STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 05-0052PL

)

WILLETTA R. KENDRICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on March 1, 2005, and May 23, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 For Respondent: Willetta R. Kendrick, pro se

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 7, 2004, Petitioner issued an Administrative Complaint against Respondent alleging the following facts:

1. On or about November 27, 2000, the Respondent, Willetta R. Kendrick, did then make a false statement during the employment application process concerning material matters to officials of the Florida Department of Corrections, pertaining to whether or not she had a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Corrections, with the intent to mislead the agency.

   
   

2. On or about September 18, 2003, the Respondent, Willetta R. Kendrick, did unlawfully, knowingly, and willfully obstruct or oppose Correctional Probation Supervisor Raul Fernandez, Correctional Probation Officer Juan D'Elia, Correctional Probation Officer Sara Miranda-Bermudez, and Detective David Torres, in the lawful execution of any legal duty, to wit: while conducting a pre-planned sex offender compliance check of Javeres Kendrick's bedroom, by failing to follow the instructions of the officers and providing false information to the officers.

   
   

3. On or about November 12, 2003, the Respondent, Willetta R. Kendrick, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Inspector Scott Thomas, in an official proceeding, to wit: in an

internal investigation in regard to a material matter.

According to the Administrative Complaint, "the actions of Respondent did violate the provisions of Section 837.021 and/or

1. or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(a) and/or (b) and/or (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Correctional Officer in the State of Florida have good moral character." On or about August 24, 2004, Respondent requested a "formal hearing pursuant to Section 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings." In her hearing request, Respondent indicated:

   Those material facts which I dispute are:

   
   

   1. that I in any way obstructed the search of my home or impeded the objectives of any police activity.

      
      

   2. that I was disrespectful or rude to any police officer during the raid of my brother's room.[1]

The matter was referred to the Division of Administrative Hearings on January 6, 2005.

The final hearing in this case was initially held and completed on March 1, 2005. Petitioner was represented at the

hearing by counsel. Respondent did not make an appearance, either in person or through her retained counsel or a qualified representative. Four witnesses testified at the hearing: Raul Fernandez, Sara Bermudez, Juan D'Elia, and Scott Thomas. In addition to the testimony of these four witnesses, three exhibits (Petitioner's Exhibits 1 through 3) were offered and received into evidence. Following the presentation of this evidence, the evidentiary record was closed.

On March 22, 2005, Respondent, now representing herself without the assistance of counsel, filed a motion requesting that she be granted a "rehearing due to the fact that [she] was never notified of the last hearing on 3/1/05." A telephone conference call on Respondent's motion was held March 23, 2005. On that same date, following the telephone conference, the undersigned issued an Order Reopening Evidentiary Record, which provided as follows:

1. Petitioner and Respondent shall confer to discuss the possibility of settlement.

   
   

2. If the parties are unable to amicably resolve the instant controversy, further evidentiary proceedings will be held. At these proceedings, Respondent will have the opportunity to object to the admissibility of any evidence that Petitioner offered at the hearing held in this case on March 1, 2005; to cross examine the witnesses whose testimony Petitioner presented at said hearing; and to present her own exhibits and witnesses. After Respondent concludes the presentation of her case, Petitioner will be

   given the opportunity to present rebuttal evidence.

   
   

3. In accordance with Section 120.57(1)(g), Florida Statutes, on Respondent's written request, Petitioner shall make the transcript of the March 1, 2005, proceedings in this case available to Respondent at no more than actual cost.

   
   

4. No later than April 15, 2005, the parties shall advise the undersigned in writing as to whether a settlement has been reached in this case and, if not, those dates on which the parties will be unavailable to participate in further evidentiary proceedings.

   
   

5. Failure to timely file the written advisement required by the preceding paragraph will result in the conclusion that a settlement in this case has been reached and that further evidentiary proceedings are unnecessary. Under such circumstances, the undersigned will close the file of the Division of Administrative Hearings in this case and return the matter to Petitioner.

On April 18, 2005, Petitioner filed a status report advising that there had been no amicable resolution of the instant controversy. Thereafter, on April 20, 2005, the undersigned issued a Notice of Resumption of Hearing, announcing that the final hearing in this case would resume, in accordance with the provisions of the undersigned's March 23, 2005, Order Reopening Evidentiary Record, by video teleconference, at sites in Miami and Tallahassee, Florida, on May 23, 2005.

The final hearing resumed on May 23, 2005, as scheduled.

The only evidence presented was Respondent's own testimony.

(Respondent did not seek to cross-examine any of the witnesses who had testified on March 1, 2005; nor did she challenge the admissibility of any of the evidence that Petitioner had offered on that first day of hearing.)

At the close of the taking of evidence on May 23, 2005, the undersigned established a deadline (10 days from the date of the filing with DOAH of the transcript of this second day of hearing2) for the filing of proposed recommended orders.

The Transcript of the May 23, 2005, hearing session (consisting of one volume) was filed with DOAH on May 26, 2005.

Petitioner filed its Proposed Recommended Order on June 7, 2005. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since November 29, 2001, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 2000056.

2. Javeres Kendrick and Willie Kendrick are Respondent's brothers.

3. Respondent has lived in the same residence as her brother Javeres her entire life.

4. Since February of 1999, when they were placed on probation for committing the felony crime of lewd and lascivious assault on a child under 16 years of age, Javeres Kendrick and Willie Kendrick have been under the supervision of the Florida Department of Corrections (DOC).

5. On or about November 27, 2000, Respondent completed and submitted to the Department of Corrections (DOC) a Correctional Officer/Correctional Probation Officer Supplemental Application. At the time, she did not have any training or experience as correctional or probation officer.

6. Question 4 on this employment application asked:

   
   

   Do you have a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Correction's system?

   If yes, give name, relationship, and place of incarceration/supervision.

   
   

7. Respondent answered this question by checking "No." In doing so, she believed that she was providing accurate information to DOC.

8. Although she was aware that her brothers were on probation, she did not understand them to be "incarcerated or under the supervision of the Florida Department of Correction's system," within the meaning of the question, because they were not in state prison. Furthermore, in her mind, she had a

   familial, not a "business or personal relationship" with her brothers.3

9. Respondent was ultimately employed by DOC as a correctional officer and assigned to Broward Correctional Institution (BCI).

10. On September 18, 2003, a team of DOC correctional probation officers (Team), consisting of Raul Fernandez, Sara Bermudez, and Juan D'Elia, accompanied by local law enforcement officers, including David Torres of the Miami-Dade County Police Department, went to the residence of Javeres Kendrick at 4270 Northwest 197th Street, Miami, Florida, to conduct a "pre- planned sex offender compliance check." The purpose of the Team's visit was to ascertain whether Mr. Kendrick was in compliance with the terms and conditions of his probation.

11. When the Team arrived at the residence, Mr. Kendrick was outside washing a vehicle.

12. The Team members exited their vehicles and walked up to Mr. Kendrick. They identified themselves as correctional probation officers and told Mr. Kendrick that they were there to make sure that he was in compliance with the terms and conditions of his probation. To do so, they advised him, they needed to search his bedroom (which they were authorized to do by the court order placing Mr. Kendrick on probation).

13. Mr. Kendrick responded that his bedroom was "a mess" and that he wanted "to go and clean [it] up" before the Team conducted its search. Despite being told that he "couldn't do that," Mr. Kendrick "bolted" away from the Team members and went "inside the house."

14. Officers Fernandez and D'Elia followed Mr. Kendrick to the front door of the residence, where they were met by Respondent, who "intercepted" them and blocked their paths, thereby "prohibit[ing] [them] from entering [the residence] immediately."

15. While standing in their way and interrupting their pursuit of Mr. Kendrick, Respondent, using profanity, yelled at Officers Fernandez and D'Elia in a "hostile and belligerent" manner, expressing her strong displeasure over their presence at the residence. She told them that they "had no right to be there," adding that "every time [they] show[ed] up there [they] always w[ound] up arresting her brother."4

16. Respondent was asked at least twice to "please move," which she finally did, albeit "in a very slow and deliberate manner."

17. Officer Fernandez instructed Respondent to "take the children out of the residence and to wait outside until [the Team] conducted [its] search."

18. With Respondent out of the way, Officer Fernandez and D'Elia entered the residence.

19. Officer D'Elia spotted Mr. Kendrick "in the second bedroom on the left." Mr. Kendrick had his hand in a chest drawer. While Officer D'Elia "secured" Mr. Kendrick, Officer Fernandez searched the drawer and found "paraphernalia used for the pack[ag]ing of narcotics" and baggies containing what appeared to be cocaine and marijuana.

20. After this discovery was made, Respondent came into the bedroom (contrary to the instructions she had been given) and asked "how much longer [the Team] had left." A conversation between Officer Fernandez and Respondent ensued, during which Officer Fernandez informed Respondent about "the narcotics that were in the drawer."

21. Upon being so informed, Respondent, with the intent to deceive the Team, falsely claimed that the bedroom in which the "narcotics" had been found was not her bother Javeres' bedroom. Rather, she told Officer Fernandez and the other Team members, the bedroom had last been occupied by her uncle, who "had wound up going to jail."

22. As the Team was leading him away from the residence, Mr. Kendrick asked Respondent to "retrieve" for him from "his room" a pair of pants, socks, and tennis shoes that he could wear in jail.

23. Complying with this request, Respondent, followed by Officer Bermudez, went straight to the bedroom in which the "narcotics" had been found (which was Mr. Kendrick's bedroom, contrary to what Respondent had previously claimed) and "retrieve[d]" the items her brother had requested.

24. During her dealings with the Team that day, Respondent revealed that she was a correctional officer at BCI.

25. Upon returning to his office, after having "finished processing Mr. Kendrick and logging in the evidence" seized from Mr. Kendrick's bedroom, Officer Fernandez complained to his supervisor about Respondent's hostile and obstructive conduct during the Team's "compliance check" at Mr. Kendrick's residence earlier that day.

26. Inasmuch as Respondent was a DOC employee, Officer Fernandez's supervisor referred the matter for an internal affairs investigation pursuant to DOC policy.

27. Scott Thomas, a senior prison inspector with DOC, conducted the investigation.

28. As part of his investigation, Inspector Thomas reviewed the contents of Respondent's DOC personnel file (including the employment application she had submitted on November 27, 2000) and obtained sworn affidavits from Officers Fernandez, Bermudez, and D'Elia. In addition, on November 12, 2003, he interviewed Respondent under oath. During the

    interview, among other things, Respondent repeated the falsehood that the bedroom in which the "narcotics" had been found during the September 18, 2003, "compliance check" was not her brother Javeres' bedroom. In addition, she falsely denied ever having used "profanity towards the [Team] members" conducting the "compliance check" and further falsely denied that that the Team members, during the September 18, 2003, "compliance check," ever told her to "wait outside the house." Respondent made these statements to Inspector Thomas knowing that they were not true.

29. Inspector Thomas determined from his investigation that Respondent had "provided untruthful information" on her November 27, 2000, employment application and that she had engaged in "conduct unbecoming" a DOC employee during the September 18, 2003, "compliance check" at her residence.

30. Based on the findings of Inspector Thomas' investigation, Respondent's employment with DOC was terminated.

    CONCLUSIONS OF LAW

    
    

31. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.5

32. At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement or correctional officer in the State of Florida shall "[h]ave a good moral

    character as determined by a background investigation under procedures established by the [Criminal Justice Standards and Training] [C]ommission."

33. At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized Petitioner to revoke the certification of a law enforcement or correctional officer who has failed to maintain "good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties on the certificate holder, to wit: "[s]uspension of certification for a period not to exceed 2 years"; "[p]lacement on a probationary status for a period not to exceed 2 years"; "[s]uccessful completion . . . of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."

34. Such action may be taken only if the certificate holder's lack of "good moral character" is established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence,

    except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").

35. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

36. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegation(s) of lack of "good moral character" made in the charging instrument. Due

    process prohibits an agency from taking penal action against a certificate holder based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care

    Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

    
    

37. Citation in the charging instrument to an incorrect statutory or rule provision is not fatal if the charging instrument otherwise adequately describes the acts establishing the certificate holder's alleged lack of "good moral character." Cf. B. H. v. State, 645 So. 2d 987, 996 (Fla. 1994)("[W]e agree with the district court below that an erroneous reference to a statute in a charging instrument is not fatal to the conviction if the necessary elements of the offense otherwise are properly alleged."); State v. Burnette, 881 So. 2d 693, 695 (Fla. 1st DCA 2004)("An information may withstand an untimely challenge to a technical deficiency . . . where the wrong or no statutory citation is given, but all elements of the crime are properly charged."); Foss v. State, 834 So. 2d 404, 405 (Fla. 5th DCA 2003)("An erroneous reference to a statute in the information is not fatal to a conviction if the information properly pleads the necessary elements of the offense."); Mosely v. State, 688 So. 2d 999, 999-1000 (Fla. 2d DCA 1997)("An erroneous reference to

    the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense."); and Danzy v. State, 603 So. 2d 1320, 1322 (Fla. 1st DCA 1992)("When allegations of fact in an information are sufficient to allege all the elements of an offense, such allegations of fact will ordinarily control over an erroneous reference to a statute, so that the reference to section 944.40 in the instant case should be treated as a scrivener's error.").

38. "'Moral character' . . . [is] 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." Zemour, Inc. v. State Division of

    Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement or correctional officer demonstrates a lack of "good moral character" when he or she engages in "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." Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).

39. Petitioner, which has the ultimate authority to administratively interpret the provisions of Sections 943.13(7)

    and 943.1395, Florida Statutes, has defined in Florida Administrative Code Rule 11B-27.0011(4) what constitutes, "[f]or the purposes of [Petitioner's] implementation of any of the penalties specified in Section 943.1395, [Florida Statutes], a certified officer's failure to maintain good moral character required by Section 943.13(7), [Florida Statutes]."

40. Florida Administrative Code Rule 11B-27.0011(4)(a) and (b)(1) provide that such a "failure to maintain good moral character" includes, among other things:

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

       
       

    2. 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. . . . 837.06, . . . 843.02, . . . .

       
       

41. Section 837.02(1), Florida Statutes, describes the felony crime of "perjury in official proceedings."6 It provides as follows:

    Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s.

    775.082, s. 775.083, or s. 775.084.

    
    

42. An internal affairs investigation such as the one conducted by Inspector Thomas in the instant case is an

    "official proceeding," as that term is used in Section 837.02(1). See Melendres v. State, 739 So. 2d 1237, 1238 (Fla. 3d DCA 1999)("We disagree with Melendres's contention that his sworn statement given during a police internal affairs investigation was not given during an 'official proceeding.' Certainly, the procedures set in place for police internal affairs investigations, and the protections afforded therein to the officer under investigation, are adequate to be considered as 'official proceedings' under the perjury statute.").

43. Section 837.06, Florida Statutes, provides that "[w]hoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083."7

44. "Direct evidence of [deceptive] intent [which is an essential element of the crime described in Section 837.06, Florida Statutes] is often unavailable."8 Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996); see also State

    v. West, 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("[I]ntent is not usually the subject of direct proof."). Circumstantial evidence, however, may be relied upon to prove the deceptive intent which must be shown to establish a violation of Section 837.06, Florida Statutes. Cf. U.S. v. Britton, 289 F.3d 976, 981 (7th Cir. 2002)("As direct evidence of a defendant's

    fraudulent intent is typically unavailable, specific intent to defraud may be established by circumstantial evidence and by inferences drawn from examining the scheme itself that demonstrate that the scheme was reasonably calculated to deceive persons of ordinary prudence and comprehension.")(internal quotation marks omitted).

45. Section 843.02, Florida Statutes, makes "resisting [an] officer without violence to his or her person" a first degree misdemeanor. It provides as follows:

    Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

46. "Law enforcement officers" and "correctional probation officers" are among the "officers" referenced in Section 843.02. See § 943.10(1), Fla. Stat. ("'Law enforcement officer' means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make

    arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. . . ."); and § 943.10(3), Fla. Stat. ("'Correctional probation officer' means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.").

47. "[T]o support a conviction for resisting an officer without violence, the state must show (1) that the officer was engaged in lawful execution of legal duty, and (2) that the action by the defendant constituted obstruction or resistance of that lawful duty." Francis v. State, 736 So. 2d 97, 98 (Fla. 4th DCA 1999).

48. "Section 843.02 does not require that the attempted obstruction succeed. Nor does it limit the offense to resisting arrest, or obstructing only the arresting officer." Simeon v. State, 778 So. 2d 455, 456 (Fla. 4th DCA 2001).

49. "[O]bstructive conduct rather than offensive words are normally required to support a conviction under this statute." D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995). "[W]ith limited exceptions, physical conduct must accompany offensive words to support a conviction under this statute." Francis, 736 So. 2d at 99. Such physical conduct includes blocking the path of an "officer" who is trying to carry out his or her lawful duties. Id. ("[T]he record reflects that Nellie, in addition to stating these words to Banas, physically blocked his path when he went over to investigate Sheldon's physical condition. As such conduct satisfies the second prong of section 843.02, we affirm.").

50. Words alone may be sufficient to violate Section

    
    

    843.02 if they constitute falsehoods and are intended to mislead the "officer" in the execution of his or her official duties. See Simeon, 778 So. 2d at 456 ("Here, the record contains evidence that both officers had the responsibility of investigating the crimes, and that appellant gave a false name and date of birth to both. We therefore hold that when appellant gave Ragin a false name and date of birth, he was resisting Ragin in the execution of his duty to confine adult arrestees in adult detention facilities.").

51. In the instant case, Petitioner is seeking to take disciplinary action against Respondent on the ground that

    Respondent has failed to maintain "good moral character" in that: "(a) [o]n or about November 27, 2000, [she] did then make a false statement during the employment application process concerning material matters to officials of the Florida Department of Corrections, pertaining to whether or not she had a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Corrections, with the intent to mislead the agency" (hereinafter referred to as "Allegation One"); "(b) [o]n or about September 18, 2003, [she] did unlawfully, knowingly, and willfully obstruct or oppose Correctional Probation Supervisor Raul Fernandez, Correctional Probation Officer Juan D'Elia, Correctional Probation Officer Sara Miranda-Bermudez, and Detective David Torres, in the lawful execution of any legal duty, to wit: while conducting a pre-planned sex offender compliance check of Javeres Kendrick's bedroom, by failing to follow the instructions of the officers and providing false information to the officers" (hereinafter referred to as "Allegation Two"); and (c) [o]n or about November 12, 2003, [she] did unlawfully make a false statement, which she did not believe to be true, under oath administered by Inspector Scott Thomas, in an official proceeding, to wit: in an internal investigation in regard to a material matter." (hereinafter referred to as "Allegation Three").

52. With respect to Allegation One, Petitioner failed to prove by clear and convincing evidence that Respondent made the "statement" at issue on her DOC employment application "with the intent to mislead the agency," as Petitioner has alleged. While Petitioner may have made out, through circumstantial proof, a prima facie case of deceptive intent, any presumption of deceptive intent that may have arisen from Petitioner's proof in its case-in-chief was rebutted and overcome by the uncontradicted, credible testimony that Respondent gave in her own defense concerning her understanding of the question on the employment application in response to which she made the "statement" that is the subject of Allegation One.9

53. With respect to Allegation Two, Petitioner established by clear and convincing evidence that Respondent engaged in the obstructive conduct alleged by Petitioner and thereby violated Section 843.02, Florida Statutes, a violation which constitutes a "failure to maintain good moral character" and warrants the imposition of an appropriate penalty.

54. With respect to Allegation Three, Petitioner established by clear and convincing evidence that Respondent engaged in the perjurious conduct alleged by Petitioner and thereby violated Section 837.02(1), Florida Statutes, a violation which constitutes a "failure to maintain good moral

    character" and warrants the imposition of an appropriate penalty.

55. In determining what disciplinary action Petitioner should take against Respondent for her "fail[ing] to maintain good moral character" by engaging in the conduct described in Allegations Two and Three of the Administrative Complaint, it is necessary to consult Petitioner's "disciplinary guidelines." See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233-34 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties.").

56. Petitioner's "disciplinary guidelines" are set forth in Florida Administrative Code Rule 11B-27.005, which provides, in pertinent part, as follows:

    * * *

    
    

    (4)(a) The Commission sets forth in paragraphs (5)(a)-(d) of this rule section, a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have been found by the Commission to have violated Section 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties that shall be imposed for particular violations of Section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in subsection (6) of this rule section. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All

    penalties at the upper range of the sanctions in the guidelines, (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), that may be included in the final penalty at the Commission's discretion.

    
    

    * * *

    
    

    1. When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       
       

       1. For the perpetration by the officer of an act that would constitute any felony offense, pursuant to paragraph 11B- 27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that shall be imposed, absent mitigating circumstances, include the following:

          
          

          * * *

          
          

          8. Violation: False Statements (837.02, 837.021, 837.05(2), F.S.); Recommended Penalty Range: Prospective suspension to revocation.

          
          

       2. For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification. . . .

          * * *

          
          

    2. The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:

    
    

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

          
          

       2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

       3. The number of violations found by the Commission.

          
          

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.

          
          

       5. The severity of the misconduct.

          
          

       6. The danger to the public.

          
          

       7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

          
          

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

          
          

       10. Whether the misconduct was motivated by unlawful discrimination.

           
           

       11. Any behavior constituting "domestic violence" defined by Section 741.28(1), F.S.

           
           

       12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

       
       

    2. Mitigating circumstances:

    
    

    1. The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

       
       

    2. The recommendations of character or employment references.

       
       

    3. The lack of severity of the misconduct.

       
       

    4. The length of time the officer has been certified by the Commission.

       
       

    5. Any effort of rehabilitation by the certified officer.

       
       

    6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.

       
       

    7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

       
       

    8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

57. Having carefully considered the facts of the instant case in light of the foregoing provisions of Florida Administrative Code Rule 11B-27.005, the undersigned finds that the disciplinary action that should be taken against Respondent for the two violations she committed is revocation of her certificate.10

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of Allegation Two and Three and, based on these findings of guilt, revoke her certification.

DONE AND ENTERED this 21st day of June, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 21st day of June, 2004.

ENDNOTES

1 The material facts alleged in the Administrative Complaint that Respondent did not dispute in her hearing request are, for purposes of this proceeding, deemed admitted. See Schafer v. Department of Business and Professional Regulation, 844 So. 2d 757, 758 (Fla. 1st DCA 2003).

2 The Transcript of that portion of the final hearing held on March 1, 2005, (consisting of one volume) had already been filed with DOAH (on April 7, 2005).

3 Respondent's view that the term "personal relationship," as used in the question, did not include a relationship with a family member, while perhaps not the most reasonable interpretation of the term, was not entirely unreasonable. See, e.g., St. George Island, Ltd. v. Rudd, 553 So. 2d 772, 773 (Fla. 1st DCA 1989)("[T]he motions directed to Judge Gary were expressly based on personal relationships, not familial

ones, . . ."); and Koppelman v. O'Keeffe, 535 N.Y.S.2d 871, 874 (N.Y. Sup. Ct. 1988)("[B]eyond the immediate family, and indeed even at times including the immediate family, personal relationships are oft times far 'closer' than familial relationships.").

4 These remarks reflect that Respondent knew who Officers Fernandez and D'Elia were and why they had come to the residence.

5 All references to Florida Statutes are to Florida Statutes (2004) unless otherwise specified.

6 Although the Administrative Complaint alleges a violation of Section 837.021, not Section 837.02(1), Florida Statutes, it is evident from an examination of the Administrative Complaint's factual allegations that this represents a mere scrivener's error and that Petitioner actually intended to charge Respondent with violating the latter, not the former, statutory provision.

7 While the Administrative Complaint does not specifically mention Section 837.06, Florida Statutes, it does allege facts establishing the elements of this misdemeanor offense.

8 "Direct evidence [of deceptive intent] is evidence that, if believed, would prove the existence of [such] intent without

resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 *3 n.9 (Fla. DOAH February 19, 2003)(Recommended Order).

9 The undersigned is free to credit this unrebutted testimony of Respondent's, even though he disbelieves other portions of her testimony (dealing with other matters) which were contradicted by more credible testimony. See Gantling v. State, 23 So. 857, 860 (Fla. 1898)("Under the legal maxim, 'Falsus in uno, falsus in omnibus,' a jury may disregard the entire testimony of a witness where such witness has willfully and knowingly or corruptly sworn falsely to a material fact in the

case . . . , but they are not required to do so."); Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is free to believe parts of a witness' testimony and disbelieve other parts."); and Payne v. U.S., 516 A.2d 484, 495 (D.C. 1986)("Nor do we find that Horn's testimony was inherently unbelievable because it was inconsistent with the testimony of other government witnesses, and was at times, internally inconsistent. It is axiomatic, that as assessors of a witness' credibility, the jury is always free to accept parts of a witness' testimony and reject other parts.").

10 In its Proposed Recommended Order, Petitioner argues that an "aggravating factor" supporting revocation as the appropriate penalty in the instant case is that "Respondent chose to testify at the formal hearing and present[ed] false testimony concerning her actions." The undersigned disagrees that Respondent's "false testimony" at hearing is a factor that should be should be taken into consideration in determining what penalty Respondent should receive, and he has not taken into consideration Respondent's lack of candor at hearing in making his penalty recommendation to the Commission. See In re Davey, 645 So. at 406 ("[O]nly where lack of candor is formally charged and proven may it be used as a basis for removal or

reprimand. . . . We see no reason to treat lack of candor differently from any other charge that the Commission investigates. Indeed, given the consequences that attach to a finding of lying under oath, every judge has a right to expect adequate notice and an opportunity to be heard on this issue."); Bernal v. Department of Professional Regulation, Board of Medicine, 517 So. 2d 113, 115 (Fla. 3d DCA 1987), approved, 531 So. 2d 967 (Fla. 1988)(disciplinary action against licensee may not be increased based upon licensee's "alleged lack of candor in his testimony before the hearing officer[,] . . . an offense with which he was not charged"; "one's conduct in defending an

action against him may not be the subject of an increased penalty if he is nevertheless found guilty of the substantive crime charged."); and Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993)("It is also clear that the Board voted to revoke Klein's license to practice medicine based on its belief that Klein had committed infractions not charged and was untruthful. Neither of these grounds provide support for the Board's action."); but see Jimenez v. Department of Professional Regulation, Board of Medicine, 556 So. 2d 1219, 1220-21 (Fla. 4th DCA 1990)(doctor's giving false testimony at final hearing in disciplinary action against doctor found to be "sufficient" ground upon which Board of Medicine could "enhance" penalty recommended by hearing officer).

COPIES FURNISHED:

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services 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

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 Willetta R. Kendrick

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: 05-000052PL

Orders for Case No: 05-000052PL