STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3894

)

JEFFREY S. HART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 19, 1993, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dawn P. Whitehurst, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Michael E. Dutko, Esquire

Bogenschutz & Dutko, P.A. Jefferson Bank Building, Suite 500 600 South Andrews Avenue

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

1. Whether Respondent should be found guilty of the violations alleged in Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On December 15, 1992, the Criminal Justice Standards and Training Commission (hereinafter referred to as either the "Commission" or "Petitioner") issued an Administrative Complaint alleging that Respondent had engaged in the following conduct:

2. (a) On or between February 20, 1992 and February 21, 1992, Respondent, Jeffrey S.

Hart, 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:

cocaine.

(b) On or between February 20, 1992 and February 21, 1992, Respondent, Jeffrey S. Hart, did then unlawfully and knowingly make a false report, in writing, to officials of the Fort Lauderdale Police Department regarding found property, to wit: crack cocaine, for the purpose of misleading them regarding the property that was found.

According to the Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(6),(7), 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 require that a law enforcement officer in the State of Florida have good moral character."

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On July 14, 1993, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

At the formal hearing that was conducted in this case, a total of four witnesses testified: Fort Lauderdale Police Sergeant Paul Raymond; Victor Manocchio; Fort Lauderdale Police Sergeant Charles Drago; and Respondent. In addition to the testimony of these four witnesses, a total of 2 exhibits (Petitioner's Exhibit 1 and Respondent's Exhibit 1) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. On November 22, 1993, Respondent filed a motion requesting an extension of the deadline. By order issued November 29, 1993, the Hearing Officer granted the motion and extended the deadline for the filing of post-hearing submittals to Friday, December 10, 1993.

Respondent filed a proposed recommended order at 9:05 a.m. on Monday, December 13, 1993. Respondent's proposed recommended order contains what are labelled as proposed "findings of fact." All of these proposed "findings of fact" have been accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Respondent is now, and has been since December 12, 1986, certified by the Commission as a law enforcement officer. He holds certificate number 03-83- 002-07.

2. At all times material to the instant case, Respondent was employed as a law enforcement officer with the Fort Lauderdale Police Department (hereinafter referred to as the "FTLPD").

   
   

3. In February of 1992, Respondent was the subject of a FTLPD Internal Affairs Division (hereinafter referred to as "Internal Affairs") investigation.

   
   

4. As part of the investigation, Internal Affairs personnel devised a plan to have Respondent come into possession of a woman's handbag containing, among other things, crack cocaine to see what Respondent would do under the circumstances.

   
   

5. The implementation of the plan began on the evening of February 20, 1992, when Internal Affairs Sergeant Diana Cipriani obtained a woman's clutch- type leather handbag (hereinafter referred to as the "Handbag"), which had a zipper closure, from FTLPD Sergeant Charles Drago of the Organized Crime Division's Street Narcotics Unit. Cipriani then proceeded to place the following items inside of the Handbag: three one-dollar bills; 96 cents in change; three condoms; cigarettes; a couple of business cards; some used tissues; and a capped, opaque film vial containing three or four "rocks" of crack cocaine that she had also obtained from Drago for purposes of this operation. 1/

   
   

6. After it was filled with these items, the Handbag was given to Victor Manocchio.

   
   

7. Manocchio was Cipriani's boyfriend and had volunteered to participate in the operation. 2/ He had no connection with the FTLPD. He was, and still is, a captain with the Metro Dade Fire Department.

   
   

8. The plan was for Manocchio to flag down Respondent while Respondent was on road patrol (Respondent's shift was scheduled to begin at midnight), tell Respondent that he had found the Handbag lying in the street, and then turn the Handbag over to Respondent.

   
   

9. Taking the Handbag with him and wearing a "wire," Manocchio left the FTLPD's Organized Crime Division's headquarters at approximately 10:00 or 11:00

   p.m. in an unmarked FTLPD vehicle that he was given by Internal Affairs to drive to the location of his hoped-for encounter with Respondent.

   
   

10. It was not until approximately 4:40 a.m. the following morning, February 21, 1992, however, that Manocchio met up with Respondent.

    
    

11. They crossed paths in the vicinity of North Dixie Highway and Northeast 15th Street in Fort Lauderdale, near a convenience store.

    
    

12. While driving in his patrol car in the area, Respondent noticed Manocchio motioning to him. Respondent pulled up behind Manocchio's vehicle and then exited his patrol car, with clipboard in hand, to speak with Manocchio and find out what he wanted.

    
    

13. Mannochio, who was holding the Handbag, told Respondent that he had come upon two females fighting in the street and that they had fled upon observing Manocchio's vehicle approach, but one of them, in her haste, had dropped the Handbag and not stopped to retrieve it.

    
    

14. Manocchio then gave the Handbag to Respondent.

15. Respondent made a cursory inspection of the contents of the Handbag before putting the unzippered Handbag in his patrol car. 3/

    
    

16. After obtaining additional information from Manocchio, Respondent returned to his patrol car and drove off.

    
    

17. The early morning meeting between Respondent and Manocchio lasted no more than ten minutes and it was audiotaped and videotaped by Internal Affairs personnel who were conducting undercover surveillance from two vans that were parked nearby. 4/

    
    

18. No further surveillance of Respondent was conducted, however, after the meeting ended and Respondent and Manocchio went their separate ways.

    
    

19. Shortly after departing the scene, Respondent radioed dispatch and requested an Offense/Incident Report number for the paperwork he needed to complete, pursuant to standard FTLPD procedure, to report and describe the "found property" that Manocchio had given him.

    
    

20. Offense/Incident Report No. 92-23697 was assigned.

    
    

21. Respondent jotted down the assigned number on a piece of paper.

    
    

22. At around 7:00 a.m. on February 21, 1992, following the completion of his road patrol shift, Respondent returned, in his patrol car, to the police station parking lot.

    
    

23. After parking his car, he exited the vehicle, taking with him the Handbag, and proceeded to the police station "write-up" room to complete the various forms and reports he needed to fill out as a result of what had transpired during his shift.

    
    

24. There were no Evidence Property (Receipt) forms in the "write-up" room. Respondent therefore went down the hallway to another room to get one.

    He did not take the Handbag with him. Rather, he left it in the "write-up" room unattended.

    
    

25. When he returned to the "write-up" room, Respondent closely examined the contents of the Handbag.

    
    

26. He then completed his paperwork and, following standard FTLPD procedure, turned the Handbag and its contents over to FTLPD evidence room personnel, after which he left the police station and went home in his private vehicle.

    
    

27. In the Offense/Incident Report form he filled out, Respondent wrote the following "narrative:"

    
    

    The reportee flagged this officer down to report the following. He states that as he pulled into the Majic Market he observed a W/F & B/F fighting in the street. They fled East on NE 1st Street but one of them apparently dropped a handbag. The reportee recovered it and turned it in to this officer. Inside the tan leather, zippered

    bag were 3 $1.00 bills, 3 condoms, & .96 in change. There was no I.D. A search of the area was negative for finding the owner. The purse & its contents were placed into evidence.

    
    

28. Respondent also completed a Property Report form, and an Evidence Property (Receipt) form relating to this "found property."

    
    

29. On the Property Report form, he described the "found property" as follows:

    
    

    Item #1- 1 Handbag

    tan leather zippered clutch type bag Item #2- 3-$1.00 bills .96 in change Item #3- 3 condoms

    
    

30. Respondent similarly described the "found property" on the Evidence Property (Receipt) form as follows:

    
    

    Item #1- 1 purse tan leather bag Item #2- 3 condoms

    Item #3- $3.96 in bills & change

    
    

31. None of the forms Respondent filled out made any mention of the cigarettes, business cards, tissues, or film vial with crack cocaine that Cipriani had placed in the Handbag the previous evening before the Handbag was given to Manocchio.

    
    

32. At approximately 10:00 a.m. that same morning, several hours after Respondent had left the police station, Internal Affairs personnel went to the evidence room to ascertain whether Respondent had turned in the Handbag and its contents as "found property."

    
    

33. They discovered that Respondent had turned in the Handbag, but upon emptying the contents of the Handbag they noticed that the film vial with the crack cocaine was missing.

    
    

34. Internal Affairs personnel did not search Respondent's patrol car to make sure that the film vial had not fallen out of the unzippered Handbag at some time while the Handbag was in the car, nor did they engage in any other investigative activity designed to discover the whereabouts of the film vial.

    
    

35. The FTLPD thereafter initiated disciplinary action against Respondent which led to his termination, as well as the filing of the instant Administrative Complaint.

    
    

    CONCLUSIONS OF LAW

    
    

    The Charges

    
    

36. The instant Administrative Complaint alleges that on or between February 20, 1992 and February 21, 1992, Respondent was "unlawfully and knowingly . . . in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to wit: cocaine" and that he "unlawfully and knowingly ma[d]e a false report, in writing, to

    officials of the Fort Lauderdale Police Department regarding found property, to wit: crack cocaine, for the purpose of misleading them regarding the property that was found." The Administrative Complaint further charges that, in engaging in such conduct, Respondent "violate[d] the provisions of Section 943.1395(6),(7), 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 require that a law enforcement officer in the State of Florida have good moral character."

    
    

    Pertinent Statutory Provisions

    
    

37. 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."

    
    

38. Section 943.1395(7), Florida Statutes, authorizes the Commission to revoke the certification of, and/or impose lesser penalties upon, a law enforcement officer who has failed to maintain "good moral character . . . as required by s. 943.13(7)."

    
    

    Burden of Proof

    
    

39. In those cases where revocation or suspension of a law enforcement officer's certification is sought based upon his alleged failure to maintain "good moral character," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

    Lack of "Good Moral Character" Defined

    
    

40. "Moral character" is

    
    

    not 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 person 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, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides in pertinent part as follows:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., 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 of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

       sections . . . 893.13 . . . F.S.; or

    2. 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. The unlawful and knowing possession of cocaine and the falsification of a report with the intent to mislead-- the misconduct with which Respondent has been charged in the instant case-- are unquestionably acts that, under Rule 11B-27.0011(4), Florida Administrative Code, demonstrate a lack of "good moral character."

    
    

    Sufficiency of the Evidence

    
    

43. The record evidence, however, does not clearly and convincingly establish that Respondent committed either of these alleged acts.

    
    

44. It does not "produce. . . in the mind of th[is] trier of fact a firm belief or conviction, without hesitancy," that Respondent removed the film vial from the Handbag, retained possession of it knowing that it contained cocaine and then gave false information regarding the contents of the Handbag to cover up his wrongdoing, as the Commission suggests he did.

    
    

45. While there is no question that the film vial and the cocaine it contained were not in the Handbag when Respondent turned the Handbag over to FTLPD evidence room personnel on the morning of February 21, 1992, it is not at all clear what happened to these missing items.

    
    

46. Whether they were misappropriated by Respondent, by someone else who may have had access to the Handbag, or just accidentally fell out of the Handbag, the Hearing Officer is unable to determine, based upon the evidentiary record developed in this case, with any degree of confidence.

47. The Commission presented no direct evidence that Respondent took these items from the Handbag following his encounter with Manocchio, and although the circumstantial evidence presented may lead one to suspect that he did, disciplinary action against a law enforcement officer may not be based upon the mere suspicion of wrongdoing.

    
    

48. In the absence of more compelling evidence that Respondent engaged in the misconduct alleged in the Administrative Complaint, the charges against him should be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) 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 (2) based upon such a finding, dismissing the Administrative Complaint issued against him.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of January, 1994.

STUART M. LERNER

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 11th day of January, 1994.

ENDNOTES

1/ The contents of the film vial could not be seen without removing the cap. 2/ Manocchio and Cipriani are now married.

3/ The Hearing Officer has rejected Manocchio's testimony that Respondent took the film vial out of the Handbag, removed the cap and looked inside because such testimony, particularly in light of the testimony of Sergeants Raymond and Drago who were members of the undercover surveillance team monitoring Respondent's activities during his encounter with Manocchio, is less credible than Respondent's testimony to the contrary.

4/ Neither the audiotape, nor the videotape, was offered into evidence.

COPIES FURNISHED:

Dawn P. Whitehurst, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Michael E. Dutko, Esquire Bogenschutz & Dutko, P.A. Jefferson Bank Building, Suite 500 600 South Andrews Avenue

Fort Lauderdale, Florida 33301

A. Leon Lowry, II, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire General Counsel

Florida 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 of time 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: 93-003894

Orders for Case No: 93-003894