STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1352

)

LELAND M. LARGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 6, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

10680 N.W. 25th Street Miami, Florida 33172

STATEMENT OF THE ISSUES

Whether respondent's certification as a correctional officer should be revoked for having pled nolo contendere to a felony.

PRELIMINARY STATEMENT

By administrative complaint dated December 16, 1988, petitioner charged that respondent, a certified correctional officer, had violated the provisions of Sections 943.13(4) and 943.1395(5), Florida Statutes, by having pled nolo contendere to the felony offense of arson, and proposed to revoke his certification. Respondent filed a timely request for formal hearing which disputed the allegations of fact contained in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the appointment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, the parties offered a prehearing stipulation which was marked joint exhibit 1 and received into evidence. Respondent testified on his own behalf and called Jerry Meese, Kristine Miller, Edith Miller, Brent Taylor, Doris Carter, Edward Batcho, and Doran Porter as witnesses. Respondent's exhibits 1 and 2 were received into evidence.

The transcript of hearing was filed June 28, 1989, and the parties were granted leave until July 10, 1989, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Leland M. Large (Large), was certified by petitioner, Criminal Justice Standards and Training Commission (Commission), on July 1, 1974, and was issued certificate number A-2364. Currently, Large is employed as a correctional officer by Metropolitan Dade County, Department of Corrections and Rehabilitation (County), and has been so employed for 16 years.

   
   

2. On October 15, 1985, Large entered a plea of nolo contendere to the felony offense of arson, Section 806.01, Florida Statutes, before the Circuit Court, in and for the Eleventh Judicial Circuit of Florida. The court accepted the plea, withheld an adjudication of guilt, and placed Large on a 12-month period of probation. On May 15, 1986, the court granted a motion for early termination of Large's probation.

   
   

3. Regarding the crime with which he was charged, the proof demonstrates that in September 1985, Large owned a Toyota Corolla automobile which, because of an accident, was not road worthy. At that time, Large did not have the money to repair the car, was unable to sell it, and was having problems maintaining the payments on the vehicle. Accordingly, to relieve himself from the car payments, Large took the car to a secluded location and burned it.

   
   

4. At hearing, Large testified that although he did take the car to a secluded location with the intention of burning it, and in furtherance of such intent smashed a window in the car and poured gasoline at its rear, that the actual burning of the car was an accident. According to Large, after having poured gasoline at the rear of the car, "I got disgusted with myself and I was going to change my mind and I threw a cigarette down and that is what started the fire." Large's testimony that the burning of the car was accidental is not credited, and it is found that he did intentionally burn the subject vehicle to relieve himself of the obligation to make further payments on it.

   
   

5. To mitigate the gravamen of his offense, Large offered proof at hearing that at the time he burned the car he was an alcoholic who was not fully cognizant of his actions, but has since recovered. Regarding his rehabilitation, the proof demonstrates that following the entry of his plea of nolo contendere to the crime of arson, Large was suspended by the County for 28 days. During this period, Large was an inpatient at an alcohol rehabilitation center and successfully completed the program. Since such time, Large has remained sober and current in his financial obligations.

   
   

6. To date, Large, who is currently 38 years of age, has been employed by the County as a correctional officer for 16 years, and his annual evaluations have ranged from satisfactory to outstanding. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair, respectful of the rights of others, and otherwise of good moral character.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 943.13(1)-(20), Florida Statutes, sets forth the minimum qualifications for employment or appointment as a correctional officer. Pertinent to this case, section 943.13 provides:

   
   

   On or after October 1, 1984, any person employed or appointed as a... correctional officer... shall:

   (4) Not have been convicted of any felony.... Any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony... is not eligible for employment or appointment as an officer notwithstanding suspension of sentence or withholding of adjudication.

   
   

9. Section 943.1395, Florida Statutes, provides:

   
   

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

   
   

10. Here, the proof is unequivocal that Large pled nolo contendere to a felony after July 1, 1981, to wit: on October 15, 1985. Therefore, pursuant to the provisions of Section 943.1395(5), Florida Statutes, the Commission is obligated to revoke his certification, notwithstanding the fact that Large may currently possess the remaining qualifications for employment or appointment as a correctional officer, including that of good moral character, as mandated by Section 943.13, Florida Statutes. See e.g. McNair v. Criminal Justice Standards and Training Commission, 518 So.2d 390 (Fla. 1st DCA 1987). While Section 943.1395 was amended in 1988 to accord the Commission discretion to assess a penalty other than revocation against an officer who failed to maintain good moral character following certification, no such discretion was accorded the Commission where, as here, an officer pled nolo contendere to a felony. See Section 943.1395(6), Florida Statutes (1988).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which revokes the certification

of respondent, Leland M. Large.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July 1989.

WILLIAM J. KENDRICK

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 17th day of July, 1989.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

Respondent's proposed findings of fact are addressed as follows:

1-4. Addressed in paragraphs 1 and 6 to the extent pertinent.

5. Addressed in paragraph 5.

6-13 and 15-39. These proposed findings are not relevant to the disposition of this case, but have been addressed in paragraphs 3-5 so that respondent's position could at least be depicted.

14. Addressed in paragraph 2, otherwise rejected as not shown to be relevant.

COPIES FURNISHED:

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

James C. Casey, Esquire 10630 N.W. 25th Street Miami, Florida 33172

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302-1489

Daryl McLaughlin Executive Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-001352

Orders for Case No: 89-001352