STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-3823

)

JOE H. TOOLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Amended Notice of Hearing furnished to the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Chipley, Florida, on June 9, 1986. The issue for consideration was whether Respondent's certification as a law- enforcement officer in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Department of Law Enforcement Post Office Box 148 Tallahassee, Florida 3230

For Respondent: Gene "Hal" Johnson, Esquire

223 West College Avenue Tallahassee, Florida 3230

BACKGROUND INFORMATION

On September 25, 1985, Daryl G. McLaughlin, Director, Division of Criminal Justice Standards and Training for the Department of Law Enforcement, filed an Administrative Complaint in this case against the Respondent, Joe H. Toole, alleging that on December 3, 1983, the Respondent unlawfully obtained property of the Chipley TG&Y Store, which indicates that he does not have good moral character as required by Section 943.13(7), and Section 943.1395(5), Florida Statutes. Respondent thereafter

filed an Election of Rights form in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. On October 31, 1985, the file was forwarded to the Director of the Division who referred the case to the undersigned for hearing. The case was originally set for March 10, 1986, but upon Petitioner's Motion for Continuance filed prior to the hearing, a continuance was granted, and the case was set for June 9 and held as scheduled. At the hearing, Petitioner presented the testimony of Charles S. Casey, a police officer in Chipley, Florida, at the time in question; Robert P. Worton, the manager of the Chipley TG&Y Store, and Lee A. Kelly and Richard I. Willsey, both store employees. Respondent testified in his own behalf and presented the testimony of Virgil

Q. Mayo, an attorney and long-time friend of Respondent; John E.

Carter, school teacher and long-time friend of Respondent; Kelly

1. Brock, Superintendent of Schools and long-time friend; and Henry A. Faircloth, a Lieutenant at the Apalachee Correctional Institute; and Respondent's present supervisor. Respondent also introduced Respondent's Exhibits 1 through 4.

   
   

   Subsequent to the hearing, both Petitioner and Respondent submitted proposed Recommended Orders which contain Proposed Findings Of Fact. Both proposals were thoroughly considered and evaluated in the preparation of this Recommended Order and the disposition of each proposed Finding Of Fact is contained in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the Administrative Complaint filed herein, the Respondent was certified by the Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (C.J.S.T.C.), as a law enforcement officer. He was certified by C.J.S.T.C. on July 1, 1981, and issued Certificate No. 05-84-599-01.

      
      

   2. On December 3, 1983, Respondent was employed as a correctional officer at the Apalachee Correctional Institution (ACI), and has held this position for eight years.

      
      

   3. on the evening of December 3, 1983, Officer Toole was observed in the shopping parking lot of the TG&Y Shopping Center in Chipley, Florida, by police officer, Charles Casey. At approximately 11:59 P.M., Casey noticed a vehicle at the corner of the TG&Y building at the west end of the parking lot. Since the facility was closed and had been closed since 9:00 P.M., the parking lot was empty except for this vehicle. The store outside lights were off as was the store sign, but some inside lights were on for security.

   4. Mr. Casey went up to the vehicle in question, a blue Ford Escort Stationwagon, where he observed Respondent taking items from the back of the store and placing them into the wagon. Respondent was the only individual present other than Officer Casey, and Officer Casey recognized him from prior acquaintance. Casey asked Respondent what he was doing, and Respondent indicated that he was getting some trees.

      
      

   5. Casey got up out of his car and walked over to the Respondent's car. He could see that the trees in question were fruit trees, five to six feet tall, which had a plastic bag over. the balled root. Casey observed a large number of trees of this type up against the outside wall of the store without any security fence around them and he was satisfied that the trees in the Respondent's car had come from the group against the wall.

      
      

   6. Casey asked Respondent if he had permission to take the trees and Respondent said yes. He indicated that he had talked to the manager previously who had said that he could take them. When Casey asked Respondent for the manager's name, Respondent could not give it to him.

      
      

   7. When Respondent was unable to provide the manager's name, Officer Casey took the six or seven trees from the Respondent's car and placed them in the patrol car. He then told Respondent to follow him to the police station so that they could call the manager to verify that Respondent had permission to take the trees. All during this period, Respondent was very polite and cooperative and complied with every one of Casey's requests.

      
      

   8. Respondent followed Casey to the Sheriff's Office in his own car. During the ride, Casey had called into the dispatcher by radio and asked him to contact the TG&Y manager to verify that Respondent had permission to take the trees. Before they even arrived at the police station, however, the dispatcher radioed back that he had contacted the manager and was advised that no one had permission to take the trees.

      
      

   9. When the parties arrived at the police station, Casey asked Respondent to come inside. He advised Respondent that the manager had denied giving him permission and therefore that he, Respondent, would be arrested. Respondent then indicated he was not stealing the trees. He stated his work hours were such that he could not get to the store during its open hours and he was going to pay for the trees the next day. According to Casey, Respondent also said that Casey should let him go because they were fellow officers.

      
      

   10. The trees in question were subsequently taken into the police department for evidence storage but were subsequently

       returned to the TG&Y Store on December 9, 1983. An arrest report was filed regarding this incident.

       
       

   11. According to the manager, several of the trees were damaged while they were in the custody of either the Respondent or the police. There were between six and eight trees in question and valued at between $6 and $8 each. Respondent did not have permission to take the trees without paying for them in advance.

       
       

   12. Respondent has a good reputation for honesty and integrity among those who have known him for many years and have dealt with him as a police officer over the years. Virgil Q. Mayo, an attorney and public defender for the Fourteenth Judicial Circuit since 1963, has known Respondent since long before that time and dealt with him frequently when Respondent was a deputy sheriff. He has also met with others who know the Respondent and is aware that Respondent's general reputation for honesty and integrity in the community is excellent. He also has a good reputation for fairness and respect for the law. In fact, according to Mr. Mayo, Respondent's sense of justice and fairness for the system is remarkable. His ingrained respect for the system and honesty is excellent. Even knowing of the incident in question, he considers that it is a mistake and that Respondent is not a thief.

       
       

   13. Similar sentiments were expressed by Mr. Carter, a school teacher and county commissioner who has known Respondent for approximately 30 to 35 years. He, too, recalls that Respondent's general reputation in the community for honesty and integrity is good. Mr. Carter is not aware of the incident in question, but, he indicates it would be hard for him to believe that Respondent could be involve in something like this.

       
       

   14. The incumbent Superintendent of Schools, Mr. Brock, has known Respondent since the late 1950's or early 1960's, although over the last few years, their contact has been limited. He knows Respondent's general reputation for honesty and integrity in the community to be the highest. As to his fairness and respect for the law, this too has always been good. Mr. Brock has no knowledge of the incident in question, but assuming the allegation were true, it would really surprise him. Mr. Brock admits that if the incident here were proven to be an intentional theft, it might change some people's opinion of the Respondent. But, Mr. Brock feels that people would look at the circumstances and while the Respondent's reputation would be lowered, it might well not be lowered down to the degree where it could be classified as "poor".

   15. Respondent's supervisor at ACI, Mr. Faircloth, has

       known the Respondent for approximately four or five years, and has daily contact with him. Mr. Faircloth participates in the evaluation process of the Respondent which involves meeting with other supervisors in discussion about him. Respondent's reputation for honesty and integrity at the worksite is very good. His reputation for fairness and respect for the law is high

       
       

   16. Respondent told him about the incident at the time it happened, but it has in no way affected his job performance. Respondent has lived in Chipley all his life. He is 47 years old, has a high school diploma, and has been employed at ACI for the past eight years as a Correctional Officer I. He has been in law enforcement work for 21 years, and prior to working at ACI, was with the Chipley Police Department and the County Sheriff's Office. He has never been disciplined or suspended, either as a law enforcement officer or as a corrections officer. His evaluations generally are outstanding. His rating for the 14 months ending November 30, 1985, was achieves standards. For the

       12 months prior to that, it was outstanding and for the 12 months preceding that, also outstanding.

       
       

   17. Mr. Toole made his supervisors aware of this incident immediately, but no disciplinary action was taken because of it. While Mr. Toole agrees that Officer Casey's description of the accident is accurate, he contends that he had no unlawful intent to take the trees on the evening in question. He thought he had permission to take them. He knows now that he made a mistake and has paid the price for it. He wants to just get this whole situation over and get on with his life because he does not feel that his misconduct here, if such it is characterized, has in any way affected his performance as a corrections officer.

       
       

   18. In addition to the live testimony of the witnesses identified above, numerous other individuals submitted letters in support of the Respondent, all testifying to his high moral character, honesty and integrity. These testimonials come from Carl Max Wells, Commissioner District IX, Washington County; Dr. James B. Craven, a physician in Chipley; Marie Mitchell, Supervisor of Elections for Washington County; H. Guy Green, attorney in Marianna; Ralph A. Jones, Principal of Roulhac Middle School in Chipley; and Representative Sam Mitchell, a member of the Florida House of Representatives.

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   20. In the Administrative Complaint, Petitioner has alleged that by being involved in the unlawful taking of the trees in question, Respondent has demonstrated that he no longer is of good moral character, one of the qualifications for employment as a law enforcement officer as outlined in Section 943.13(7), Florida Statutes (1983), which provides that

       
       

       . . . any person employed or appointed as a (law enforcement or) corrections officer shall . . . (7) Have a good moral character as determined by investigation under procedures established by the Commission.

       
       

       Once it has been established that Respondent fails to have the good moral character required for appointment, the provisions of Section 943.145(3), provide that grounds for revocation or suspension of a certificate shall include failure of the certificate holder to maintain qualifications established in Section 943.13 or specific standards promulgated thereunder as rules.

       
       

   21. The above cited provisions of the Florida Statutes are not the exact numbered provisions as cited in the Administrative Complaint. It is obvious, however, that the drafter of the Administrative Complaint referred to the 1985 statute in the drafting of the complaint. It was apparently overlooked that the incident in question took place in 1983, prior to the passage of the 1985 Act. It is clear, however, that this is a scrivener's error and not a material variation. The conduct complained of, if established, constitutes an absence of the proper moral character, and a violation of the 1983 provision. Respondent could not have been mislead thereby, and the citing of the wrong statutory provision does not defeat the effectiveness and legality of the action if otherwise appropriate.

       
       

   22. At the close of the Petitioner's case, the Respondent moved for a directed verdict on the basis that the Administrative Complaint, at paragraph 3, refers to Section 943.13(7), Florida Statutes, which requires a background investigation. Respondent contends that since there was no background investigation prior to the Administrative Complaint, the statutory requirement for investigation was incomplete. It is obvious, however, that Respondent is misapplying the terms and intention of the statute. The background investigation clearly is required prior to initial appointment or certification of a law enforcement or corrections officer. The operative words in the section cited are not those relating to the background investigation but to the requirement for good moral character, and it was clearly the intent of the Legislature to make the absence of good moral character, as established by clear and convincing evidence subsequent to

       appointment or certification, a basis for disciplinary action of a licensed or certified officer. It is for this reason that the Respondent's Motion for a Directed Verdict was denied.

       
       

   23. Respondent also attempted to draw a parallel, through the testimony of Mr. Mayo, of the situation involving an individual who inadvertently walks out of a store during store operating hours without paying for an isolated item and the current situation involving Respondent. Clearly the two are not subject to comparison. It is an entirely different situation to walk out of an open store with store employees present without paying for one item than to remove items from the stock of a closed store at night with no store employees present as was shown here. It is clear that if Mr. Toole clearly intended to take the merchandise it is unfortunate for him that he was apprehended prior to being able to pay for the items the following day as he indicated he was going to do. However, his protestations of innocence are somewhat overshadowed by the fact that at the time he was apprehended by Mr. Casey, he lied in indicating that he had permission to take the trees. In short, the evidence clearly shows that Mr. Toole intended to take the trees in question without paying for them and this action on his part constitutes, at least at the time, a lack of good moral character within the meaning of Section 943.137.

   24. Since revocation is a permissible action here, this administrative proceeding is penal in nature and the Petitioner is required to prove~its charge by clear and convincing evidence. Bowling vs. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

       
       

   25. Petitioner has proved that at the time in question Mr. Toole was guilty of an incident which tends to establish a lack of good moral character. On the other hand, however, numerous substantial citizens within the community who have known Respondent for a long time are convinced, and there is no evidence to the contrary, that this incident is a one-time, isolated incident. Further, the testimony of his superior and his evaluation reports over several years clearly demonstrate that Mr. Toole is a highly competent and qualified corrections officer. Consequently, the severity of his misconduct on the demonstrated occasion is offset to a degree by his long years of trouble free and conscientious service.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore

RECOMMENDED that:

Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated.

RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986.

COPIES FURNISHED:

Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement

P. O. Box 1489 Tallahassee, FL 32302

Gene "Hal" Johnson, Esq.

233 W. College Avenue Tallahassee, FL 32301

Robert R. Dempsey Executive Director

Department of Law Enforcement

1. O. Box 1489 Tallahassee, FL 32302

   
   

   APPENDIX

   
   

   The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

   
   

   RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER

   
   

   1. Rejected as irrelevant to the issues of fact.

      
      

   2. Incorporated in Finding of Fact 1. 3-4. Incorporated in Finding of Fact 3.

5. Incorporated in Finding of Fact 4. 6-7. Incorporated in Finding of Fact 6.

1. Incorporated in Finding of Fact 7,

   
   

2. Incorporated in Finding of Facts 8 and 9. 10-11. Incorporated in Finding of Fact 10.

12. Incorporated in Finding of Fact 11.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT

1. Incorporated in Finding of Fact 1.

2-7. Incorporated in Finding of Fact 16.

1. Incorporated in Finding of Facts 3 and 4.

   
   

2. Incorporated in Finding of Fact 6.

10-11. Incorporated in Finding of Facts 7 and 8.

1. Incorporated in Finding of Facts 10 and 11.

   
   

2. Rejected as contra to the weight of the evidence.

   
   

3. Incorporated in Finding of Fact 17.

   
   

4. Incorporated in Finding of Fact 16.

   
   

5. Incorporated in Finding of Facts 12-14.

   
   

6. Incorporated in Finding of Fact 15.

   
   

7. Incorporated in Finding of Facts 12-14.

   
   

8. Incorporated in Finding of Fact 15.

Docket for Case No: 85-003823

Orders for Case No: 85-003823