STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE No. 88-4547

)

GEORGE QUINONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 8, 1988, in Fort Lauderdale, Florida, before Joyous D. 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

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Richard E. Lober

Slesnick & Lober

10680 N.W. 25th Street Suite 202

Miami, Florida 33172-2108 BACKGROUND AND PROCEDURAL MATTERS

This case began on August 19, 1988, when the Criminal Justice Standards and Training Commission (Commission) filed an administrative complaint against the Respondent. This complaint alleged Respondent had violated Sections 943.1395(5) and 943.13(7), Florida Statutes, which require a law enforcement officer to have a good moral character. Specifically, the complaint alleged Respondent had unlawfully and knowingly been in actual or constructive possession of a controlled substance, cannabis. On August 29, 1988, Respondent executed an Election of Rights which denied the factual allegations and requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings for formal proceedings on September 12, 1988.

At the hearing, the Commission presented the testimony of the following witnesses: Lt. Richard Blom, Miami Police Department; and Carl Frank Matrone, police officer, City of Opa Locka. The Respondent presented the testimony of Arthur G. DeNunzio, Sr., James Robinson, and Emerenciano Soles. Respondent's exhibits numbered 1 through 3 were admitted into evidence.

The transcript was filed with the Division of Administrative Hearings on December 29, 1988. After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

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

1. The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392.

   
   

2. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department.

   
   

3. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume.

   
   

4. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow.

   
   

5. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m.

   
   

6. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area.

   
   

7. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot.

   
   

8. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place.

9. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis.

   
   

10. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department.

    
    

11. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9.

    
    

12. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake."

    
    

13. During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs.

    
    

14. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good.

    
    

15. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character.

    
    

16. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character.

    
    

17. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 943.1395(5), Florida Statutes, provides, in part:

    
    

    (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) . . .

    
    

20. Section 943.13, Florida Statutes, sets forth the minimum qualifications for certification as a law enforcement officer. Subsection (7) provides:

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

21. 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. . .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.

    
    

22. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1987), the court stated:

    
    

    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.

    
    

23. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity.

    
    

24. Rule 11B-27.0011(4), Florida Administrative Code, provides, in pertinent part:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as:

    * * *

    1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 117.03, 316.1935, 409.325,

       552.22(3), (4), (5), (6), (7), (10), 784.011,

       784.03,784.05(2),790.01(1),...893.13(1) (a)3,

       (1)(d)3, (1)(g) ,(2)(a), (2)(b), 914.22(2), 944.35(3), 944.35(7)(a), 944.37, F.S., or

    2. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty,

       fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime, or

    3. The unlawful use of any of the

    controlled substances enumerated in Rule 11B- 27.00225.

    
    

25. Cannabis is listed among the controlled substances enumerated in Rule 11B-27.00225, Florida Administrative Code.

    
    

26. Based upon the evidence presented in this case, the Commission has established Respondent was in possession of a minute amount of a controlled substance, cannabis, on November 29, 1987. This possession was an isolated incident. There is no evidence from which it could be concluded Respondent has, either prior to that incident or since, been in possession of a controlled substance. That Respondent pled nolo contendere to that criminal misdemeanor is not, of itself, sufficient to establish bad moral character.

    
    

27. There is no evidence that Respondent unlawfully used or uses any of the controlled substances enumerated in Rule 11B-27.00225, Florida Administrative Code. Further, the overwhelming evidence presented established that Respondent respects the rights of others, and is known for his honesty and integrity. Respondent's first reaction to the arrest was to express remorse. Secondly, the next day, he voluntarily resigned his position with the police department.

    
    

28. In setting the minimum qualifications for certification, the legislature specified that an applicant shall not have been convicted of any felony or of a misdemeanor involving perjury or a false statement. Section 943.13(4), Florida Statutes. Obviously, a misdemeanor conviction is not sufficient for disqualification unless it would establish bad moral character.

    
    

29. In this case, the Commission has attempted to establish, by rule, the types of misdemeanors which it deems constitute a lack of good moral character. Respondent has rebutted any presumption established by the rule by showing that he does possess good moral character. The Respondent maintained a good work record throughout his employment with the Miami Police Department. He is respected by members of his community and enjoys a reputation for honesty and integrity. While he may have made an isolated error in judgment, the evidence in this case is not clear and convincing that Respondent lacks good moral character.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent.

DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, 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 2Oth day of January, 1989.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202

Miami, Florida 33172-2108

Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Daryl McLaughlin, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-004547

Orders for Case No: 88-004547