STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KEVIN DANNUNZIO, )

)

Respondent. )

Case No. 03-1315PL

)

RECOMMENDED ORDER

Notice was provided and on June 30, 2003, at 10:00 a.m., a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Columbia County Courthouse, 145 North Hernando Street, Lake City, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?

PRELIMINARY STATEMENT

On March 8, 2002, the Administrative Complaint was brought against Respondent. On May 1, 2002, Petitioner received Respondent's election of rights contesting the substance of the Administrative Complaint in its allegations of fact and alleged violations of conduct standards.

On April 11, 2003, the case was received by the Division of Administrative Hearing and the case assigned. The hearing was noticed for the aforementioned date.

Petitioner had been notified of the hearing at the address he had provided in his election of rights. That notice was forwarded by ordinary mail and not returned. Petitioner, through its counsel, sent mail to Respondent at that address that was certified as received and signed for. Other correspondence was sent from Petitioner to Respondent by ordinary mail and not returned. By report, Petitioner's counsel, through his assistant, attempted to contact Respondent at the telephone number listed on his election of rights form and left messages for Respondent, but no reply was received to the messages. With this knowledge, the decision was made to

proceed to hearing in Respondent's absence. Neither the Respondent nor anyone in his behalf appeared during the final hearing.

Official recognition was made of Chapter 11B-27, Florida Administrative Code.

Petitioner presented Scott Tennyson and Corporal Fernando Zargoza as its witnesses. Petitioner's Exhibits numbered one through four were admitted.

A hearing transcript was prepared. It was filed July 22, 2003. Petitioner filed a proposed recommended order which was considered in preparing the recommended order. All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions.

2. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its

   Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms.

3. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond.

4. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then

   criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution.

5. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1).

7. This case involves the intent to impose discipline against the correctional certificate held by Respondent based upon allegations that Respondent violated statutes and rules that regulate his performance as a corrections officer. For that reason, Petitioner bears the burden to prove the allegations by clear and convincing evidence. Ferris v.

   Turlington, 510 So. 2d 292 (Fla 1987); and Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996). The term clear and convincing evidence is defined in Slomowitz v. Walker, 429 So.

   2d 797 (Fla. 4th DCA 1983).

   
   

8. The accusations that formed the basis for discipline concern the obtaining or use of the property, the guitar and gig bag, from Guitar Renters, with the intent to temporarily or permanently deprive that owner of the right to the property and appropriate the property to Respondent's own use. The proof was clear and convincing and the facts reflect the alleged misconduct by Respondent.

9. Further, Respondent is said to have violated provisions within Section 812.014 or any lesser included offense as made applicable to Respondent under Section 943.1395(6) and/or 943.1395(7) and/or Rule 11B-27.0011(4)(a), Florida Administrative Code. These acts are also alleged to prove that Respondent failed to maintain the qualifications necessary to continue as a corrections officer as required by Section 943.13(7).

10. If the violations are found, Petitioner seeks to impose discipline consistent with the disciplinary guidelines set forth in Rule 11B-27.005, Florida Administrative Code.

11. Section 943.1395(6) calls upon Petitioner to revoke the certificate of Respondent if he is not in compliance with provisions set forth in Section 943.13(4). The latter provision is in association with the need for Respondent to maintain minimum qualifications for employment as a corrections officer, in that he not have been convicted of any felony or misdemeanor involving perjury or a false statement.

12. Here the Administrative Complaint refers to the felony of theft as described in Section 812.014(1) and (2)(c) pertaining to property valued at $300.00 or more. This is grand theft of the third degree, and a felony of the third degree punishable as provided in Sections 775.082, 775.083 or 775.084, not a crime related to perjury or a false statement. Therefore, Respondent did not violate Section 943.1395(6) for not being in compliance with Section 943.13(4).

13. Alternatively, Petitioner prosecutes Respondent for the alleged violation of Section 943.1395(7) related to the necessity to maintain good moral character. According to the statute, the definition of good moral character shall be adopted by rule and established as a state wide standard. The definition of good moral character has been adopted in Rule 11B- 27.0011, Florida Administrative Code. In addition, good moral character in this context is as required by Section 943.13(7).

    The latter provision refers to the need for good moral character when employed in corrections as determined by a background investigation under procedures established by Petitioner. If the violation of Section 943.1395(7) is established, Respondent can be subjected to penalties to include revocation, suspension of his certificate for a period not to exceed two years, probation, additional training and reprimand, or a combination of those penalties.

14. In this case, the alleged failure of good moral character by Respondent is in association with Rule 11B- 27.0011(4)(a), Florida Administrative Code, which addresses perpetration by a corrections officer of an act that would constitute a felony, whether criminally prosecuted or not. Under that provision within the rule, if the violation were shown, Petitioner would be authorized to impose discipline as described in Section 943.1395(7).

15. Based upon the facts found, there was clear and convincing evidence that Respondent committed grand theft of the third degree, a felony of the third degree, in his knowingly obtaining and using the guitar and gig bag of Guitar Renters with the intent to permanently deprive that owner of the right to the property as contemplated in Section 812.014(1) and (2)(c). This violation subjects Respondent to the penalties set forth in Section 943.1395(7).

16. To arrive at the appropriate penalty, resort is made to Rule 11B-27.005, Florida Administrative Code, setting forth disciplinary guidelines for the violation. In particular, 11B-27.005(5)(a)3, Florida Administrative Code, speaks to disciplinary guidelines for grand theft, Section 812.014. The guidelines call for revocation absent mitigation. Mitigating evidence was not presented.

RECOMMENDATION

Upon consideration of the facts found and Conclusions of Law reached, it is

RECOMMENDED:

That a Final Order be entered revoking Respondent's correctional certificate.

DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 20th day of August, 2003.

COPIES FURNISHED:

Kevin Dannunzio 1718 Spring Street

Lake City, Florida 32025

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Criminal Justice Standards and

Training Commission 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: 03-001315PL

Orders for Case No: 03-001315PL