STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 02-4322PL

)

AMADOR ALVAREZ, )

)

Respondent. )

________ )

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on January 16, 2003.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 13, 2001, Petitioner alleged that Respondent unlawfully made a false statement, under oath, during a law enforcement internal investigation of Respondent. The Administrative Complaint alleges that Respondent thus violated Sections 943.1395(6) and (7) and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.

At the hearing, Petitioner called five witnesses and offered into evidence two exhibits, which were both admitted.

The court reporter filed the transcript on February 27, 2003. Petitioner filed a proposed recommended order on March 10, 2003, and Respondent filed a proposed recommended order on March 12, 2003. Respondent proposed recommended order attempts to introduce new evidence and was not served on Petitioner, so it is stricken.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on July 12, 1991, by correctional certificate number 22381, and as a law enforcement officer on September 7, 1994, by law enforcement certificate number 148252. As of the time of the hearing, Respondent maintained both certificates. The Administrative Complaint seeks discipline against both certificates.

2. At the time of the alleged incident, Respondent was employed as a law enforcement officer with the North Bay Village Police Department.

3. In the early morning hours of July 22, 2000, law enforcement officers of the North Bay Village Police Department responded to a possible domestic battery call made by Anabel Rodriguez. One of the first officers to arrive at the residence of Ms. Rodriguez was Steve Brent, with his wife, who was acquainted with Ms. Rodriguez and her boyfriend, Respondent. Officer Brent found Ms. Rodriguez, who had suffered a black eye, very upset and willing to talk only to him. Although she did not identify the person who had struck her, she repeatedly asked, "how could he do this?"

4. Officer Brent walked Ms. Rodriguez to the nearby apartment of Officer Brent and his wife. Officer Brent's wife talked to Ms. Rodriguez and tried to calm her down. In the meantime, Sergeant Hatley, who had remained a short distance from Ms. Rodriguez's apartment in a backup position, observed Respondent leaving the underground parking area of

   Ms. Rodriguez's apartment complex and chatted with him briefly.

   
   

5. As soon as Sergeant Hatley learned that the victim was Ms. Rodriguez, he contacted Respondent and directed him to return to the station. Because Ms. Rodriguez had still not

   named her assailant, Sergeant Hatley directed that she too be brought to the station.

6. While at the station, Ms. Rodriguez sat with Ms. Brent alone in a report-writing room that adjoined the squad room in which Respondent was present. Although a wall separated the two rooms, the door between them was open. At one point,

   Ms. Rodriguez joined Respondent in the squad room and spoke with him. Respondent ordered Ms. Rodriguez to look at him, and he told her that her face would heal in a couple of weeks. He told her that this situation involved his job, and he reminded her that their baby, who was one-year-old at the time, required his health insurance.

7. About 15 minutes after speaking with Respondent, Ms. Rodriguez wrote her statement. Upset and hesitant, she repeatedly picked up and put down the pen. After about 20

   minutes, she completed her statement, in which she asserted that she had caused her injuries to herself. The same evening, Respondent also gave a statement in which he denied responsibility for Ms. Rodriguez's injuries.

8. The following day, the City of North Bay Village Police Department opened an internal affairs investigation concerning Respondent arising out of the events of the preceding day. During the investigation, the investigator learned that

   Respondent might have had improper contact with Ms. Rodriguez before she had given her statement.

9. After placing Respondent under oath, the investigator asked him: "OK, uh, at any time during your presence in the North Bay Village Police Department that evening [July 22], did you have any contact, and/or conversation, with Anabel?" Respondent answered, "No." Later in the interview, the investigator asked: "OK, uh, so you at [no] time you had any conversation, or did you make eye contact or anything with Anabel?" Respondent replied, "I saw her." The investigator stated, "OK." Then Respondent added: "I didn't make any verbal contact." The investigator asked: "OK, none whatsoever, no gestures or anything like that?" Respondent replied, "No." The investigator asked: "Did you at any time tell her quote, don't worry, it'll heal in a week or two end quote?" Respondent answered, "No." The investigator asked: "OK, at any time did you say quote, if you do this to me, the baby won't have any insurance, end quote, and quote you know what they do to cops in jail, end quote?" Respondent again answered, "No."

10. While under oath, Respondent repeatedly lied in response to the questions that the investigator asked him. The lies were material and interfered with an internal investigation of Respondent. Lying to protect his job and possibly his

    correctional and law enforcement certificates, Respondent failed to maintain good moral character.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

12. Under Section 837.02(1), lying under oath is a felony of the third degree. Section 943.13(7) requires that a law enforcement or correctional officer maintain good moral character. Rule 11B-27.0011(4)(a) provides that the commission of a felony offense, regardless whether prosecuted, constitutes the failure to maintain good moral character.

13. Section 943.1395(7) provides that, upon a finding that a law enforcement or correctional officer has failed to maintain good moral character, Petitioner may enter an order revoking the certificate, suspending the certificate for up to two years, placing the certificate on probation for up to two years, requiring additional training, and imposing a reprimand.

14. Rule 11B-27.005(5)(a)8 provides that, absent mitigation, the penalty for false statements in violation of Section 837.02 is revocation. There are no mitigating factors here. The false statement interfered with an internal

investigation into Respondent's conduct. Respondent repeatedly denied speaking to Ms. Rodriguez, even when asked questions that mentioned the precise statements that he had made to her in an obvious attempt to influence her not to make a truthful statement, which would name him as the perpetrator of domestic violence. Respondent failed to appear at the hearing to offer any explanation for this conduct.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificates as a law enforcement officer and as a correctional officer.

DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 14th day of March, 2003.

COPIES FURNISHED:

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Joseph S. White

Department of Law Enforcement Criminal Justice Standards and

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Amador Alvarez

910 East 36th Street Hialeah, Florida 33013

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-004322PL

Orders for Case No: 02-004322PL