. It was intended that the three persons named meet at Wal-Mart. Respondent and his roommate came to the store later.

5. When Respondent and Colin Hutchinson arrived at Wal- Mart Edith Hutchinson was coming out of the store. She had purchased a computer which she put in her car. She then handed Colin Hutchinson the receipt for the purchase of the computer. Respondent knew the purpose of handing over the receipt was to allow Colin Hutchinson to return to the store and get another computer using the receipt as evidence of a fraudulent purchase. Colin Hutchinson had told Respondent that this was the intention while they were in the parking lot at Wal-Mart.

6. Pursuant to the plan to obtain a second computer with the receipt evidencing the purchase of the first computer, Respondent and Colin Hutchinson entered the Wal-Mart store. Once inside the store Respondent and Colin Hutchinson went to the area where the computers were being sold and placed a second

   computer in a shopping buggy. They then proceeded to the lawn and garden center in the store with the intention to exit the store from that area. Colin Hutchinson gave Respondent the receipt evidencing the purchase of the first computer.

   Respondent had that receipt in his left back pocket when he arrived at the lawn and garden center with Colin Hutchinson and the second computer in the shopping buggy. Respondent took the receipt from his pocket. Respondent handed the receipt to a store employee, with the idea that this receipt would evidence purchase of the second computer, not the first computer. The Wal-Mart employee shown the receipt is referred to as a "people greeter." That individual accepted the receipt as being evidence of a purchase related to the second computer, when in fact Respondent and the Hutchinsons had never purchased the second computer by payment. The receipt had been shown at the last set of doors exiting the store.

7. Respondent and Colin Hutchinson did not stop at any register in the Wal-Mart store to pay for the second computer, to include the register in the garden center. Instead the two passed the register in the garden center in route to the "people greeter." Respondent had not received a second receipt from any of the cashiers while in the store.

8. The second computer which was not paid for had an approximate value of $798.00 at retail and was part of the stock of the Wal-Mart store.

9. Respondent and Colin Hutchinson still had the second computer with them when they were stopped outside of the store beyond the second set of doors where the greeter had been posted. Respondent and Colin Hutchinson were stopped outside the store by a store security employee Terrance Cotton. When confronted, Respondent told Mr. Cotton that the intention was to pay for one computer and get another one with the receipt from the first purchase.

10. Respondent also knew that the first computer had been purchased with a worthless check. Later money was put into the checking account for Edith Hutchinson and the payment for the first computer was completed. Before money had been placed in the account sufficient to cover the purchase of the first computer, that computer had been removed from Edith Hutchinson's car.

11. Wal-Mart retrieved the second computer that was in the possession of Respondent and Colin Hutchinson when they exited the store.

12. Respondent was arrested for grand theft by the Bay County Sheriff's Office involving the incident related to the second computer that he had removed from the Wal-Mart store

    without paying for it. After being advised of his Miranda rights he gave a statement that is essentially in keeping with the facts that have been previously found in this Recommended Order.

13. Respondent was allowed to participate in a pretrial intervention program to address the criminal charge of grand theft. As a condition to participation he had to acknowledge responsibility for the theft. He successfully completed that program. As a consequence no criminal record exists concerning the grand theft charge.

14. Beyond the incident Respondent has continued to work for Corrections Corporation of America at the Bay Correctional Facility and has been twice promoted. He is in good standing with his employer.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2004).

16. By this action, Petitioner seeks to discipline Respondent concerning his correctional certificate. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's correctional certificate. The nature of

    that proof must be by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Department of

    Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996).

17. Concerning the factual allegations in this case, the Administrative Complaint in paragraph 2 states:

    On or about December 13, 2000, the Respondent, Kristopher A. Kline, did knowingly obtain or use, or endeavor to obtain or use property valued at three hundred dollars ($300.00) or more, the property of another, to-wit: Wal-Mart, as owner or custodian thereof, with the intent to temporarily or permanently deprive the owner or custodian of a right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto.

    
    

18. Among the grounds for discipline referred to in the Administrative Complaint is Section 943.1395(6), Florida Statutes (2000), which states in pertinent part:

    The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) . . . .

    
    

19. Section 943.13(4), Florida Statutes (2000), states in pertinent part:

    Officers' minimum qualifications for employment or appointment.

    
    

    (4) Not have been convicted of any felony or a misdemeanor involving perjury or a false statement . . . . Any person who,

    after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding the suspension of sentence or withholding of adjudication.

    Notwithstanding the subsection, any person who has plead nolo contendere to a misdemeanor involving a false statement, prior to December 1, 1985, and has had such records sealed or expunged shall not be deemed ineligible for employment or appointment as an officer

    
    

    * * *

    
    

20. More specifically, the Administrative Complaint is concerned with Section 812.014, Florida Statutes (2000), which states in pertinent part:

    
    

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or a benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

          
          

          * * *

          
          

          (2)(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

          
          

          1. Valued at $300 or more, but less than

          $5,000. . . .

21. The nature of the offense referred to in the Administrative Complaint is unrelated to perjury or a false statement. Consequently, it has not been proven that Respondent violated Section 943.1395(6), Florida Statutes (2000).

22. Alternatively, Respondent is being prosecuted pursuant to Section 943.1395(7), Florida Statutes (2000), which states:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

       
       

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

23. A rule referred to in the Administrative Complaint which deals with the maintenance of good moral character is

    Florida Administrative Code Rule 11B-27.0011(4)(a), which states:

    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), a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    (a) The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

    
    

24. Section 943.13(7), Florida Statutes (2000), mentioned in the Administrative Complaint, also refers to the need for an officer to "have a good moral character as determined by a back ground investigation under procedures established by the commission."

25. Respondent and the Hutchinsons were arrested for theft involving their removing the second computer from the Wal-Mart store without paying. Respondent was charged with a criminal offense for his part in the endeavor. The criminal case was resolved through Respondent's participation in the pretrial diversion program. That resolution did not preclude consideration of the facts involved in the circumstances at Wal- Mart, to determine through the administrative prosecution whether Respondent violated Section 812.014, Florida Statutes (2000). If proven in this proceeding it would demonstrate that

    Respondent failed to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4)(a), thereby violating Section 943.1395(7), Florida Statutes (2000). It was proven.

26. Clear and convincing evidence was shown that Respondent violated Section 812.014, Florida Statutes (2000), by his knowingly obtaining the Wal-Mart property worth approximately $798.00 with the intent to permanently deprive Wal-Mart of the right to the property. Respondent appropriated the property to his use and that of the Hutchinsons. They were not entitled to the use of the property. This by its terms constitutes grand theft of the third degree, a felony of the third degree punishable as such.

27. Disciplinary guidelines are established in Florida Administrative Code Rule 11B-27.005, pertaining to the violation described. With those guidelines in mind, a recommendation for punishment is offered based upon the facts found and the conclusions of law reached, absent a prior disciplinary history.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a Final Order be entered finding the violation of the statutes and rule and revoking Respondent's correctional certificate.

DONE AND ENTERED this 8th day of December, 2004, in Tallahassee, Leon County, Florida.

S

________

CHARLES C. ADAMS

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 8th day of December, 2004.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Kristopher A. Kline 1801 Minnesota Avenue

Lynn Haven, Florida 32444

Michael Crews, Program Director Criminal Justice Standards

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

Michael Ramage, General Counsel 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 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: 04-003017PL

Orders for Case No: 04-003017PL