STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-7052

)

BETTY L. MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 30, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Elsa Lopez Whitehurst, Esquire

Department of Law Enforcement Post Office Box 1 Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

10680 Northwest 25th Street Suite 100

Miami, Florida 33172 STATEMENT OF THE ISSUE

The issue in this cause is whether Respondent's certification as a correctional officer should be revoked, or otherwise disciplined, for failure to maintain qualifications.

PRELIMINARY STATEMENT

On June 9, 1989, Petitioner filed an Administrative Complaint against Respondent seeking to take disciplinary action for Respondent's failure to maintain qualifications, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. This cause was thereafter referred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner presented the testimony of Hector Angel Rocafort. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence.

Respondent testified on her own behalf and presented the testimony of Ann Vendrell; Gustavis Martin, Jr.; and McArthur Jones. Additionally, Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified as a correctional officer by the Criminal Justice Standards and Training Commission on February 13, 1987, and was issued certificate number 19-86-502- 05.

   
   

2. Respondent is employed as a correctional officer by Metro-Dade Department of Corrections and Rehabilitation and has been so employed since June, 1986. Respondent's current assignment is at the Metro-Dade County Women's Detention Center, Miami, Florida, where she works in different correctional capacities.

   
   

3. Respondent was born on March 18, 1956, and attended junior and senior high school in Miami, Florida. She then attended Miami-Dade Junior College on a two-year scholarship, earning an A.A. degree in criminology. She then attended Florida State University in Tallahassee, Florida, earning a Bachelor's degree in criminology.

   
   

4. During high school Respondent lost the tips of three fingers on her right hand, as a result of an accident in the factory where she worked.

   
   

5. Respondent worked for the Clerk of the Courts, Dade County, Florida, from 1979-1986. At first, she worked in the Clerk's Office itself. She was subsequently assigned to work as a courtroom clerk in the misdemeanor division, and later moved up to working as a courtroom clerk in the felony division.

   
   

6. Hector A. Rocafort, a polygraph examiner with the Metro-Dade

   Department of Corrections and Rehabilitation, administered a polygraph pre- test to Respondent on November 5, 1985. The pre-test involves a discussion/interview between Rocafort and the person being examined prior to the time that the polygraph examination itself is administered. Rocafort made notes of his interpretation of the discussion between Respondent and him. Those notes were never shown to Respondent.

   
   

7. Respondent was never advised that any statements made by her to Rocafort could or would be used against her in an administrative forum. The statements subsequently attributed to Respondent, as reported by Rocafort, are not verbatim statements; rather, Rocafort paraphrased statements made by Respondent to him. The statements allegedly made by Respondent were not sworn to by Respondent, and the written interpretation subsequently made a part of her personnel file by Rocafort were not sworn to by him.

   
   

8. During the pre-test, Respondent was encouraged to disclose any conduct that was even questionable in her mind, and Rocafort explained legal ramifications to her. For example, he explained that taking items home from work, shoplifting, and petit theft were all the same thing. When a specific dimension of the pre-test format called for time periods or the number of times that conduct was engaged in, Respondent was asked to indicate a time frame or number with which she would feel comfortable. Rocafort explained that the

   methodology used is to have the examinee make pre-test disclosures in their worst light so that when the actual polygraph examination is administered, he can ask the question "Other than what we have already discussed, have you ever .

   . . ." That way, the examinee does not have to worry about exact numbers or dates or questionable incidents during the examination and can comfortably answer the polygraph examination questions so as to produce accurate readings. Accordingly, the number of occasions indicated or the time periods indicated during the pre-test need not be accurate. According to Rocafort, Respondent did very well on the actual polygraph examination.

   
   

9. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to being arrested and charged with petit theft in 1977.

   
   

10. In 1977 Respondent, while attending Florida State University, was in a Woolco Department Store in Tallahassee with another lady she knew. Respondent's companion took off the pair of old "thongs" which she was wearing and put on a new pair of "thongs" which the store had for sale. The "thongs" had a retail value of $1.99. She left the store without paying for them.

    
    

11. A Woolco security guard called Respondent and her companion back to the store. Respondent returned to the store, but her companion did not, having gone elsewhere in the mall. Since Respondent had been with the person who committed the theft, the security guard called the police, and Respondent was charged with petit theft.

    
    

12. She was taken to jail and brought before a judge the next morning. When she appeared in court, she had no attorney, was scared, and was alone. The judge explained to her that if she pled guilty, she would be required to serve 24 hours of community service. Since she was afraid of what else could happen to her if she did not plead guilty, she entered a plea of guilty and was required to perform 24 hours of community service. She performed her community service at the Salvation Army's nursery and worked there for more than the 24 hours required, working there during the evenings when she had spare time.

    
    

13. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to purchasing stolen goods on four occasions, the last time being 1980 when she allegedly purchased a pair of sneakers for $5.00.

    
    

14. Respondent purchased items from street vendors several times throughout her life, a common occurrence or "way of life" in her neighborhood. In approximately 1980, while Respondent was working in a restaurant with her mother a man came into the restaurant selling canvas

    sneakers. Respondent's sister wanted to purchase a pair, so Respondent gave her the $5.00 she needed to buy a pair of sneakers from the vendor. Currently, similar sneakers can be purchased retail for $5.99. Similarly, Respondent purchased undershirts for her baby son when Respondent was 15 years of age.

    
    

15. Respondent never considered the fact that the sneakers or the undershirts might have been stolen until Rocafort suggested to her during the pre-test on November 5, 1985, that items bought from street vendors could be stolen property.

    
    

16. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to shoplifting ten times, the last time being five years earlier. Respondent has never shoplifted.

17. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to using marijuana approximately five times, the last time being two years earlier.

    
    

18. Respondent took a single puff from a marijuana cigarette at a party while she was in the 9th or 10th grade, at the age of 15 or 16.

    
    

19. Respondent involuntarily took a single puff from a marijuana cigarette, at the insistence of a man she was dating in 1982 or 1983.

    
    

20. Respondent has no recollection of puffing a marijuana cigarette other than on those two occasions.

    
    

21. Respondent took a pre-employment physical examination on April 10, 1986, at Cedars of Lebanon Hospital, part of which was a urinalysis in which Respondent proved negative for all drugs tested, including marijuana.

    
    

22. Respondent took an annual employment physical on March 14, 1990, at Mount Sinai Hospital, part of which was a urinalysis. Respondent proved negative for all drugs tested, including marijuana.

    
    

23. Metro-Dade Department of Corrections and Rehabilitation considers, in determining whether an applicant's prior use of controlled substances should be a bar to employment, the severity and frequency of the usage and the lapse of time between the usage and the applicant's employment. If the usage is not severe or frequent and one year has passed between the last usage and the employment application date, then the usage is not considered proximate in time and prior use will not be a bar to employment but will simply be considered along with all of the other factors considered as a result of the background investigation of an applicant.

    
    

24. During the November 5, 1985, polygraph pre-test Respondent allegedly admitted to taking minor office supplies totalling approximately $10.00.

    
    

25. Respondent, while working as a courtroom clerk for the Clerk of the Courts, Dade County, Florida, was issued pens, pencils, "Wite out", and manila folders to use at her job. When Respondent "used up" the supplies issued to her or if someone took them off her desk in the courtroom, she would have to submit a written request for a replacement. Accordingly, Respondent often took these supplies home to safeguard them and generally brought them back to the job the next day, but may have forgotten on occassion.

    
    

26. The polygraph examination, the pre-test, the physical examination, and a background investigation are required to be conducted by the employing agency prior to certification of a correctional officer by Petitioner. By virtue of the fact that Respondent was certified by Petitioner on February 13, 1987, she was determined at that time by Petitioner to be of good moral character up to that date. All allegations of misconduct made by Petitioner in this cause involve dates prior to the date that Petitioner concluded that Respondent had good moral character.

    
    

27. Respondent is considered, by reputation, to be honest beyond reproach, to possess integrity, and to be of good moral character. She is an outstanding employee, and has the respect of her supervisors. As one supervisor testified, "She can work with me any time."

    
    

28. Respondent possesses, and has maintained, good moral character.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

30. The Administrative Complaint filed in this cause charges Respondent with violating the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4) (a), (b), and (d), Florida Administrative Code, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, based upon the following factual allegations:

    
    

    1. On or about dates in 1983, Respondent, Betty Martin, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance, named or described in Section 893.03, Florida Statutes, to wit: cannabis and did introduce the said substance into her body.

    2. On or about dates in 1980, Respondent, Betty Martin, did then unlawfully traffic in or did endeavor to traffic in property which the Respondent knew or should have known was stolen property.

    3. On or about dates between 1977 and 1980, Respondent, Betty Martin, did then unlawfully engage in shoplifting by

       committing approximately ten acts of petit theft.

       
       

31. Section 943.13(7), Florida Statutes, provides that one of the minimum qualifications for a correctional officer is that such employee "Has a good moral character as determined by a background investigation under procedures established by the Commission." There is no allegation that Respondent's employing agency failed to conduct a background investigation under procedures established by Petitioner. Rather, the Administrative Complaint alleges that Respondent failed to maintain good moral character. There is no allegation that Respondent engaged in conduct evidencing lack of good moral character subsequent to the date of certification by Petitioner, i.e.,

    February 13, 1987. All conduct of which Petitioner complains pre-dates the determination made by Petitioner prior to certifying her that Respondent has good moral character. On this basis alone, the Administrative Complaint should be dismissed.

    
    

32. Section 943.1395(5), Florida Statutes, provides that Petitioner shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13 and sets forth certain standards for any investigation and probable cause determination. As such, that section regulates the conduct of Petitioner, not the conduct of Respondent.

    
    

33. Section 943.1395(6), Florida Statutes, provides, in part, as follows:

    
    

    Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s.

    943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification . .

    
    

34. Rule 11B-27.0011 defines moral character and provides in Subsections (a), (b), and (d), which are the subsections alleged in the Administrative Complaint, as follows:

    
    

    1. 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 felony offense, whether "criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not . . .

    * * *

    (d) The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225.

    
    

    Although not alleged in the Administrative Complaint, the rule also provides in Subsection (2) as follows:

    
    

    The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7) only to such controlled substance use.

    
    

35. There is no dispute as to whether marijuana is a controlled substance. Respondent has admitted to a single puff from a marijuana cigarette at the age of 15 or 16 and a subsequent single puff from a marijuana

    cigarette under duress in either 1982 or 1983. Respondent, accordingly, meets the standards required for employment by Metro-Dade Department of Corrections and Rehabilitation as to what it considers proximate in time.

    Petitioner has enacted no further standards defining what it considers proximate in time or remote in time. Considering the age of the Respondent at the time of her two isolated puffs and the circumstances under which they were taken, her use of marijuana must be considered too remote to impair her moral character. Further, Respondent tested negative on urinalysis tests conducted on April 10, 1986, and on March 14, 1990. Accordingly, Petitioner has failed to prove the allegations contained in subparagraph (a) of the Administrative Complaint filed in this cause. Diaz, et al., v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, DOAH Case No. 88-6422 (Final Order entered August 18, 1989).

    
    

36. Petitioner has also failed to prove, as alleged in subsection (b) of the Administrative Complaint, that Respondent did unlawfully traffic or endeavor to traffic in stolen property which Respondent knew or should have known was stolen. Respondent admits that she gave her sister $5.00 so her sister could buy a pair of canvas sneakers from a street vendor and that she purchased underwear for her infant son from a street vendor when she was 15 years of age. Since no evidence was offered that the canvas sneakers or the underwear were stolen property, it cannot be found that Respondent knew or should have known that such items were stolen.

    
    

37. Similarly, Petitioner has failed to prove the allegations contained in Subsection (c) that Respondent engaged in shoplifting between 1977 and 1980.

    No evidence was offered that Respondent did engage in shoplifting by committing approximately ten acts of petit theft, as alleged in the Administrative Complaint. Further, it has been specifically found that Respondent has never shoplifted.

    
    

38. Accordingly, Petitioner has failed to allege or prove any acts of misconduct on the part of Respondent subsequent to Petitioner's certification of Respondent as a correctional officer, which included the determination that she possesses good moral character. No allegations were made or proof offered that Respondent committed any misconduct subsequent to her date of certification to be of good moral character so that it can be concluded that she has failed to maintain good moral character. All alleged conduct was fully disclosed by Respondent prior to the certification of her as a person of good moral character and as a correctional officer. Therefore, the Administrative Complaint against Respondent should be dismissed. Even if it could be found that acts fully disclosed prior to certification can be subsequently found to be acts evidencing a failure to maintain good moral character, Petitioner has failed to prove any of the allegations contained in its Administrative Complaint regarding stolen property or shoplifting. Further, Respondent's isolated two puffs on a marijuana cigarette are too remote in time to constitute evidence of lack of good moral character. For these additional reasons, the Administrative Complaint against Respondent should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it

is,

RECOMMENDED that a Final Order be entered finding Respondent not guilty

of the allegations contained in the Administrative Complaint filed against her and dismissing the Administrative Complaint with prejudice.

DONE and ENTERED this 31st day of May, 1990, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-3, 5, 6, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed finding of fact numbered 4 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law.

   
   

3. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as being irrelevant to the issues under consideration in this cause.

   
   

4. Petitioner's proposed findings of fact numbered 11- 15 have been rejected as not being supported by the weight of the credible evidence in this cause.

   
   

5. Respondent's proposed findings of fact numbered 1-23 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Elsa Lopez Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

James C. Casey, Esquire 10680 Northwest 25th Street Suite 100

Miami, Florida 33172

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

-vs- DOAH CASE NUMBER: C-1613

CJSTC CASE NUMBER: 89-7052

BETTY L. MARTIN,

Certificate Number: 19-86-502-05,

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant the Section 120.57(1)(b)(9), F.S., at a public hearing on July 26, 1990, in Sarasota, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was present and represented by counsel at the meeting.

Upon a complete review of the transcript of the record of hearing held on March 30, 1990, in Miami, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated May 31, 1990, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed thereto, (which are attached hereto and incorporated by reference) and noting that the exception filed is stipulated to by the parties, the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

There is competent and substantial evidence to support the Commission's findings and conclusions.

IT IS THEREFORE ORDERED AND ADJUDGED:

That the Administrative Complaint issued in the cause be and hereby is DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 3rd day of October , 1990.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

MICHAEL A. BERG, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to BETTY L. MARTIN, 15945 Northwest 52nd Court, Opa Locka, Florida 33054-2071, by U.S. Mail on or before 5:00 P.M., this 3rd day of

October , 1990.

cc: All Counsel of Record

Docket for Case No: 89-007052

Orders for Case No: 89-007052