STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-3314

)

MELVIN ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on February 10, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: James D. Martin, Esquire

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

For Respondent: H. R. Bishop, Jr., Esquire

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

In March 1997, the Criminal Justice Standards and Training

Commission filed an Administrative Complaint against Respondent alleging that he had violated the statutes regulating his conduct as a correctional officer, and Respondent timely requested an evidentiary hearing regarding the allegations contained in that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Commission presented the testimony of Elise Dillard- Gonzalez; Sonia Crespo; and Willie Lewis Floyd, Sr. The Respondent testified on his own behalf. Additionally, the Commission's Exhibits numbered 1-5 and Respondent's Exhibit numbered 1 were admitted in evidence.

Both parties filed Proposed Recommended Orders after the hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525.

2. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since

   January 29, 1993.

   
   

3. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an

   undercover prostitution sting at Southwest 8th Street and

   
   

   69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes.

4. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes.

5. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program.

6. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer.

7. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional

   
   

   Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections

   120.569 and 120.57(1), Florida Statutes.

   
   

9. Section 943.13(7), Florida Statutes, requires that correctional officers have a good moral character. Subsections

   (7) and (8) of Section 943.1395, Florida Statutes, authorize the Commission to take disciplinary action against a correctional officer who fails to maintain good moral character and authorize the Commission to adopt disciplinary guidelines by rule.

10. Respondent testified at the final hearing in this cause that although he was the driver of the car on both occasions, it was someone else in the car who propositioned the police officer on both occasions but the police arrested everyone in the car. Both police officers testified that they believed Respondent to be alone in the car, and one of them denied that everyone present

    would be arrested rather than only the person committing the crime. The arrest affidavits do not list any co-defendants, and one of the affidavits has a line drawn through the section which asks for the names of co-defendants. No testimony or documentary evidence was offered to corroborate Respondent's testimony that his friends pressured him to stop and joke with a prostitute and that even though they were all arrested for doing so, his friends were able to pressure him into doing the same thing two weeks later. Further, no testimony or documentary evidence was offered to corroborate Respondent's testimony that he was not alone in his car.

11. The Commission has met its burden of proving by clear and convincing evidence that Respondent is guilty of failing to maintain a good moral character, as alleged in the Administrative Complaint filed against him in this cause. Respondent solicited an undercover police officer to engage in prostitution, a misdemeanor. Section 796.07(4), Florida Statutes. Even after being arrested and charged with that criminal activity, he was arrested for doing the same thing two weeks later.

12. Rule 11B-27.005, Florida Administrative Code, provides disciplinary guidelines and sets forth aggravating and mitigating circumstances. Section (4) of that Rule specifies that the penalties are based upon a "single count violation," a fact not present in this case where Respondent was arrested twice for separate offenses. Section (5)(b) of that Rule specifies that

    the penalty for violating Section 796.07, Florida Statutes, is revocation of a correctional officer's certificate.

13. Section (6) of that Rule sets forth a list of factors to be considered in aggravation and mitigation of any penalty.

    In aggravation: Respondent committed the act twice. In mitigation: the misconduct was not committed in conjunction with Respondent's official duties or by virtue of his official position; the acts involved were misdemeanors which posed no danger to the public; the conduct occurred 4 1/2 years ago; Respondent has not been accused of any illegal activity since that time; Respondent realized no pecuniary benefit; no actual damage was caused by Respondent's actions; and Respondent has suffered a 10-day suspension from employment as a result of the misconduct.

14. To revoke Respondent's certification as a correctional officer for misdemeanors which occurred many years ago is unduly harsh. The passage of time without further misconduct should be given great consideration. His employer testified that he wishes to continue to employ Respondent and that Respondent is a good employee. Respondent's certification should not be revoked but should be suspended for 20 days.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent

guilty of the allegations contained in the Administrative Complaint filed against him, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days.

DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1999.

COPIES FURNISHED:

James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

H. R. Bishop, Jr., Esquire

300 East Brevard Street Tallahassee, Florida 32301

A. Leon Lowry, II, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement 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 within 15 days from the date of 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: 98-003314

Orders for Case No: 98-003314