STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1142

)

KENNETH A. STRACKMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on August 22, 1985, in Miami, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

For Petitioner: Joseph S. White

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

For Respondent: Douglas C. Hartman, Esquire

2212 Biscayne Boulevard

Miami, Florida 33137

The Criminal Justice Standards and Training Commission, Petitioner, charged that in May, 1984, Kenneth A. Strackman, Respondent, committed homosexual acts with inmates at the Dade County Stockade and that he thereby violated Section 943.1395(5) and 943.13(7), Florida Statutes, which require that a correctional officer have good moral character.

At the hearing Petitioner called five witnesses.

Respondent testified on his own behalf, called two witnesses and introduced two exhibits. Petitioner sought to introduce the results of a polygraph examination conducted by Hector A. Rocafort under Section 120.58(1)(a), Florida Statutes, as "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." Respondent's objection to the introduction of the examination results and testimony relating thereto was sustained since it did not appear from the evidence presented, or from matters which may be officially recognized, that such evidence is admissible under the above-cited provision. The parties have submitted proposed findings of fact and a ruling on each proposed finding is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto Respondent has held Certificate Number 502-3664 issued by Petitioner, and has been employed as a correctional officer at the Dade County jail since October, 1982.

   
   

2. In May, 1984, Respondent was working as a correctional officer assigned to the Dade County Stockade on the 3:00 p.m. to midnight shift. He had been assigned to the Stockade approximately one year earlier.

   
   

3. Rene Cruz was an inmate at the Dade County Stockade in May, 1984, who had attained trustee status. A trustee is given more freedom in the Stockade than other inmates and can remain outside of his cell for periods each day after other inmates are locked up. Dion Chian was also an inmate at the Stockade in May, 1984.

   
   

4. In late April or early May, 1984, inmate Chian was placed in "the hole" at the Stockade for possessing marijuana after his return from a work detail. At the same time Respondent started locking up Cruz when he came on duty at 3:00

   p.m. because he had smelled marijuana in "the hole" in an area close to Cruz. Although he never saw Cruz smoke marijuana, he considered him a trouble maker. By locking up Cruz every day, Respondent took an important privilege away from trustee Cruz.

   
   

5. Cruz testified that in late May, 1984, Respondent had oral sexual contact with an inmate in "the hole" at the Dade County Stockade. Chian confirms the incident, claiming he was the inmate involved. However, the testimony of these inmates is

   not credible. Cruz stated that the inmate involved in the incident was a black male with light skin, but Chian is a dark skinned black male. Cruz was unclear about the details of the alleged incident, including where and when it took place, the identity of the inmate involved, and the relative positions of Respondent and the other inmate during the incident. He testified that he only observed the incident in progress for "a second." Chian's testimony conflicted with that of Cruz concerning the location of the incident and also his role in the incident. Cruz testified that the inmate was having oral sex with Respondent, while Chian testified that Respondent was the active participant in the incident with him. Chian alleged that a second incident took place, but this testimony is not supported and is not credible.

   
   

6. Anthony Campos, a Police Benevolent Association (PBA) representative, testified that Respondent admitted the incident to him. However, Lou Altobelli, an elected director of the PBA, and Nelson H. Perry, President of the Dade County PBA, testified that Campos has a reputation as a "story-teller" and for not telling the truth. Perry discussed the incident involving Respondent with Campos on three occasions and Campos never told him that Respondent had admitted the allegations. In Perry's conversations with Respondent, the charges were vehemently denied by Respondent. Based upon all of the testimony presented, a finding cannot be made that Respondent admitted his participation in this incident.

   
   

7. On or about June 10, 1984, Respondent was confronted with the allegation by his superiors at the Dade County Stockade. He testified that he was initially very concerned about the negative impact and publicity that would occur if he contested the charges, especially because his father is a law enforcement officer in Dade County, and so he submitted his resignation. However the next day he withdrew his resignation, was suspended, and the matter was then turned over to the State Attorney's Office for investigation. No criminal charges were ever filed, and that investigation has been closed. Following a local hearing, Respondent has been reinstated as a correctional officer at the Dade County jail and has been assigned to the information booth.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

9. Section 943.13(7), Florida Statutes, provides that any person employed as a law enforcement officer shall have a good moral character and Section 943.1395(5), Florida Statutes, requires Petitioner to revoke the certification of any officer who is shown to lack good moral character. This proceeding is penal in nature, and Petitioner has the burden of establishing the allegations contained in the Administrative Complaint by clear and convincing evidence. State ex ref. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973); Bach v. Florida Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979; reh. den. 1980); Bowling v. Department of Insurance, 394 So. 2d 165, 173 (Fla. 1st DCA 1981).

   
   

10. Petitioner has not met its burden by the required level of proof. There is conflicting testimony about the allegations contained in the Administrative Complaint and the witnesses Cruz, Chian and Campos, called by Petitioner, are not credible. Respondent's witnesses Perry, Altobelli and Respondent himself are credible. Therefore no finding of fact has been made which would indicate a violation of the above-cited statute.

RECOMMENDATION

Based upon the foregoing, it is recommended that the charges contained in the Administrative Complaint be dismissed.

DONE and ENTERED this 17th day of December, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 17th day of December, 1985.

APPENDIX

(DOAH Case No. 85-1142)

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted and included in introductory material.

2. Adopted in Findings of Fact 2 and 3.

3. Rejected as irrelevant and unnecessary.

4. Adopted in Finding of Fact 3.

5-7 Rejected as not based on competent substantial evidence in

the record.

8-12 Rejected based on Findings of Fact 4 and 5, and otherwise not based on competent substantial evidence in the record.

1. Adopted in Finding of Fact 3.

2. Rejected as irrelevant and unnecessary.

15-22 Rejected based on Findings of Fact 4 and 5, and otherwise not based on competent substantial evidence in the

record.

23,24 Adopted in Finding of Fact 6.

25 Adopted in Finding of Fact 7.

26-29 Rejected based on Finding of Fact 6 and otherwise not based on competent substantial evidence in the record.

1. Rejected as irrelevant and unnecessary.

2. Rejected as not based on competent substantial evidence in the record.

Rulings on Respondent's Proposed Findings of Fact:

1.2 Adopted in part in Findings of Fact 3, 4, 5 but otherwise rejected as irrelevant and not based on competent substantial evidence in the record.

3-5 Adopted in part in Finding of Fact 6 but otherwise rejected as unnecessary and not based on competent substantial evidence in the record. 6 Adopted in part in Findings of Fact 1, 2, 4 but otherwise rejected as irrelevant and not based on competent substantial

evidence

in the record.

COPIES FURNISHED:

Joseph S. White

Assistant General Counsel Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Douglas C. Hartman, Esquire 2212 Biscayne Boulevard

Miami, Florida 33137

Daryl G. McLaughlin Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 85-001142

Orders for Case No: 85-001142