STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0749

)

BARRY A. BOGART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on June 14, 1990 in Gainesville, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Gene "Hal" Johnson, Esquire

General Counsel

Florida Police Benevolent Association, Inc. Post Office Box 11239

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

Whether Respondent's certification as a correctional officer in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint dated January 11, 1990 and filed with the Division of Administrative Hearings on February 6, 1990, the Petitioner charges Respondent with failing to maintain the qualification for a correctional officer as set out under Section 943.13(7), Florida Statutes, which requires a correctional officer to have, and to maintain, good moral character.

In support of its charges the Petitioner presented the testimony of Martin

J. Krpan, Francina Hawkins, Peter J. Briggette and Ralph N. Holton.

Petitioner's exhibits 2 was received into evidence. Respondent testified in his own behalf and presented the testimony of Rubin L. Thomas and Alfonso Atwaters. Respondent's exhibits 1, 2 and 3 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on June 29, 1990. Upon request of the Petitioner, and agreed to by the Respondent, the time for filing the posthearing Proposed Findings of Fact and Conclusions of Law was extended and the requirement of Rule 28- 5.402, Florida Administrative Code was waived by the parties in accordance with Rule 22I-6.031(2), Florida Administrative Code. The parties timely filed their respective Proposed Findings of Fact and Conclusions of Law under the extended time frame. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this case, the Respondent was certified by the Petitioner, Criminal Justice Standards Training Commission (Commission) as a correctional officer, having been issued certificate number 14-82-502-17 on November 18, 1982.

   
   

2. Respondent is currently employed with the State Of Florida, Department of Corrections at New River Correctional Institution. The Respondent has been employed with the Department of Corrections as a correctional officer since September 10, 1982.

   
   

3. Respondent's duties and responsibilities as a correctional officer include the care, custody and control of inmates. Respondent serves as a dormitory officer at New River Correctional Institution and his duties require that he ensures the inmate dormitory runs in a smooth, trouble free fashion.

   
   

4. On January 27, 1989, while off duty, the Respondent visited the Sears department store in the Oaks Mall located in Gainesville, Florida. Although the Respondent testified that he had consumed "some" alcoholic beverage prior to visiting Sears, there was no evidence that he was under the influence of alcohol or that alcohol influenced his actions while in Sears or at any other time relevant to the incident on January 27, 1989.

   
   

5. After entering Sears, the Respondent proceeded to the hardware department carrying a large empty shopping bag bearing a "Burdine's" logo.

   
   

6. While in the hardware department, the Respondent examined several power drills. Unbeknown to the Respondent, his actions were being observed by the Sears security officers because of his somewhat suspicious actions.

   
   

7. After picking up several drills and examining them, the Respondent placed a power drill in the empty shopping bag and exited the store without paying for the drill even though his exit route carried him past five cash registers. The retail value of the drill was $79.99.

   
   

8. Sears Security Officer Martin Krpan followed Respondent into the common area of the mall and confronted him about the drill. The Respondent denied taking the drill, saying he had put it back. Krpan observed the drill in the shopping bag at this time.

9. Respondent accompanied Krpan back into Sears and an Alachua County Deputy Sheriff was called to the scene. During the period of detention prior to the arrival of the deputy sheriff, the Respondent was uncooperative and denied any involvement with removing the power drill from Sears. At this time Respondent refused to identify himself.

   
   

10. When Deputy Briggette of the Alachua County Sheriff's Department arrived on the scene Respondent identified himself and advised the deputy sheriff that he was a correctional officer with the Department of Corrections.

    
    

11. Respondent told the deputy sheriff that he had not taken the drill but that it had been placed in the shopping bag by Krpan.

    
    

12. Respondent was arrested and charged with retail theft, i.e. shoplifting, which is a misdemeanor. Respondent entered a plea of nolo contendere to the charge and paid a fine in addition to 20 hours of community service for the violation. The Court withheld adjudication of guilt and placed Respondent on 6 months probation.

    
    

13. Upon returning to work after the incident, the Respondent advised his supervisor of his arrest as required by the Department of Corrections' rules. After the Department investigated and reviewed the situation, the Respondent was disciplined by the Department by issuing him a reprimand. The only other disciplinary action taken against Respondent during his employment with the Department was an oral reprimand.

    
    

14. Except for his arrest on January 27, 1989, the Respondent has never been arrested or found guilty of any crime.

    
    

15. Since the incident, the Respondent has returned to work and has encountered no problems in the performance of his duties or dealing with the inmates. The Respondent has received "exceeds standards" on his performance appraisal for the period May 1989 through May 1990.

    
    

16. Despite the incident, the Respondent continues to enjoy a reputation of honesty, integrity and hard work at the New River Correctional Institution.

    
    

17. Respondent recognizes that his conduct on January 27, 1989 was wrong and appears to be sincerely embarrassed by the incident.

    
    

18. Not only did the Respondent admit to stealing the drill at the hearing, but the facts surrounding the incident on January 27, 1989 at Sears in the Oaks Mall located in Gainesville, Florida established that the Respondent committed petit theft (retail theft), a misdemeanor, in violation of Section 812.014(1) (d), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. One of the minimum qualifications for certification as a correctional officer as set out in Section 943.13(7), Florida Statute, is to have good moral character and, the failure to maintain good moral character is a basis for imposing one or more of the penalties enumerated under Section 943.1395(6) (a) through (d), Florida Statutes.

21. Rule 11B-27.0011(4) (b), Florida Administrative Code, defines "failure to maintain good moral character" and in pertinent part provides:

    
    

    (4) For the purpose 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 re- quired by Section 943.13(7), is defined as:

    * * *

    (b) 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 ... 812.14(1)(d)....

    
    

22. The Respondent was arrested and entered a plea of nolo contendere to the charge of retail theft of an item with a value of less than a $100.00 which is petit theft and a misdemeanor in second degree and a violation of Section 812.014(1)(d), Florida Statutes. Additionally, the facts surrounding the Respondent taking the drill from Sears constitutes petit theft, a misdemeanor in the second degree. Therefore, the Respondent has failed to maintain good moral character as that term is defined in Rule 11B-27.0011(4) (b), Florida Administrative Code.

    
    

23. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct is based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner has sustained its burden of proof that the Respondent has "failed to maintain good moral character".

RECOMMENDATION

In making the following recommendation I am aware that only in those instances where the certified officer "fails to maintain good moral character" does the Commission have the discretion to impose other penalties in lieu of revocation as required under Section 943.1395(5), Florida Statutes. Likewise, I am not unmindful of Respondent's lack of a criminal record prior to this incident, his remorse over the incident or that he still maintains a "good reputation" among his peers and superiors subsequent to the incident.

Having considered the foregoing Finding of Facts, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances, it is, therefore,

RECOMMENDED that the Commission enter a Final Order finding that Respondent, Barry A. Bogart has failed to maintain good moral character, and in accordance with Section 943.1395(6), Florida Statutes, suspend his certification as a correctional officer in the state of Florida for a period of one month and place Respondent on probation for a period of six months under the terms and conditions deemed appropriate by the Commission.

DONE and ENTERED this 6th day of August, 1990 in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 6th day of August, 1990.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant

to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. - 3. Adopted in Findings of Fact 1, 4, and 5, respectively.

4. - 10. Adopted generally in Findings of Fact 6 and 7. Otherwise rejected as not material or relevant or necessary.

11. - 13. Adopted in Finding of Fact 8.

14. Rejected as not material or relevant or necessary.

Rulings on Proposed Findings Of Fact Submitted by the Respondent

1. - 3. Adopted in Findings of Fact 1, 2 and 3, respectively.

1. First sentence adopted in Finding 4. The balance rejected as not material or relevant or necessary.

2. Rejected as not material or relevant or necessary.

3. - 7. Adopted generally in Findings of Fact 4, 5, 7, 8, 9,

10 and 11. Otherwise rejected as not material or relevant or necessary.

8. - 10. Adopted in Findings of Fact 12, 13 and 14, respectively.

1. Adopted in Findings of Fact 15 and 17.

2. Adopted in Finding of Fact 16.

Copies Furnished To:

James T. Moore Commissioner

Post Office Box 1489 Tallahassee, Florida 32302

Jeffery Long, Director Criminal Justice Standard

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Joseph S. White, Esquire Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Gene "Hal" Johnson, Esquire General Counsel

Florida Police Benevolent Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302

Docket for Case No: 90-000749

Orders for Case No: 90-000749