STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD WILSON, )

)

Petitioner, )

and )

) METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 88-6449

) FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 11, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Kathryn Knieriem Estevez, Esquire,

10680 N.W. 25 Street

Miami, Florida 33172

For Respondent: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 33202

For Intervenor: Lee Kraftchick, Esquire

Assistant County Attorney, Dade County Metro Dade Center

111 N.W. 1st Street, Suite 2810 Miami, Florida 33128

STATEMENT OF THE ISSUES

At is sue in this proceeding is whether Petitioner possesses the requisite good moral character for certification as a correctional officer.

PRELIMINARY STATEMENT

The record in the instant case consists of the testimony and exhibits offered at the hearing held on April 11, 1989, as well as the generic record developed during the course of hearing on April 3-4, 1989. At the hearing held

April 11, 1989, Petitioner testified on his own behalf and called four additional witnesses. Petitioner introduced three composite documentary exhibits which were accepted into evidence. Respondent called two witnesses and offered no exhibits.

A generic record was developed because this case is one of a series of formal hearings heard on a docket which began April 3, 1989. Certain evidence, which pertains to this case as well as almost all of the other cases on the docket, was heard by Hearing Officer William J. Kendrick on April 3 and 4, 1989. This generic evidence will be considered as part of the record of this case by stipulation of the parties and by order of Hearing Officer Kendrick. The generic record consisted of the testimony of two witnesses called by the Intervenor, the testimony of one witness called by Respondent, and the testimony of two witnesses called by Petitioner. Documentary evidence was received into evidence as follows: Hearing Officer's Exhibits 1-32; Respondent's Composite Exhibit 1, and Petitioner's Exhibit 1. The only documentary exhibit not accepted into evidence was marked for identification purposes as Intervenor's Exhibit 1.

Metropolitan Dade County, Intervenor, participated in the presentation of the generic evidence on April 3 and 4, 1989, and submitted a post hearing brief in this case, but did not otherwise participate or appear at the formal hearing on April 10, 1989.

At the parties' request, a deadline was established for filing proposed findings of fact or other post hearing submissions that was more than ten days after the filing of the transcript in May. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. In June 1988, Respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, acting on a tip from local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (Metro Dade Corrections), had in its employ a number of correctional officers who were not certified, undertook a review of the employment records of Metro Dade Corrections. As a result of this review, Respondent identified 363 individuals, including Petitioner, who were employed by Metro Dade Corrections as correctional officers but who had not been certified by Respondent.

   
   

2. On August 10-11, 1988, personnel employed by Respondent visited the Metro Dade Corrections personnel office and audited the personnel file maintained by Metro Dade Corrections of each of the 363 individuals in question, including Petitioner's personnel file. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that Metro Dade Corrections had failed to apply for certification on behalf of the 363 officers.

   
   

3. Over the course of their two-day visit, employees of Respondent worked with employees of Metro Dade Corrections to complete the documentation on each file. Variously, they prepared registration forms and affidavits of compliance and assembled other missing documentation, such as birth certificate and fingerprint cards.

4. The 363 completed applications for certification were returned to Tallahassee by Respondent for processing. The vast majority of the individuals were certified; however, Respondent declined, for reasons hereinafter discussed, to certify Petitioner.

   
   

   The Pending Application

   
   

5. Petitioner has been employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (hereinafter called Metro Dade Corrections) as a correctional officer since June 24, 1985, without benefit of certification.

   
   

6. As part of the pre-employment process, Petitioner submitted to Metro Dade Corrections an affidavit dated June 24, 1985, which provides in pertinent part:

   
   

   I fully understand that, in order to qualify as a law enforcement or correctional officer, I must fully comply with the provisions of Section 943.13, Florida Statutes, as follows:

   * * *

7. Be of good moral character.

I further understand that by executing this document I am attesting that I have met the qualifications as specified. ...

1. On August 8, 1982, Petitioner was arrested by Metro Dade Police and charged with the crime of Aggravated Battery in connection with an injury sustained by one Willie Milton during the course of a shoot-out between Mr. Milton and Petitioner at Mr. Milton's home. Petitioner entered a plea of not guilty to the charges. The case against Petitioner was closed on January 4, 193, after the State Attorney dropped the charges. All records of the arrest were sealed and the arrest was expunged from the Petitioner's records by order of court of competent jurisdiction dated November 16, 1988.

   
   

2. Metro Dade Corrections, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, Metro Dade Corrections routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. At the time Petitioner began employment on June 24, 1985, Metro Dade Corrections had completed its investigation into Petitioner's background and was aware of Petitioner's prior arrest and the circumstances surrounding the arrest. Metro Dade Corrections concluded that Petitioner possessed the good moral character required for certification.

   
   

3. Fred Crawford, the Metro Dade Corrections director, executed an affidavit of compliance on June 24, 1985, that contained the following sworn statement:

   
   

   I hereby certify that I have collected, verified, and am maintaining on file evidence that the applicant has met the provisions of Section 943.13(1)-(8) and Section 943.131,

   Florida Statutes, or any rules adopted pursuant thereto.

   
   

4. There is no evidence that a complete application package for Petitioner's certification was prepared in 1985. Respondent did not receive a complete application for certification on Petitioner's behalf until August 11, 1988.

   
   

5. On August 11, 1988, Metro Dade Corrections, as the employing agency, submitted to Respondent a complete application package for certification of Petitioner as a correctional officer. This was the first application for certification submitted on Petitioner's behalf.

   
   

6. By letter dated November 7, 1988, Respondent notified Petitioner that his application for certification was denied because Petitioner did not possess the requisite good moral character for certification as a correctional officer. Respondent gave the following as its reasons for concluding that Petitioner lacked good moral character:

   
   

   You unlawfully committed an aggravated battery upon Willie Milton by shooting the said Willie Milton with a pistol firearm.

   
   

   You have unlawfully and knowingly possessed and introduced into your body cannabis.

   
   

7. There was no evidence presented at the final hearing of any possession or use of cannabis by Petitioner.

   
   

8. The incident involving Petitioner and Willie Milton occurred on August 8, 1982. On the night of the incident Petitioner was ordered to report to his work as a security officer with the Veterans Administration to work a late evening shift. Consequently, Petitioner dressed in his uniform and carried his firearm.

   
   

9. Prior to going to work, Petitioner took his two children to the grocery store to get the children food. While returning from the grocery store at approximately 11:00 P.M., Petitioner's daughter saw her mother's car at the residence of Mr. Milton. Petitioner and the mother of these two children had been divorced on February 2, 1982, but still lived in the same house for economic reasons. Petitioner and his former wife shared parental responsibility of the children.

   
   

10. Petitioner's daughter believed that a Ms. Milton lived in the house where she had seen her mother's car. The daughter mistakenly told Petitioner that a Ms. Milton lived there.

    
    

11. Petitioner needed to discuss baby-sitting arrangements for the children with his ex-wife so he parked his car on the street by the Milton house and left the children in the car while he approached the Milton house. Petitioner was carrying his firearm because he did not want to leave it in the car with the children. Petitioner did not know Mr. Milton and was not trying to cause trouble with him.

    
    

12. Petitioner approached the Milton house, knocked on the door, identified himself as Elizabeth Wilson's ex-husband, and asked to speak to her. Mr. Milton opened the front door took two or three steps away from the door and

    fired a firearm at Petitioner. Petitioner returned fire in the direction of Mr. Milton only after being shot at first by Mr. Milton. Several shots were fired by both Petitioner and Mr. Milton. Mr. Milton sustained a bullet wound to the leg during the exchange of gunfire.

    
    

13. At the time of the hearing, Petitioner was 43 years of age and had worked as a Correctional Officer since June 24, 1985. Petitioner's job performance evaluations with Metro Dade Corrections have been satisfactory or above. Petitioner has received several commendations for his service with Metro Dade Corrections. Prior to his service with Metro Dade Corrections, Petitioner served in the U.S. Army with distinction where he had a top secret security clearance. Petitioner also had a good record as a security officer for the Veterans Administration.

    
    

14. Petitioner's reputation is that she is a dependable, reliable, and trustworthy individual who possesses high moral character.

    
    

15. Following the denial of his request for certification as a correctional officer on November 7, 1988, Petitioner timely requested a formal hearing by the election of rights form he filed with Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

16. Based on the foregoing findings of fact and on the applicable decisional law, statutes, and rules, the following conclusions of law are made:

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

18. It is Petitioner's burden to prove that he is entitled to be certified by Respondent as a correctional officer. Florida Department of Transportation v.

    J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), Irvine v. Duval County Planning Commission, 466 So.2d 357 (Fla. 1st DCA 1985), Astral Liquors, Inc. v. Florida Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983).

    
    

19. Petitioner is not entitled to automatic certification under Section 120.60(2), Florida Statutes, because there was no proof that a completed application for certification was submitted on Petitioner's behalf before August 11, 1988. Respondent's letter dated November 7, 1988, denying Petitioner's application for certification was within the time parameters set by Section 120.60(2), Florida Statutes.

    
    

20. Section 943.13(7), Florida Statutes requires that a correctional officer:

    
    

    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, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of 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, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    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. The only evidence that might suggest a flaw in Petitioner's moral character relates to the exchange of gunfire with Mr. Milton. This incident does not establish that Petitioner lacks good moral character because Petitioner was acting in defense of himself after Mr. Milton fired first.

    
    

24. The Petitioner has made a prima facie showing of good moral character, which Respondent has failed to rebut or contradict.

    
    

25. The overwhelming evidence presented by this record is that Petitioner possesses all the qualifications for certification as a correctional officer, including the qualification of good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Division of

Criminal Justice standards and Training issue a Final Order which approves Petitioner's application for certification as a correctional officer.

DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989.

APPENDIX

The proposed findings of fact submitted on behalf of Petitioner, individually, are addressed as follows:

1. Addressed in paragraph 5.

2. Addressed in paragraph 6.

3. Addressed in paragraph 9.

4-5. Rejected as subordinate to the findings reached. 6-11. Addressed in paragraphs 7 and 14-18.

1. Rejected as unnecessary to the conclusion reached.

2. Rejected as recitation of witness testimony and as being subordinate to the conclusion reached.

3. Addressed in paragraph 17.

15-18. Rejected as being subordinate to the finding of paragraphs 17 and 18.

19. Addressed in paragraphs 16-17.

20-26 Rejected as being unnecessary to the conclusions reached.

27-36. Rejected as being recitation of witness testimony and not finding of fact.

37. Addressed in paragraph 14.

38-44. Rejected as being subordinate to the conclusion reached.

45-48. Addressed in paragraph 7.

49-50. Rejected as being unnecessary to result reached. 51-52. Rejected as being subordinate to the conclusion reached.

53-58. Addressed in paragraph 19, so far as relevant. 59-65. Addressed in paragraph 19, so far as relevant. 66-78. Rejected as recitation of testimony and as being subordinate to the conclusion reached

The proposed findings of fact submitted for petitioner on the generic record are addressed as follows:

1-14. Rejected as recitation of witness testimony, and not findings of fact. The matters have, however, been addressed in paragraph 7 so far as deemed necessary to the result reached.

15, 16, 18-20. Addressed in paragraphs 1-4.

17. Rejected as unnecessary to the result reached.

21. Addressed in paragraph 7, otherwise rejected as unnecessary to the result reached in a legal conclusion. 22-27. Rejected as subordinate to the conclusion reached.

28. Rejected as misleading and not supported by competent proof.

29-36. Rejected as being subordinate to the conclusion reached or not supported by competent evidence.

The proposed findings of fact submitted on behalf of Respondent are addressed as follows:

1-2. Addressed in paragraphs 11-12.

1. Addressed in paragraph 11.

2. Rejected as being unnecessary to the result reached.

5-9. Rejected as being unnecessary to the-result reached.

10. Addressed in paragraph 18.

11-17. Rejected as being contrary to the weight of the evidence.

18-24. Rejected as being unnecessary to the result reached.

1. Rejected as being based solely on hearsay evidence.

2. Addressed in paragraph 7.

3. Addressed in paragraph 5.

COPIES FURNISHED:

Kathryn Knieriem Estevez, Esquire 10680 Northwest 25th Street Miami, Florida 33172

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

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Lee Kraftchick, Esquire Assistant County Attorney in and for Dade County Metro Dade Center

111 N.W. First Street, Suite 2810 Miami, Florida 33128

Daryl McLaughlin, Executive Director Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-006449

Orders for Case No: 88-006449