STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1140

)

EARL L. COLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 26, 1985, in Pompano Beach, Florida.

The Petitioner Criminal Justice Standards and Training Commission was represented by Joseph S. White, Esquire, Tallahassee, Florida. Respondent Earl L. Cole failed to appear, and no one appeared on his behalf.

On February 9, 1984, Petitioner issued an Administrative Complaint against Respondent and Respondent responded by filing his Election of Rights disputing the allegations of fact contained in that Administrative Complaint. On November 8, 1985,Petitioner filed a Motion for Leave to Amend attaching its proposed Amended Administrative Complaint as Exhibit Two to that Motion. On November 20, 1985, Petitioner's Motion for Leave to Amend was granted. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained in that Amended Administrative Complaint and, if so, what disciplinary action should be taken against Respondent, if any.

No witness testified on behalf of either party, and the only evidence offered at the final hearing herein was admitted as Petitioner's Exhibits numbered 1-3.Petitioner submitted post- hearing Petitioner's Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact appears in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. On March 6, 1984, a person named Earl Cole, who is or was also known as Robert E. Cole entered pleas of nolo contendere in the Circuit Court, Fifteenth Judicial Circuit, in and for Palm B3each County, Florida, to the following:

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section120.57(1), Florida Statutes.

   
   

2. When Petitioner transmitted this cause to the Division of Administrative Hearings on April 11, 1985, for the conduct of a formal hearing, it transmitted an Administrative Complaint dated February 9, 1984. That Administrative Complaint contained allegations covering a time period from February 5, 1980, to January 4, 1983. That Administrative Complaint contains no factual allegation as to any certification issued to Respondent by Petitioner. In response to that Administrative Complaint, Respondent filed with Petitioner on April 8, 1985, his Election of Rights form wherein he specifically advised that the allegations of fact in the Administrative Complaint are disputed: he also attached to that Election of Rights form a

   one-page letter which advises that the information in the Administrative Complaint is false; beyond that, the letter is unintelligible.

   
   

3. On October 15, 1985, Petitioner filed in this cause a document entitled Amended Administrative Complaint which contains 2 factual allegations: first, that Respondent was certified by Petitioner on a certain date and was issued a certain certificate and, second, an allegation as to a specific

   event which occurred on January 12, 1984. That Amended Administrative Complaint is dated October 11, 1985, and was signed by someone else on behalf of Director Daryl G. McLaughlin. No authorization for filing an amended Administrative Complaint was obtained by Petitioner, prior to doing so, in compliance with Section 28-5.202, Florida Administrative Code. Accordingly, that "Amended Administrative Complaint" is a nullity.

   
   

4. However, on November 8, 1985, Petitioner did file a Motion for Leave to Amend, which motion attaches Petitioner's proposed Amended Administrative Complaint which is specifically marked as Exhibit Two. That Amended Administrative Complaint which was authorized by Order entered November 20, 1985, contains 2factual allegations: first, that Respondent was certified by Petitioner on a certain date and was issued a certain certificate, and, second, an allegation as to a specific event which occurred on March 6, 1984. That Amended Administrative Complaint is also dated October 11, 1985 (the same date that the unauthorized Amended Administrative Complaint was issued) and was signed personally by Director Daryl G. McLaughlin.

   
   

5. The two factual allegations contained in the "real" Amended Administrative Complaint dated October 11, 1985, are as follows:

   
   

   1. Respondent was certified by the Criminal Justice Standards and Training Commission on or about August 16, 1974 and was issued Certificate Number 02-13068.

      
      

   2. On or about March 6, 1984, Respondent pled nolo contendere to the felony of uttering a forgery before the Circuit Court of the Fourteenth Judicial Circuit of Florida.

      
      

6. As to paragraph numbered one, Petitioner offered no evidence to show that Respondent is a certificate holder and, therefore, has failed to prove its jurisdiction over Respondent in this disciplinary proceeding which is penal in nature. Although Petitioner argues that Respondent did not dispute this allegation when he filed his Election of Rights form directed to the Administrative Complaint filed in this cause, Petitioner's argument is without merit, legally and logically, since that Administrative Complaint failed to contain any allegation that

   Respondent was certified by Petitioner. Petitioner's jurisdiction over Respondent has, therefore, been neither admitted nor proven.

   
   

7. As to paragraph numbered two, no evidence was offered as to proceedings before the Circuit Court of the Fourteenth Judicial Circuit of Florida, as alleged. The best interpretation of the evidence presented by Petitioner is that someone who uses the names Earl Cole and Robert E. Cole, who may or may not be a certified law enforcement officer or a correctional officer in the State of Florida, plead nolo contendere to uttering a forgery, which may or may not be a felony, on March 6, 1984, in the Fifteenth Judicial Circuit but not in the Fourteenth Judicial Circuit as alleged.

   
   

8. Although the Amended Administrative Complaint charges that Respondent has violated Sections 943.1395(5) and 943.13(4), Florida Statutes it fails to allege which version of Section 943.13(4), Florida Statutes, Respondent is charged with violating which in turn makes it impossible to determine if that version of that statute can form the basis for proving a violation of Section 943.1395(5), Florida Statutes.

Accordingly, Petitioner has failed to prove any of the allegations contained in the Amended Administrative Complaint filed herein.

RECOMMENDED

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

RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint filed herein with prejudice.

DONE and RECOMMENDED this 18th day of December, 1985, at Tallahassee, Florida.

LINDA M. RIGOT, 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 18th day of December, 1985.

APPENDIX

1. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as not being supported by any evidence.

3. Petitioner's proposed findings of fact numbered 3 and 4 have been rejected as being contrary to the evidence regarding the date and as being not supported by any evidence regarding the felony nature of the crimes.

4. Petitioner's proposed finding of fact numbered 5 has been adopted in substance.

5. Petitioner's proposed finding of fact numbered 6 has been rejected as being immaterial in that the allegations in the Administrative Complaint and the allegations in the Amended Administrative Complaint are totally unrelated. Even if Petitioner's proposed finding of fact numbered 6 were true, which it is not, it would be immaterial.

6. Petitioner's proposed finding of fact numbered 7 has been rejected as being not supported by the evidence and as being immaterial to any allegations contained in the Amended Administrative Complaint.

COPIES FURNISHED:

Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302

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

Earl L. Cole

916 N.W. 4th Street

Boynton Beach, Florida 33435

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. DOAH CASE NO.: 85-1140

CJSTC CASE NO.: L-0004

EARL L. COLE,

Certificate Number 02-13086

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public hearing on July 25, 1986, in Gulf Breeze, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein.

Respondent was neither present nor represented by counsel

Upon a complete review of the transcript of record of the hearing held on November 26, 1985, in Pompano Beach, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated December 18, 1985, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed thereto, (which are attached hereto and incorporated by reference) the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number: 02-13086, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 17 day of November, 1986.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

WALTER C. HEINRICH, SHERIFF CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to EARL L. COLE, 916 North West 14th Street, Boynton Beach, Florida 33435, by U.S. Mail on or before 5:00 P.M., this 17 day of November 1986.

RON CASWELL

cc: All Counsel of Record

Docket for Case No: 85-001140

Orders for Case No: 85-001140