STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME BRODSKY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1788

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted pursuant to Subsection 120.57(1), Florida Statutes, on October 8, 1982, in the Richard P. Daniel Building, Jacksonville, Florida. The transcript in this case was received on November 3, 1982, and has been reviewed prior to the entry of this Recommended Order. 1/

APPEARANCES

For Petitioner: Jerome Brodsky, pro se

Post Office Box 670 Waldo, Florida 32694

For Respondent: Jeffrey Miller, Esquire

Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

ISSUE

The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.

FINDINGS OF FACT

1. Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of

   Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence.

   
   

2. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two

   (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence.

   
   

3. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapters 120 and 943, Florida Statutes.

   
   

5. Ruling had been reserved on the question of the admissibility of Petitioner's Exhibit No. 6. Having considered that item, the exhibit is now admitted and it is noted that Respondent's counsel's objection has been withdrawn on the question of the admissibility of the exhibit.

   
   

6. During the course of the hearing, certain constitutional arguments were made by Petitioner on the topic of the constitutionality of select portions of Chapter 943, Florida Statutes. Petitioner was advised that the Hearing Officer was without authority to make decisions on constitutional matters; however, Petitioner was allowed to proffer those arguments into the record in aide of the pursuit of claims on appeal, if necessary.

   
   

7. Petitioner has been denied his request to be granted a law enforcement officer's certificate premised upon Respondent's impression that he is not entitled to licensure due to the fact that he has failed to comply with one (1) of the requirements for certification as set forth in Subsection 943.13(4), Florida Statutes. That provision states in pertinent part:

   
   

   Law enforcement officers and correc- tional officers; qualifications for employment.-After August 1, 1974, any person employed or appointed as a law enforcement officer, and after July 1, 1981, any person employed or appointed as a correction officer, shall:

   * * *

   (4) Not have been convicted of a felony or of a misdemeanor involving "moral turpitude" as the term is defined by

   law . . . .

8. The larceny offenses for which Petitioner stands convicted are offenses involving "moral turpitude." The offenses for which he stands convicted are felony convictions. Therefore, Petitioner has failed to comply with this requirement related to his certification and in view of the language of Subsection 943.13(4), Florida Statutes, which speaks in terms of an absolute prohibition against licensure, the Petitioner is not entitled to be certified by Respondent as a law enforcement officer in the State of Florida.

Based upon a full consideration of the matters set forth herein, it is RECOMMENDED:

That a final order be entered denying Petitioner's request to be licensed as a law enforcement officer in the State of Florida.

DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25 day of November, 1982.

ENDNOTE

1/ Petitioner has submitted written closing argument. This argument has been considered prior to the entry of this Recommended Order.

COPIES FURNISHED:

Jerome Brodsky

Post Office Box 670 Waldo, Florida 32694

Jeffrey Miller, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Robert R. Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 82-001788

Orders for Case No: 82-001788