STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

WESLEY ROLACK, )

)

Respondent. )

Case No. 03-2764PL

)

RECOMMENDED ORDER

Notice was provided and on November 18, 2003, 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 (2003). The hearing location was the Jacksonville Regional Service Center, Building B, Room 152-B, 921 North Davis Street, Jacksonville, 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 in association with his auxiliary law enforcement certificate, correctional certificate, and law enforcement certificate?

PRELIMINARY STATEMENT

On October 31, 2002, by an Administrative Complaint in Case No. 17758, Petitioner accused Respondent with:

Unlawfully knowingly obtaining or using, or endeavoring to obtain or use money, the property of another, to wit: Kings Ridge Apartment Complex, owner or custodian thereof, with the intent to temporarily or permanently deprive the owner or custodian of a right to the property, or a benefit therefrom or to appropriate the property to his own use, or to the use of any person not entitled thereto.

By this alleged conduct Respondent was accused of violating the provisions of Section 812.014, Florida Statutes, or its lesser included offenses, as contemplated by Section 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B- 27.0011(4)(a), and the failure to maintain qualifications established in Section 943.13(7), Florida Statutes, requiring Respondent in all certified capacities to maintain good moral character.

In accordance with Section 120.57(1), Florida Statutes, Respondent elected his right to contest the factual allegations in the Administrative Complaint found in paragraphs 2 and 3.

In effect, Respondent contested the material allegations and the legal consequences of those facts if proven. Respondent did not contest the allegation that he is certified in the various capacities. His election of rights was received by Petitioner on November 19, 2002.

On July 31, 2003, Petitioner requested the Division of Administrative Hearings to assign an administrative law judge to conduct a formal hearing consistent with Section 120.57(1), Florida Statutes.

The hearing was first noticed to be conducted by video- teleconference between Tallahassee and Jacksonville, Florida, on October 3, 2003. That notice was defective. As a consequence, the case was re-noticed for hearing and held on November 18, 2003, as described. Notice of the original hearing date and the second hearing date was provided to Respondent at his address, 12439 Teal Run Court, Jacksonville, Florida 32258, set forth in the election of rights. Neither of the notices provided by ordinary mail was returned as undelivered. Respondent's failure to attend the final hearing is unexplained.

At the commencement of the hearing, counsel for Petitioner requested that official recognition be made of Florida Administrative Code Chapter 11B-27, with particular emphasis on Rules 11B-27.005 and 11B-27.0011(4)(a). That request was granted. At hearing Petitioner presented Detective Robert

Michael Hyer, of the Jacksonville Sheriff's Office (JSO) as its witness. Petitioner's Composite Exhibit numbered 1 was admitted.

No hearing transcript was requested. No party submitted proposed findings of fact and orders as allowed by Section 120.57(1)(b), Florida Statutes (2003).

FINDINGS OF FACT

1. In consideration of the election of rights form, in which Respondent did not dispute the allegations within paragraph 1 to the Administrative Complaint, it is found that Respondent was certified by the Criminal Justice Standards and Training Commission on September 18, 1980, and was issued Auxiliary Law Enforcement Certificate No. 75688, and on

   April 12, 1983, Correctional Certificate No. 75687, and on December 29, 1983, was issued Law Enforcement Certificate No. 75686.

2. As an off-duty officer for the Jacksonville Sheriff's Office (JSO), Respondent was employed by Kings Ridge Apartment Complex (the apartment complex). In that capacity Respondent over-billed the apartment complex in the amount of $1,134.00 for work he did not perform. In this connection, Respondent submitted paperwork claiming payment from the apartment complex that he was not entitled to receive. Respondent had maintained activity logs indicating that he was engaged in his duties at

   the apartment complex during times that he was not located on that property.

3. An internal investigation was performed by the integrity unit of the JSO concerning Respondent's conduct. As part of the investigation Respondent was interviewed. After being advised of his constitutional rights, Respondent acknowledged his false claims for payment for work that was not done at the apartment complex.

4. On March 19, 2001, Respondent retired from his position with the JSO.

5. In response to action taken by the State Attorney for the Fourth Judicial Circuit, State of Florida, Respondent participated in a Pre-trial Intervention Program through a Deferred Prosecution Agreement which was approved by the State Attorney and Court, and signed by Respondent and his counsel. Pertinent to that agreement, Respondent was required to make restitution for the $1,134.00 received as compensation not earned. According to the investigative report by the JSO, that money was repaid to the apartment complex. In addition, in accordance with the Deferred Prosecution Agreement, Respondent by executing that agreement on May 8, 2001, had agreed to resign from the JSO and to not seek further employment by the JSO for five years. The period of deferred prosecution was one year, read to mean one year from May 23, 2001, when the presiding

   judge signed the agreement. The record does not reveal that Respondent failed in any manner to meet the requirements of the Pre-trial Intervention Program through the Deferred Prosecution Agreement.

   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), Florida Statutes (2003).

7. By this action Petitioner seeks to discipline Respondent in his capacity as an auxiliary law enforcement officer, a correctional officer, and a law enforcement officer. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's certificates. The nature of that proof must be by clear and convincing evidence. Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996); and Ferris v.

   Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

8. Although reference is made to Section 943.1395(6) in the Administrative Complaint, that law involves crimes related to perjury or false statement, false affidavits or dishonorable discharge from the armed forces of the United States. Those provisions are unassociated with the factual allegations in the

   Administrative Complaint. Therefore no violation has been established concerning Section 943.1395(6).

9. Alternatively, Respondent is accused of violating Section 943.1395(7), which allows the imposition of discipline:

   Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by a rule and is established as a statewide standard, as required by s.

   943.13(7) . . .

   
   

10. Section 943.13(7) refers to the need for an officer

    
    

    to:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

11. Further, the Administrative Complaint refers to

    
    

    violations of Florida Administrative Code Rule 11B- 27.0011(4)(a), defining moral character wherein it is stated:

    For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395 . . . (7) F.S., a certified officers' failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    1. The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

       
       

12. The Administrative Complaint in association with the felony offense refers to Section 812.014, which states:

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or a benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

    
    

    * * *

    
    

    (2)(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

    
    

    1. Valued at $300 or more, but less than

    $5,000. . . .

    
    

13. Clear and convincing evidence has been presented to prove that Respondent committed acts that would constitute a felony pursuant to Section 812.014, in relation to the $1,034.00 that he was paid from the apartment complex that he was not entitled to receive. This constitutes proof of the failure to maintain good moral character. Fla. Admin. Code R. 11B- 27.0011(4)(a).

14. Florida Administrative Code Rule 11B-27.005, contains guidelines for the imposition of penalties for the violation found. For failure to maintain good moral character in association with the facts that demonstrate Respondent acted in contravention of Section 812.014, the recommended punishment in

relation to a felony offense is revocation absent mitigating circumstances. Fla. Admin. Code R. 11B-27.005(5)(a).

Aggravating and mitigating circumstances are described in Florida Administrative Code Rule 11B-27.005(6)(a) and (b), respectively. With this in mind, the recommended punishment is revocation of all certificates.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered which revokes the auxiliary law enforcement certificate, correctional officer certificate and law enforcement officer certificate of Respondent.

DONE AND ENTERED this 11th day of December, 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 11th day of December, 2003.

COPIES FURNISHED:

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

Wesley Rolack

12439 Teal Run Court Jacksonville, Florida 32258

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: 03-002764PL

Orders for Case No: 03-002764PL