STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4586

)

TANGELA DORSETT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on December 19, 1990, in Fort Lauderdale, Florida, and April 23, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elsa Whitehurst, Esquire

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

For Respondent: Tangela Dorsett, pro se

2610 Fletcher Court

Hollywood, Florida 33020 STATEMENT OF THE ISSUE

The issue in this matter is whether the certificate held by Ms. Dorsett should be revoked, suspended, or otherwise disciplined for shoplifting, which the Department contends shows absence of the good moral character required to maintain a certificate.

PRELIMINARY STATEMENT

The Criminal Justice Standards and Training Commission (Commission) filed this Administrative Complaint seeking to discipline the certificate held by Tangela Dorsett, a detention deputy with the Broward County Sheriff's Office, for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, through shoplifting.

Transcripts of the proceedings were filed by May 2, 1991. Upon application of the Commission, the time for filing a Recommended Order was extended until July 19, 1991. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order. Certain exhibits were filed after the first hearing adjourned. These include a copy of the County Court file in the criminal

proceeding filed against her in Dade County, a copy of the exhibit list in that case, and a letter dated January 24, 1991, from Ms. Dorsett's lawyer in the criminal case, Larry Handfield.

FINDINGS OF FACT

1. Facts found by stipulation.

   
   

   1. Tangela Dorsett is certified by the Commission as a correctional officer for the Broward County Sheriff's Office.

      
      

   2. Ms. Dorsett's aunt, Vernell Williams, is deceased.

      
      

   3. Ms. Dorsett shopped at the Eckerd's Drug Store located at 17811 Biscayne Boulevard in Dade County, Florida, (Eckerd Store) on May 5, 1989.

      
      

2. Findings of Facts based upon the hearing.

1. Vernell Williams was a cashier employed at the Eckerd store on Friday, May 5, 1989. Ms. Dorsett went to that store with her 5-year-old daughter that day.

   
   

2. Carol Videlman and Anne Moore, plainclothes security officers for the Eckerd store, observed Ms. Dorsett in the store that day. Both Videlman and Moore saw Ms. Dorsett with Vernell Williams in an aisle of the store. Ms. Dorsett was carrying a blue shopping basket with several items in it, and had paid for a prescription in the rear of the store. The security officers saw Ms. Dorsett approach the check out station of Vernell Williams, who motioned to Ms. Dorsett to back off when she noticed that the security officers were watching. Williams took the blue basket with Ms. Dorsett's items and placed them on the floor by the counter, and Ms. Dorsett left the store. This aroused the suspicion of the security officers.

   
   

3. About 20 minutes later, Ms. Dorsett came back to the store. She was observed by the same security officers and by their supervisor, Raymond Rodas. She dropped off a roll of film and paid for a box of laundry detergent at Vernell Williams' register. Vernell Williams gave her a receipt for the detergent but also bagged and gave her the items Ms. Dorsett had dropped of at her first visit to the store. Ms. Dorsett did not pay for those items. Ms. Dorsett left the store with two bags in her arms. Mr. Rodas stopped her outside the store and asked her for her receipt. Ms. Dorsett did produce a receipt for a prescription purchase, but no receipt for the other merchandise which she had, which included aspirin, Tylenol, cosmetic items, soap, toothpaste, deodorant, laundry detergent and a kiddie pool. She was unable to locate the receipt for the detergent because it had been folded up in the bills she had received as change. The merchandise had a value of between 50 and 90 dollars.

   
   

4. Rodas saw the badge of Ms. Dorsett while she was looking for her receipt in her purse.

   
   

5. Ms. Dorsett had originally agreed to follow Rodas back into the store, and she identified Vernell Williams as the employee who rang up her purchases. As Rodas was checking Williams' register detail tape for proof of payment for the purchases, Ms. Dorsett took her bags and exited because she had an appointment to have her hair done, and Mr. Rodas was taking too long. Mr. Rodas followed, and called to her but she did not respond. He was able to take down her auto tag number. Vernell Williams admitted to Rodas that she had assisted

   Ms. Dorsett in a bagging the items for her without ringing them up. She made a similar statement to investigators of the Broward County Sheriff's Office, Commission Exhibit 2.

   
   

6. Mr. Rodas reported the matter to the Dade County Sheriff. It was investigated soon thereafter by the Internal Affairs office of the Broward County Sheriff's Office. After that investigation, Ms. Dorsett was suspended without pay on May 15, 1989, and was dismissed from employment on July 13, 1989.

   
   

7. The matter led to prosecution of Ms. Dorsett in the County Court for Dade County, State v. Dorsett, Case 89-66938. In a non-jury proceeding held on July 31, 1989, she was found not guilty by the County Judge.

   
   

8. Ms. Dorsett maintains that she had presented two register receipts at the County Court proceeding which led to the dismissal of the charges, but that after that case was concluded, she disposed of them in the belief that she had no further need of them. Between the first and second hearing dates for this case, an effort was made to determine whether the evidence was still in the County Court's file. The evidence had been returned to Ms. Dorsett's attorney and to Eckerd Drug Store. No transcript of that proceeding was made.

   
   

9. Based upon the testimony of all the witnesses including those who attended the County Court trial, I find that the register tapes which were presented at the County Court trial were 1)the detail tape from Vernell Williams' cash register, which was offered by the prosecution for the purpose of showing that the items in the possession of Ms. Dorsett had not been rung up by Ms. Williams; 2)Ms. Dorsett's receipt for the prescription; and 3)Ms. Dorsett's receipt for the laundry soap which she bought during her second visit to the store.

   
   

10. Following the County Court's finding that Ms. Dorsett was not guilty of criminal conduct, she was reinstated by the Broward County Sheriff's Office in September, 1989.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. The statements of Vernell Williams are admissible as admissions against penal interest made by a person now unavailable to testify. Section 90.804(2)(c), Florida Statutes. They were made as part of an investigation by the Broward County Sheriff's Office and the statements are trustworthy. Ehrhardt, Florida Evidence (2d ed.) at Section 804.4 (1989 Supp.).

    
    

13. The minimum qualifications which law enforcement officers must possess in order to receive certification from the Commission include that they:

    
    

    have a good moral character as determined by a background investigation under procedures established by the Commission. Section 943.13(7), Florida Statutes.

    
    

    The requirement to be of good moral character survives initial certification, for certificate holders may be disciplined under Section 943.1395(5), Florida Statutes, if they are "not in compliance with the provisions of Section 943.13(1) through (10)."

14. The Commission has adopted a definition of "good moral character" in Rule 11B-27.0011(4), Florida Administrative Code, which applies in disciplinary proceedings. Under the rule the failure to maintain good moral character includes

    
    

    (b)the perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, prosecuted or not. Sections . . . 812.014(2)(d), Florida Statutes.

    
    

15. Section 812.04(2)(d) prohibits petit theft, i.e., theft of things having a value of less than $200, and classifies the offense as a second degree misdemeanor.

    
    

16. The Commission's evidence is clear and convincing that with the exception of the prescription and the laundry detergent, the items that Ms. Dorsett carried out of the store were ones she had not paid for. Ms. Williams had waved Ms. Dorsett off the first time she was in the store when she saw the store detectives watching them, placed the items near her counter, and bagged them for Ms. Dorsett, who was able to take them when she returned and bought the laundry soap. The facts taken as a whole indicate that this activity was planned. This is not a situation where a person, through inadvertence, walked out of a store with a small item and simply forgot to pay for it.

    
    

17. The acquittal in the criminal case has no bearing on this matter. For whatever reason, the county judge believed that the State had not proved its case beyond a reasonable doubt. A lower standard of proof, clear and convincing evidence, applies here.

    
    

18. Counsel for the Commission has argued that Ms. Dorsett's certification should be revoked. Although her misconduct was serious, revocation is too severe. The disciplinary guidelines enacted by the Commission in Rule 11B- 27.005, Florida Administrative Code, set the penalty range for misdemeanors described in Rule 11B-27.0011(4)(b) as "from probation to revocation." Rule

    11B-27.005(3)(b), Florida Administrative Code. This range borders on the useless because it encompasses virtually the entire continuum of penalties, and offers scant guidance either to the Hearing Officer or to the Commission about an appropriate penalty. It does, at least, exclude a reprimand. Cf. Clark v. Department of Professional Regulation, 463 So.2d 328, 336 (Fla. 5th DCA 1985) (Upchurch, J. concurring and dissenting) (finding Board of Medicine penalty guidelines unhelpful.)

    
    

19. The factors set out in Rule 11B-27.005(4), Florida Administrative Code, which are mitigating or aggravating circumstances are useful in determining where the penalty should fall within the broad range available. There is no indication Ms. Dorsett used her official authority to facilitate the misconduct or performed the misconduct while she was on duty. Rule 11B- 27.005(4)(a) and (b). At the time, she was not under any probation or other limitation on her employment. Rule 11B-27.005(4)(c). A single violation was alleged and proven. Rule 11B-27.005(4)(e). No prior disciplinary actions against her were proven. Rule 11B-27.005(4)(f). The misconduct, while serious, is not severe; it was a misdemeanor, not a felony, no natural person was harmed, and the value of the property involved is small, less than $100. Rule 11B- 27.005(4)(g). No danger to the public was involved. Rule 11B-27.005(4)(h).

    The violation is about two years old. Rule 11B-27.005(4)(i). The deterrent

    effect of any penalty would be slight here. No evidence shows that this case would serve as an example to anyone else. Rule 11B-27.005(4)(l). The penalty to be imposed could have a severe affect upon Ms. Dorsett's livelihood and her ability to support her daughter. She was already suspended without pay by the Broward Sheriff's Office when she was arrested and terminated from her employment on July 13, 1989, as the result of the charge, although after her acquittal on July 31, 1989, she was reinstated by the Broward County Sheriff's Office on September 19, 1989. While the agreement/general release she signed with Broward County Sheriff's Office reinstated her with all benefits which should have accrued during her suspension, she still had a substantial period where she did not have income: from July 13 to September 19, 1989. In effect, she was suspended for just over 60 days pending the outcome of the criminal proceeding. Rule 11B-27.005(4)(n). The benefit or self gain was discussed in

    (g) above, and was small. Rule 11B-27.005(4)(p).

    
    

20. Taking all these factors together, two years probation is the appropriate penalty. Revocation is much too severe. A suspension is inappropriate since Ms. Dorsett was, functionally, already suspended for 60 days by the Broward County Sheriff's Office. The period of probation will ensure that she will not engage in any similar misconduct, since discipline for misconduct arising during the probationary period would be an aggravating factor under Rule 12B-27.005(4)(m) concerning rehabilitation, (4)(o), concerning penalties imposed for other misconduct and (4)(q), concerning the officer's compliance with the terms and condition of any Commission-ordered probation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Commission finding Ms. Dorsett guilty of shoplifting as alleged in the Administrative Complaint, but due to the small value of the items involved, and the previous action of the Broward County Sheriff's Office, her certification should not be suspended or revoked, but she should be placed on probation for a period of 2 years.

RECOMMENDED this 26th day of July, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 26th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4586

Rulings on the proposed findings of fact made by the Commission:

1. Adopted in Findings 3 and 4.

2. Adopted in Finding 2.

3. Adopted in Finding 4.

4. Adopted in Finding 5.

5. Adopted in Finding 5.

6. Adopted in Finding 5.

7. Adopted in Finding 5.

8. Adopted in Finding 6.

9. Adopted in Finding 6.

10. Adopted in Finding 6.

11. Adopted in Finding 7.

12. Adopted in Finding 6.

13. Adopted in Finding 8.

14. Adopted in Finding 8.

15. Adopted in Finding 8.

16. Adopted in Finding 8.

Rulings on the proposed findings of fact made by Ms. Dorsett, treating the paragraphs in her proposed findings as if they had been numbered:

1. Adopted in Finding 10.

2. Rejected as unnecessary.

3. Rejected as unnecessary.

4. (1)The statements by Vernell Williams are admissable. See, Conclusion of Law.

   1. Rejected as unnecessary.

   2. Rejected because the security agents where Eckerd Drugs do not have the authority to detain people.

   3. Rejected as unnecessary.

   4. Rejected for the reasons stated in Finding 12.

COPIES FURNISHED:

Elsa Whitehurst, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Tangela Dorsett, pro se 2610 Fletcher Court

Hollywood, FL 33020

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489 Tallahassee, FL 32302

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

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004586

Orders for Case No: 90-004586