STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0189

)

PATRICIA H. ROSENFELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 24, 1987, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Michael R. Fishman, Esquire

10700 Caribbean Boulevard, Suite 240

Miami, Florida 33189 BACKGROUND AND PROCEDURAL MATTERS

This case began on November 18, 1985, when an Administrative Complaint was filed against Respondent, Patricia M. Rosenfeld. Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing on December 2, 1985. The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 21, 1986. By Motion filed January 15, 1987, Petitioner sought to amend its Administrative Complaint by deleting paragraph 2(b). Such Motion was granted on January 20, 1987, and the Amended Administrative Complaint filed January 26, 1987, stands as the charging document in this cause. This document alleged that Respondent, while a sworn law enforcement officer, accepted money knowing or believing the money was the proceeds of the unlawful sale of a controlled substance with the intent to apply the funds to her own use. Thus, Petitioner claimed Respondent had failed to maintain the qualifications which require a law enforcement officer to have good moral character.

At the final hearing, Petitioner presented the testimony of the following witnesses: Carolyn Washington, Virginia Ann Woodlief, John Johnson, and Walter Murphree. Petitioner's exhibits 1 and 2 were admitted into evidence.

Respondent presented the testimony of the following witnesses: Patricia Rosenfeld, Virginia O'Regan, and Patricia M. Rosenfeld.

After the hearing, the parties were granted leave until September 18, 1987, to file proposed findings of fact and conclusions of law. These proposed findings have been carefully considered in the preparation of this Recommended Order and specific rulings on their findings of fact are included in the attached Appendix.

ISSUE

The central issue in this cause is whether the Respondent is guilty of the misconduct alleged in the Amended Administrative Complaint dated January 26, 1987, and, if so, whether her certificate should be revoked.

FINDINGS OF FACT

Based upon the stipulation of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Respondent, Patricia M. Rosenfeld, was certified by the Criminal Justice Standards and Training Commission on November 11, 1981, and was issued Certificate Number 02-29462. At all times material to this cause, Respondent was employed by the Metro-Dade Police Department.

   
   

2. During the fall of 1982, Carolyn Washington was employed as a dispatcher by the Florida City Police Department. Ms. Washington participated in the theft of some 1450 lbs. of marijuana from the evidence cellar at the Florida City Police Department. After the marijuana had been sold, Washington received a total of $20,000 (cash) as her portion of the proceeds.

   
   

3. Alice Clanton Butler was a dispatcher for the Homestead Police Department during the fall of 1982. At all times relevant to the issue in this case, Butler shared an apartment with Respondent. References to "Wendy" or "Alex" in the transcript refer to this person. Washington confided the details of the marijuana theft to her friend, Butler. Washington was allowed to store some of the proceeds from the sale at Butler's and Respondent's apartment.

   
   

4. During September, 1982, Washington agreed to loan Butler money. Washington gave Butler $2000 to keep and spend, and requested that Butler store an additional $8000. This money, all proceeds from the sale of the marijuana which had been stolen from the Florida City Police Department, was placed in a hope chest at Butler's apartment.

   
   

5. Washington entrusted Butler with the money because she considered her to be a good friend. Some time later, Respondent became aware that Butler was storing money from Washington at the apartment. Washington was asked to come over, at which time she and Butler engaged in a conversation, in Respondent's presence, as to the storage of the money and its origin.

   
   

6. On one visit to the apartment, Washington, Butler and Respondent sat at a table counting and arranging the money in stacks of $100, $50, and $20 denominations. During this incident Respondent asked Washington for a loan.

   This loan was to be used as part of a payment on a new car. Washington agreed to let Respondent use some of the money for the new car purchase. Respondent knew, however, prior to borrowing the money, the manner in which Washington had come by the funds.

   
   

7. Respondent used the money borrowed from Washington to purchase a new car. This purchase was made during the month of October, 1982.

   
   

8. Washington and Butler discussed the theft of the marijuana, as well as the identity of others who had participated in the theft, in Respondent's presence. Respondent acted as though she did not wish to become involved. The fact that one of the conspirators had purchased a Chili Shop with some of the theft proceeds was also discussed in Respondent's presence.

   
   

9. Washington and Butler fabricated a story to explain the new found financial success Washington was having. They told Respondent, Patricia Rosenfeld (Respondent's mother), and Virginia O'Regan (a friend) that Washington had received an inheritance from her grandmother's estate. Thus, Rosenfeld and O'Regan believed the estate money to be the source for the car loan.

   Respondent, however, had been present during conversations wherein the true source of the funds had been disclosed. Additionally, Respondent knew the money (cash) was being stored in her apartment.

   
   

10. Respondent did not file a police report on Butler or others involved in the theft. A memorandum filed regarding Washington alleged Washington may have been involved with cocaine. At no time did Respondent expose Washington as part of the marijuana theft group.

    
    

11. On March 23, 1983, John Johnson, an investigator for the Dade County State Attorney's Office, subpoenaed Washington for questioning. At this session Washington admitted her involvement in the marijuana theft and named others, including Butler and Respondent. Washington explained how the thefts had been arranged and that she had stored the cash proceeds with Butler.

    
    

12. Washington, Butler, and Virginia Ann Woodlief, a dispatcher at the Florida City Police Department who was a friend of Butler's and Respondent's, agreed to assist with the investigation regarding the Florida City marijuana theft. On several occasions they wore body bugs and attempted to engage Respondent in conversation. On one such occasion, Respondent told Woodlief that the cash could not be traced. Woodlief understood Respondent to be referring to the cash proceeds from the marijuana sale.

    
    

13. Washington was not prosecuted for her role in the marijuana theft. Respondent was prosecuted and acquitted.

    
    

14. On September 17, 1983, Respondent wrote a letter to the Florida Department of Law Enforcement wherein she admitted "a bad judgement (sic) call."

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The correct standard for the revocation of a license, as in the case at issue, is that the evidence must be clear and convincing. Ferris v.

    Turlington, 510 So.2d 292 (Fla. 1987). The Ferris court agreed with the district court in Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966), that:

    
    

    The power to revoke a license should be exercised with no less careful circumspection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

    
    

    This elevated standard is necessary to protect the rights and interests of the accused where the proceedings implicate the loss of livelihood. Ferris at 295.

    
    

17. Section 943.13(7), Florida Statutes, requires that all persons employed or appointed as law enforcement officers shall, among other things, "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." Section 943.1395(5), Florida Statues, states in pertinent part:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) and shall, by rule, adopt revocation of certification procedures pursuant to chapter 120.

    
    

18. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the court described what is meant by "moral character as follows:

    
    

    Moral character, as used in this statute, means 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.

    
    

    In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1987), our Florida Supreme Court said:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of 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.

    
    

19. The term "good moral character" must be interpreted and applied in the context of specific facts and within the context of the profession in question. Where the profession is one which requires public trust and confidence to function effectively, the consideration of what constitutes good moral character must be considered in light of what is reasonably expected of professionals holding positions of trust and confidence.

    
    

20. In the case at issue, Petitioner established by clear and convincing evidence that Respondent's conduct revealed a lack of good moral character. Respondent utilized the proceeds from the sale of the marijuana for her personal benefit.

    
    

21. To conclude, as Respondent asserts, that the origin of the funds was unknown or from Washington's grandmother's estate would be contrary to the proof. Respondent was present when Washington and Butler discussed the theft and its proceeds.

    
    

22. Respondent knew Washington was keeping the cash at the apartment. Respondent could have easily insisted that the funds be removed. At the least Respondent should have been suspicious as to why a bank depository would not be more appropriate than a hope chest. It would not seem reasonable that a trained law enforcement officer would allow a large amount of cash to be counted at her table without some suspicion as to its origin.

    
    

23. There can be no more basic public expectation than that those who carry out law enforcement will themselves obey the law. Respondent's conduct evidenced a lack of respect for the law and a lack of good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent's certificate number 02- 29462.

DONE and RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 15th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0189

Rulings on Petitioner's Proposed Findings of Fact:

1. Accepted. Finding of Fact, paragraph 1.

2. Accepted. Finding of Fact, paragraph 1.

3. Accepted. Finding of Fact, paragraph 2.

4. Accepted in material part in Finding of Fact, paragraph 2.

5. Accepted in material part in Finding of Fact, paragraph 2.

6. Accepted in material part in Finding of Fact, paragraph 2.

7. Accepted. Finding of Fact, paragraph 3.

8. Accepted in material part in Finding of Fact, paragraph 4.

9. Accepted. Finding of Fact, paragraph 3.

10. Accepted in material part in Finding of Fact paragraph 5.

11. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7.

12. Accepted. Finding of Fact, paragraph 5.

13. Accepted in material part in Finding of Fact, paragraph 6.

14. Accepted in material part in Finding of Fact, paragraph 6.

15. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary.

16. Paragraph 19 is accepted. Finding of Fact paragraph 6.

17. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8.

18. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car.

19. Paragraph 22 is accepted. Finding of Fact paragraph 12.

Rulings on Respondent's Proposed Findings of Fact:

1. Accepted. Finding of Fact paragraph 2.

2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5.

3. Accepted. Finding of Fact paragraph 5.

4. Accepted in material part in Finding of Fact paragraph 5. Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence.

5. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence.

6. Accepted but unnecessary since true origin of funds was known to Respondent.

   11

7. Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence.

8. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings.

9. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence.

10. Accepted in material part in Finding of Fact paragraph 13.

11. Rejected as contrary to weight of credible evidence.

12. Rejected as argumentative.

13. Rejected as argumentative.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Michael R. Fishman, Esquire 19700 Caribbean Boulevard

Suite 240

Miami, Florida 33189

Rod Caswell, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Robert R. Dempsey Executive Director Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 86-000189

Orders for Case No: 86-000189