STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7320

)

ROBERT R. SYLVESTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January

6 through 8, 1993 in West Palm Beach, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John P. Booth, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jack Scarola, Esquire

Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626

West Palm Beach, Florida 33402-3626 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's certification as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint dated November 30, 1990, and as amended on November 16, 1992.

PRELIMINARY STATEMENT

On November 30, 1990, Petitioner, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to discipline the law enforcement officer certification of the Respondent, Robert R. Sylvester. Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

On September 21, 1992, Petitioner filed a Motion for Leave to Amend the Administrative Complaint. The request was granted in an Order Rescheduling Hearing dated November 16, 1992. The Amended Administrative Complaint alleges Respondent improperly disseminated criminal history records and confidential police phone rosters and addresses to an unauthorized person or persons.

According to the Amended Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(5), (6), Florida Statutes, and Rule 11B- 27.0011(4)(b) and/or (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character." At the commencement of the hearing, Petitioner announced that it was no longer contending that Respondent's conduct violated sub-paragraph b of Rule 11B-27.0011(4).

Petitioner called four witnesses to testify: Howard Lunsford, a lieutenant with the City of Delray Beach Police Department; Nancy Adams; Robert Musco, a shift watch commander with the Delray Beach Police Department; and Mary Cagle, the Division Chief of the Public Corruption Unit of the Dade County State Attorney's Office.

During the course of the hearing, Petitioner referred to a number of confidential records which were identified on the record as Exhibits A through

1. The documents were available at the hearing, but no copies of those records were provided and they were not offered into evidence. The documents were used by Petitioner's witnesses to refresh their recollection and supplement their testimony during the proceeding.

   
   

   Petitioner offered seven other exhibits into evidence. Petitioner's Exhibit 2 was a copy of the federal regulations regarding the use of FCIC/NCIC computer system. Official recognition was taken of these regulations pursuant to Section 120.61, Florida Statutes. Petitioner's Exhibit 3 was a March 30, 1989 assignment roster for the Delray Beach Police Department. Respondent objected to the exhibit on hearsay grounds. Petitioner's argument that Exhibit

   3 fell within the public records and/or business record exceptions to the hearsay rule was rejected because a proper foundation was not laid. The Exhibit was accepted as part of the investigative file complied by the Delray Beach Police Department. Respondent's hearsay objection was noted and the document was accepted in accordance with the provisions of Section 120.58(1)(a), Florida Statutes. Petitioner's Exhibit 7 was a transcript from labor arbitration proceedings involving Respondent and the City of Delray Beach. The parties stipulated that the factual issues in the labor arbitration proceeding between the Respondent and the City of Delray Beach were the same as the factual issues in this case. Only the testimony of Nancy Adams from that proceeding was offered by Petitioner. That testimony has been reviewed and considered in the preparation of this Recommended Order.

   
   

   Petitioner's Exhibit 4 was an Affidavit of Richie Grant. Respondent stipulated that the I.D. number in that Affidavit refers to Manuel Garcia and a computer search of the criminal history dissemination for that individual indicated the only request made for those records from the Delray Beach Police Department came on June 8, 1989. During the hearing, the parties also stipulated that: out-of-state criminal history information is only available through NCIC and is not available to the general public through a public records request; a response to a public records request for criminal history information is different in form than a NCIC computer print-out; the NCIC system maintains a log of all requests from the public and from law enforcement agencies for criminal history records; the general public cannot access sealed criminal

   history records, but law enforcement agencies and criminal defense attorneys can access those records in Florida in certain circumstances.

   
   

   At Petitioner's request, official recognition has been taken of Sections 943.0525, 943.053(2) and 943.054(2), Florida Statutes.

   
   

   Respondent testified on his own behalf and had eleven exhibits marked for identification. During the course of the hearing, Respondent's Exhibit 9 was withdrawn. All of Respondent's other exhibits were accepted into evidence. The hearsay contents of Respondent's Exhibits 4 through 8 and 10 and 11 were noted and the exhibits were considered in accordance with the provisions of Section 120.58(1)(a), Florida Statutes. Petitioner's Exhibit 7 was the testimony of Virginia Snyder and Vickie McNair in an unemployment compensation proceeding between Respondent and the City of Delray Beach. Petitioner's Exhibits 10 and

   11 were portions of the transcript of Respondent's labor arbitration proceeding. At Respondent's request, the testimony of John Ross Adams in volume four of that transcript and the testimony of Thomas Wooley in volume five have been reviewed and considered.

   
   

   Petitioner called Jack Downs in rebuttal.

   
   

   During a conference call prior to the hearing, Respondent made an ore tenus motion to dismiss on the grounds that Respondent had already prevailed in the labor arbitration proceedings and, consequently, Petitioner was collaterally estopped from pursuing disciplinary action against Respondent based on the same facts. Ruling on the motion was reserved pending clarification at the hearing as to the nature of the proceeding and Petitioner's involvement. No evidence was presented that Petitioner was a party to or in any way involved in the labor proceedings. Accordingly, the motion is hereby denied. See, Newberry v.

   Florida Department of Law Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991); Walley v. Florida Game and Fresh Water Fish Commission, 501 So2d 671 (Fla 1st DCA 1987).

   
   

   During the hearing, Respondent made an ore tenus motion to dismiss on the basis that the statutory standard of "good moral character" was unconstitutionally vague and ambiguous. As explained at the hearing, that motion was denied on the grounds that such preliminary relief was not available in a formal proceeding under Section 120.57, Florida Statutes. Respondent was granted leave to address this issue in his proposed recommended order. No further argument on this point was presented in the post-hearing submittals. In view of the conclusions reached herein, it is not necessary to resolve this issue. It is noted that the Florida Supreme Court has utilized the "good moral character" standard in disciplining attorneys. See, Florida Board of Bar Examiners Re: G. W. L., 364 So.2d (Fla. 1978); see also, Zemour, Inc. v.

   Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977).

   
   

   Respondent also moved ore tenus during the hearing to strike any testimony regarding the alleged delivery of confidential documents to anyone other than Virginia Snyder. Respondent argued that Petitioner's counsel made this claim in his opening statement at the hearing and should be limited to that allegation.

   Respondent pointed out that the Administrative Complaint as amended did not specify to whom the allegedly confidential documents were disseminated and this lack of specificity hindered the preparation of his defense to the charges.

   This complaint was not raised until after the hearing was underway. Consequently, this motion was denied as untimely.

   A transcript of the proceedings has been filed. Both parties have submitted proposed recommended orders. A ruling on each of Petitioner's Proposed Findings of Fact is included in the Appendix to this Recommended Order. Respondent's Proposed Recommended Order was submitted in a narrative form consisting of a mixture of factual assertions, argument and legal conclusions.

   Respondent's Proposed Recommended Order has been reviewed and considered in the preparation of this Recommended Order. However, because no separately identified proposed findings of fact are set forth in the proposal, no rulings are made in connection therewith.

   
   

   FINDINGS OF FACT

   
   

   Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

   
   

   1. At all times pertinent to this proceeding, the Respondent, Robert R. Sylvester, was certified as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission. Respondent was issued certificate number 02-14567 on August 29, 1975.

      
      

   2. At the time of the hearing in this matter, Respondent was forty-six years old. Prior to becoming a police officer, Respondent was honorably discharged from the Marine Corps after three years of service and after achieving the rank of sergeant. Respondent's unblemished record of service in the Marine Corps included twenty-three months of active duty in Viet Nam and assignment to the security forces responsible for guarding the Presidents of the United States and South Viet Nam.

      
      

   3. Respondent began working with the Delray Beach Police Department ("DBPD") in 1975. At some point in 1979, the Delray Beach Police Department hired a new police chief. As discussed in more detail below, Respondent had a long feud with the new police chief beginning in approximately mid-1980

      
      

   4. There is no evidence of any problems with Respondent's job performance at the DBPD or any dissatisfaction with his work until April or May of 1980, when Respondent and another officer were accused of using excessive force in the arrest of a shoplifter.

      
      

   5. Respondent was in line for a promotion prior to the complaint being lodged against him. The allegations against Respondent received wide publicity and, apparently as a result, Respondent was not promoted.

      
      

   6. After an investigation, the Chief of Police recommended that Respondent receive a thirty-day suspension without pay for the use of excessive force. Respondent contested the results of the investigation and was exonerated by the police department's five-man review board and by a grand jury. A federal civil rights investigation also found no basis for the charges against Respondent.

      
      

   7. Despite these findings, the City Manager imposed a 5-day suspension on Respondent. Under the existing Civil Service Rules, Respondent could not appeal that ruling.

      
      

   8. Respondent brought a civil action against the City Manager and the Chief of Police alleging that their actions in disciplining him violated his statutory, contractual and constitutional rights. A jury returned a verdict in

      favor of Respondent and awarded him $75,000 in compensatory damages and $25,000 in punitive damages.

      
      

   9. Respondent's lawsuit was appealed all the way to the Florida Supreme Court and was tied up in the courts for more than ten years. The suit was still not completely resolved at the time of the hearing in this case. During this entire time, Respondent continued to work for the DBPD.

      
      

   10. At the time of the hearing in this matter, Respondent was still a patrolman. Respondent has been passed over for promotion several times while his lawsuit has been pending against the Police Chief. He contends that throughout this period he has received unfavorable assignments and has been harassed by his supervisors.

       
       

   11. During this same time period, Respondent also became active in the police union serving as a bargaining agent and later as the president of the local organization.

       
       

   12. As a result of these matters, Respondent claims that his actions were very closely scrutinized by the DBPD and, consequently, he scrupulously tried to avoid even the appearance of impropriety in all of his actions.

       
       

   13. On November 13, 1989, the DBPD sought to terminate Respondent from employment alleging that he had improperly disseminated criminal history records and phone rosters of Delray Beach police officers to a private investigator named Virginia Snyder and/or her associate, Donald Pierce.

       
       

   14. Virginia Snyder was a former newspaper reporter in Delray Beach who subsequently started a business as a private investigator. She was a long-time and very vocal public critic of the DBPD and its chief. Donald Pierce was a former Delray Beach police officer who resigned from the police department and became a private investigator. He was associated on a part-time basis with Virginia Snyder's investigative agency. Respondent and Pierce served together as officers of the local police union. After he quit the DBPD, Pierce remained active in union affairs.

       
       

   15. Respondent successfully challenged his dismissal in a labor arbitration proceeding. He similarly prevailed in two separate unemployment compensation hearings.

       
       

   16. The only witness who claimed direct knowledge that Respondent provided confidential documents to Virginia Snyder and/or Donald Pierce was Nancy Adams. No other witness testified in this proceeding or in Respondent's labor arbitration or unemployment hearings that Respondent improperly delivered confidential documents.

       
       

   17. Respondent, Virginia Snyder and Donald Price have all disputed Ms. Adams testimony. Thus, this case boils down to whether Nancy Adams' testimony should be accepted.

       
       

   18. Nancy Adams began working for Virginia Snyder as a volunteer in Ms. Snyder's office beginning in approximately mid-May 1989. The circumstances under which Ms. Adams began working at Ms. Snyder's office are somewhat curious. Ms. Adams called Ms. Snyder inquiring about bodyguard or protective services which Ms. Snyder told her were not the types of services offered by the company. Ms. Adams then indicated that she was interested in learning the private investigation business. After much prodding by Ms. Adams, Ms. Snyder agreed to

       help her learn about the business by letting her observe what was done in the office. Ms. Adams demonstrated great eagerness and curiosity and volunteered to assist on various matters. In fact, she repeatedly offered to testify in proceedings of which she had no direct knowledge. Ms. Adams was not paid for her services.

       
       

   19. Within a week or so after she started working with Ms. Snyder, Ms. Adams began meeting with DBPD officers regarding alleged confidential information that she observed in Ms. Snyder's office. During June and July of 1989, Ms. Adams met with Sgt. Musco of the DBPD numerous times, usually a couple times a week. She provided him with documents that she claimed to have been obtained from Virginia Snyder, Donald Pierce and/or Respondent. Other than Ms. Snyder's public allegations, no evidence was presented to establish that the DBPD solicited or planted Ms. Adams in Ms. Snyder's office. Lieutenant Lunsford, who assumed responsibility for the investigation approximately two months after the meetings began between Ms. Adams and other DBPD officers and around the time the entire incident became public with a great deal of fan-fare, was very credible and forthwright. He accepted Ms. Adams statements regarding the Respondent based upon what he felt was corroborative circumstantial evidence, but candidly admitted that "I would say I'd question things that she said in general conversation, yes . . . it sometimes would take a lot to convince me about some of the things she said, yes." At the hearing in this matter Ms. Adams' testimony was often vague and sometimes contradictory and inconsistent. While some of her memory lapses can be attributed to the passage of time, the vagaries, inconsistencies and contradictions in her testimony make it difficult to decipher fact from fiction.

       
       

       NCIC/FCIC Records

       
       

   20. The National Crime Information Center (NCIC) and the Florida Crime Information Center (FCIC) maintain criminal history records that can be accessed by computer. The computer records also contain automobile registration information.

       
       

   21. Law enforcement agencies can obtain access to the NCIC/FCIC System by obtaining an appropriate computer terminal. Law enforcement personnel who utilize the computer are supposed to obtain a certification.

       
       

   22. As part of his duties with the Police Department, Respondent was trained to access NCIC/FCIC information through the NCIC/FCIC computer terminal. In order to obtain this certification, Respondent had to become familiar with the operation of the terminal and the restrictions on access to the information contained in the system. Section 943.053(2), Florida Statutes, provides that "criminal justice information derived from federal criminal justice information systems or criminal justice information systems of other states shall not be dessiminated in a manner inconsistent with the laws, regulations, or rules of the originating agency." 28 CFR Section 20.21(f)(4)(b) provides that "law enforcement agencies are required to provide that direct access to criminal history record information shall be availble only to authorized officers or employees of criminal justice agencies and, as necessary, other authorized personnel essential to proper operation of the criminal justice history record information system."

       
       

   23. As a result of his training, Respondent knew that sanctions could be imposed against a law enforcement agency for misuse of the criminal history records obtained through the computer access to the NCIC/FCIC System.

       Respondent also knew that use of the limited access information obtained over the terminal for personal gain could result in criminal prosecution.

       
       

   24. The general public can obtain access to certain information in the NCIC/FCIC System through the Public Records Act, Chapter 119, Florida Statutes. The information available under the Florida Public Records Law regarding criminal history records is different from the information available to law enforcement officers accessing those records for a criminal justice purpose. The public records access is limited to in-state criminal history records and does not include sealed criminal history records. Law enforcement officers accessing the records for a criminal justice purpose have access to both non- Florida criminal history records and sealed criminal history records.

       
       

   25. Since 1974, the Florida Department of Law Enforcement has maintained an automated data base, identified as the centralized criminal history dissemination file. This data base is comprised of records of the dissemination of Florida criminal history records from the NCIC/FCIC System as a result of both law enforcement requests and public sector requests.

       
       

   26. At the Delray Beach Police Department, the NCIC/FCIC computer terminal was located on the second floor near the police and fire dispatchers. The evidence presented in this case established that, while the door to the room was supposed to be locked, there was relatively free access to the room and computer terminal.

       
       

   27. During the spring and summer of 1989, Respondent was the only Delray Beach patrolman certified to use the NCIC/FCIC computer, but all of the dispatchers for the DBPD were certified. In addition, some officers utilized the computer even though they had not been certified. The evidence indicates that there was very little control over the dissemination of NCIC/FCIC information obtained via the computer. Some reports were distributed with little or no concern paid to protecting the security of the information.

       
       

   28. Ms. Adams contends that, during the time she was volunteering at Ms. Snyder's office, she observed that Ms. Snyder and Donald Pierce had NCIC/FCIC criminal history records on certain individuals. The evidence established that Respondent was the computer operator at the time that certain NCIC/FCIC criminal history records which later were turned over by Nancy Adams to the Delray Beach Police Department were generated. However, the evidence did not clearly establish that Respondent turned any such records over to Virginia Snyder, Donald Pierce, Nancy Adams, or any other unauthorized person.

       
       

   29. At the hearing in this case, Ms. Adams could not specifically tie Respondent to the delivery of any NCIC/FCIC records to Virginia Snyder or anyone else except in one case. She testified that the criminal records of Manuel Garcia were delivered by Respondent to Donald Pierce at a restaurant in Boca Raton. Previously, she had told Sgt. Musco of the DBPD that Manual Garcia's record was taken from Virginia Snyder's office.

       
       

   30. Ms. Adams also testified that she was told by Virginia Snyder and Donald Pierce that they regularly received NCIC/FCIC criminal history records from Respondent and that she heard Donald Pierce call Respondent and request certain NCIC/FCIC records. This testimony has been disputed by Respondent, Virginia Snyder and Donald Pierce.

       
       

   31. In her various statements, Ms. Adams has given different versions for the source of many of the documents that she turned over to the DBPD. At

       different times, the documents were alleged to have been handed to her by Respondent, given to her by Donald Pierce, removed from Virginia Snyder's office and/or Donald Pierce's truck. It is impossible to reconcile the sometimes conflicting stories on the source(s) of the documents. These inconsistencies and the questions raised regarding Ms. Adams' credibility lead to the conclusion that Petitioner has not met its burden of proof in this case. While it is conceivable that Virginia Snyder and/or Donald Pierce had some NCIC/FCIC records in their possession at certain times, it can not be concluded from the evidence produced in this case that Respondent was the source of any of those documents.

       
       

   32. There are a number of possible ways that Ms. Adams, Ms. Snyder and/or Donald Pierce could have obtained copies of NCIC/FCIC printouts. In fact, in earlier testimony Ms. Adams alluded to another alleged source that Ms. Snyder and Mr. Pierce had at the DBPD and/or the sheriff's office. While the explanations offered by Respondent as to why he requested certain criminal history records were not totally satisfactory, the evidence was not clear and convincing that Respondent turned such documents over to any unauthorized individual.

       
       

       Phone lists

       
       

   33. Ms. Adams also testified that Respondent provided Virginia Snyder with confidential phone lists of the Delray Beach police officers. The evidence established that those phone lists were widely disseminated and that Virginia Snyder had access to those lists from several sources. In fact, Ms. Snyder had copies of such lists dating back more than ten years, even though there is no evidence that Ms. Snyder had any dealings with Respondent until 1989 when Donald Pierce began doing some work for her. Thus, it appears that Ms. Snyder had a source for obtaining the phone lists long before she ever met Respondent. The evidence was not convincing that Respondent directly provided any such lists to Virginia Snyder.

       
       

   34. Respondent admits providing some phone lists to Donald Pierce in connection with Mr. Pierce's continuing involvement with the police union. Petitioner has not established that the dissemination of the phone lists to Donald Pierce was improper.

       
       

       Conclusion

       
       

   35. Respondent admits "running license tags" for Donald Pierce on the computer and verbally providing Mr. Pierce with the resulting non-confidential information. However, he denies ever providing any NCIC/FCIC criminal record printouts to Donald Pierce, Virginia Snyder or Nancy Adams.

       
       

   36. Respondent's close association with Donald Pierce and his willingness to provide him with phone lists and verbal information obtained from "running license tags" certainly raises some questions as to his judgment. In addition, Respondent did not carefully guard the confidentially of the criminal history records that he admittedly obtained. However, the evidence indicates that such information was not closely protected throughout the Department. In sum, the evidence did not clearly and convincingly establish that Respondent was lacking of good moral character.

       CONCLUSIONS OF LAW

       
       

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

       
       

   38. Section 943.1395(5), Florida Statutes, provides that the Commission "shall revoke the certification of any [law enforcement] officer who is not in compliance with the provisions of s. 943.13(1)-(10)." Subsection (6) of Section 943.1395, Florida Statutes, authorizes the imposition of certain lesser penalties in appropriate cases.

       
       

   39. Section 943.13(7), Florida Statutes, provides that any person employed or appointed as a law enforcement officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

       
       

   40. "Moral character" is

       
       

       [N]ot 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.

       
       

       Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "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." Florida Board of Bar Examiners Re: G. W. L., 364 So.2d 454, 458 (Fla. 1978).

       
       

   41. The Commission explicated its interpretation of Sections 943.13(7) and 943.1395, Florida Statutes, in Rule 11B-27.0011(4), Florida Administrative Code. In defining "good moral conduct," the Commission's Rule is consistent with the interpretation given by the Florida courts and provides in pertinent part as follows:

       
       

       (4) For purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(6) or (7), a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as:

       * * *

       (c) The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty,

       fairness or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime.

       
       

   42. To the extent that Section 943.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified law enforcement officer ". . . it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are

       any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

       
       

   43. Petitioner has the burden to prove the allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   44. The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

       
       

       We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testified must be precise and explicit and the witness must be lacking in confusion

       as to the facts and issues. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds at page 958, the following:

       
       

       "Clear and Convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases.

       
       

   45. Disciplinary action against Respondent can only be based upon the violations specifically alleged in the Amended Administrative Complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

       
       

   46. The Amended Administrative Complaint in this case alleges that on or between January 1, 1989, and August 31, 1989, Respondent "did then unlawfully provide NCIC [National Crime Information Center] and/or FCIC [Florida Crime Information Crime Center], records or information, consisting of automated criminal history record data, to a person or persons not authorized to receive such information" and "on or between March 1, 1989, and May 31, 1990, Respondent "did unlawfully provide law enforcement officer's home addresses and/or home telephone numbers to a person or persons unauthorized to receive said information." The Amended Administrative Complaint further charges that, by engaging in such conduct, Respondent violated "the provisions of Section 943.1395(5),(6), Florida Statutes [subsequently renumbered Section 943.1395(6)(7), Florida Statutes, and amended by Chapter 92-131, Laws of Florida] and Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character."

       
       

   47. The evidence presented in this case did not clearly and convincingly establish that Respondent was guilty of the violations alleged. The testimony

   of Nancy Adams was not specific enough with respect to actions by Respondent and was wrought with inconsistencies.

   
   

   RECOMMENDATION

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission

   enter a final order finding the evidence insufficient to prove that Respondent

   is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and dismissing the Administrative Complaint issued against him.

   
   

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1994.

   
   

   
   

   J. STEPHEN MENTON 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 8th day of March 1994.

   
   

   APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-6175

   
   

   As noted in the Preliminary Statement, only Petitioner submitted separately identified and numbered proposed findings of fact. The following rulings are made on the proposed findings of fact submitted by Petitioner.

   
   

   1. Adopted in substance in findings of fact 1.

   2. Adopted insubstance in findings of fact 21.

   3. Rejected as unnecessary. The subject matter is addressed in findings of fact 30.

   4. Adopted in pertinent part in findings of fact 31.

   5. Adopted in pertinent part in findings of fact 24 and 30.

   6. Rejected as unnecessary. The subject matter is addressed in findings of fact 30.

   7. Adopted in substance in findings of fact 22.

   8. Adopted in substance in findings of fact 22.

   9. Adopted in substance in findings of fact 23.

   10. Rejected as unnecessary. The subject matter is addressed in findings of fact 30.

   11. Addressed in the Preliminary Statement.

   12. Rejected as unnecessary.

   13. Rejected as unnecessary.

   14. Subordinate to findings of fact 16 and 27-30.

15-21. Subordinate to findings of fact 16 and 27-30.

COPIES FURNISHED:

John P. Booth, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jack Scarola, Esquire

Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626

West Palm Beach, Florida 33402-3626

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 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: 91-007320

Orders for Case No: 91-007320