STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4410

)

PAUL A. LAVERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer James E. Bradwell, held a public hearing in this case on February 19, 1988, in Miami, Florida. Thereafter, Petitioner's counsel requested leave to submit a proposed recommended order following receipt of the transcript of the hearing. During mid-April, 1988, Petitioner's counsel advised the undersigned that he had encountered an unanticipated delay in obtaining a transcript of the formal proceedings but that efforts were ongoing to locate the reporter who had left the court reporting service at which he was employed at the time of hearing. That reporter retained his notes, and, therefore, the service was unable to timely provide a transcript. On June 8, 1988, Petitioner's counsel advised the undersigned that the agency experienced difficulty obtaining a copy of the transcript and decided not to pursue the matter at this time. The undersigned therefore prepared a recommended order from the notes and other documentary evidence received during the course of the hearing.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Paul A. Lavery, pro se

5325 West 20th Lane Hialeah, Florida 33012

ISSUE PRESENTED

The issue presented for decision is whether or not Respondent failed to maintain the qualifications of a law enforcement officer and, if so, what penalty would be appropriate.

INTRODUCTION AND BACKGROUND

By its administrative complaint filed herein dated August 31, 1987, Petitioner seeks to revoke the law enforcement certificate issued to Respondent based on allegations that he failed to maintain the qualifications of a law enforcement officer in violation of Sections 943.1395(5) and 943.13(7), Florida Statutes. On September 19, 1987, Respondent executed an election of rights form wherein he disputed the allegations of fact contained in the administrative complaint and petitioned for a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, the matter was set for hearing and was heard on February 19, 1988, as scheduled.

The Petitioner presented the testimony of Lt. Talton B. Dunn, Jr., Sgt. David Johnson, Cpt. Jack Hardin, and Cpt. M. Leggett of the Florida Highway Patrol, and Harry J. Kendrick, a manager employed in the revocation section, Bureau of Standards, Florida Department of Law Enforcement. Respondent testified on his own behalf. Petitioner presented Exhibit 1 which was received in evidence without objection.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings.

1. Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on December 6, 1974, and was issued Certificate Number 02-12297.

   
   

2. From at least June 1982 through August 29, 1986, Respondent was employed as a trooper with the Florida Highway Patrol.

   
   

3. During late 1984, Respondent's performance came under scrutiny by Lt. Dun, who was Respondent's supervisor.

   
   

4. Lt. Dunn performed an evaluation of Respondent's performance as a trooper on December 28, 1984. Lt. Dunn used a standard appraisal form which uses a numerical evaluation with a range of 1 through 40. The highest score denotes the highest level of performance. A rating of 18 or under denotes a conditional evaluation. On Respondent's 1984 evaluation by Lt. Dunn, he earned a performance rating of 19. Based on his marginal performance, he was given a special evaluation which noted, inter alia, that he had feigned sickness and thereby had misused sick time, by using 81 hours of sick leave while he appeared to be in good health and was late turning in his weekly reports of daily activities, and specifically that Respondent used 81 hours of sick time while he appeared to be in good health.

   
   

5. Lt. Dunn gave Petitioner a special evaluation for the third time within

   60 days of his 1984 annual evaluation and at that time Respondent received a numerical rating of 17. That rating is indicative of less than satisfactory performance. At that time, Respondent had not improved in the areas found deficient during the time period when he received his 1984 annual performance evaluation and the two succeeding special evaluations. (Petitioner's Exhibit 1)

   
   

6. Sgt. David Johnson, the squad supervisor assigned to the Miami office since approximately November 1984, worked with Respondent and directly supervised him during January 1986.

7. On January 9, 1986, Sgt. Johnson and Respondent worked the same shift. Respondent's car had been moved from a shopping mall where he left it unattended for several hours. The car was ordered moved by supervisory officers in the Miami office. Respondent lived near Sgt. Johnson and phoned him to get a ride to work since his car had been moved when he left it unattended at the shopping mall. Sgt. Johnson was aware that Respondent's car had been towed before he called him seeking a ride to work. While in route to work that morning, Respondent told Sgt. Johnson that he needed professional counseling and admitted that he was addicted to drugs and alcohol.

   
   

8. Respondent was referred to the highest officer in authority at the Miami station, Cpt. Jack Hardin, for counseling. At approximately 2:45 p.m. on the afternoon of January 6, 1986, Respondent was interviewed by Cpt. Hardin. Respondent told Cpt. Hard in that he needed professional help due to his addiction to drugs and alcohol. Respondent advised Cpt. Hardin that this problem had persisted during the previous six years and that he wanted to save his job. Based on that admission, Cpt. Hardin reassigned Respondent to administrative duties. He also advised Respondent that it was necessary for him to notify Major Grayson, Unit Commander, inasmuch as use of a controlled substance, to wit, cocaine, was a felony. Based on Respondent's admission to use of a controlled substance and the other problems associated with drug addiction, Cpt. Hardin took possession of Respondent's firearm.

   
   

9. Since April 1, 1982, Cpt. M. Leggett has been the commander of the subdistrict in Miami known as Troop "E." Respondent was assigned to Troop "E" during all times material to this case.

   
   

10. On June 9, 1986, Cpt. Leggett summoned Respondent to his office for a disciplinary interview. Respondent was provided notice of the interview and was represented by legal counsel. Respondent provided a sworn oral statement after he was apprised of the purpose of the interview and the charges which had been filed against him, i.e., possession of a controlled substance in violation of the rules and regulations of law enforcement officers and a notice of the intended disciplinary action. During Respondent's sworn statement, he admitted that he had used cocaine and that use continued during the years 1982 through 1986.

    
    

11. In mitigation, Respondent stated during his interview with Cpt. Leggett that his use was "occasional" and that he would only use a gram or two at any given time. At the time of his interview, Respondent appeared to be in control of his faculties. (Testimony of Respondent and Capt. Leggett).

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action.

    
    

13. The parties were given notice pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

14. The authority of the Petitioner is derived from Chapter 943, Florida Statutes.

    
    

15. Respondent, a certified law enforcement officer, is subject to the disciplinary provisions of Chapter 943, Florida Statutes.

16. Section 943.13, Florida Statutes, sets forth the minimum qualifications for employment of, inter alia, law enforcement officers. That section provides in pertinent part that:

    
    

    On or after October 1, 1984, any person employed or appointed as a full-

    time ... law enforcement officer ... shall:

    * * *

    (7) Have a good moral character ...

    
    

17. Section 943.1395, Florida Statutes, provides in pertinent part that:

    
    

    (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.12(1)-(10) ...

    
    

18. Section 893.03, Florida Statutes, sets forth the standards and schedules for controlled substances. Cocaine is a controlled substance set forth in Section 893.03(2)4, Florida Statutes. Section 893.13(1)(f), Florida Statutes, states:

    
    

    It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained ... Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

19. Competent and substantial evidence was offered herein to establish that Respondent was in actual possession of a controlled substance in violation of Section 893.13(1)(f), Florida Statutes. As such, Respondent engaged in conduct which amounts to a felonious possession of a controlled substance; such conduct demonstrates a lack of good moral character and is therefore conduct demonstrating a failure on Respondent's part to maintain the qualifications required by a law enforcement officer as established in Section 943.13(7), Florida Statutes. Respondent therefore violated the provisions of Section 943.1395(5), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order revoking Respondent's law enforcement Certificate Number 02-12297.

DONE AND ENTERED this 26th day of September, 1988, at Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988.

COPIES FURNISHED:

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

Post Office Box 1489 Tallahassee, Florida 32302

Mr. Paul A. Lavery 5325 West 20th Lane Hialeah, Florida 33012

Rod Caswell, Director

Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, Florida 2302

Robert R. Dempsey Executive Director

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

Docket for Case No: 87-004410

Orders for Case No: 87-004410