STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

TAD K. MOODY, )

)

Respondent. )

Case No. 03-3528PL

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on November 18, 2003, in Tampa, Florida.

APPEARANCES

For Petitioner: Laurie B. Binder, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by unlawfully acquiring or obtaining, or attempting to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery,

deception, or subterfuge on or about July 16, 1999; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance on or between April 1, 1999, and August 5, 1999; by corruptly using or attempting to use his official position as a law enforcement officer in such a manner as to secure a special privilege for himself or others, to wit: prepared a fictitious Offense/Incident Report as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a law enforcement officer in the State of Florida. In an Administrative Complaint dated September 13, 2001, Petitioner alleged that Respondent violated the provisions of Sections 893.13(7)(a)9. and/or 983.13(7)(a)7., 943.1395(6) and/or (7), Florida Statutes (2000), and Florida Administrative Code Rule 11B-27.0011(4)(a) and that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes (2000), which requires that law enforcement officers in the State of Florida have good moral character. Respondent filed an Election of Rights form disputing the allegations set forth in the Administrative Complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings on September 26, 2003. Following discovery, Petitioner filed a Motion to Deem

Admissions Admitted and to Relinquish Jurisdiction. Rulings on the motions were reserved until the final hearing. A formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes (2003), on November 18, 2003.

At the hearing, Respondent failed to appear at the appointed time and place. Diligent search and inquiry failed to locate Respondent. The hearing was convened at 9:25 a.m., November 18, 2003. Petitioner's Motion to Deem Admissions Admitted was granted and Questions 1 through 18 of Petitioner's First Request for Admissions to Respondent dated October 1, 2003, are deemed admitted. Petitioner's Motion to Relinquish Jurisdiction is denied. Petitioner presented the testimony of two witnesses: Corporal Donna Lusczynski, Hillsborough County Sheriff's Office; and Detective Harriet Wathins, City of Tampa Police Department, and offered four exhibits which were admitted in evidence. Respondent did not appear or offer evidence in his own behalf.

Petitioner agreed that the time for filing proposed recommended orders was ten days from the filing of the transcript. The Transcript was filed on February 4, 2004. Neither party has filed proposals as of the date of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Tad K. Moody, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate No. 160029 on February 11, 1996.

2. Respondent was employed by the City of Tampa Police Department as a police officer during the period February 11, 1996, through May 19, 2000.

3. In August of 1998, Respondent received an on-duty injury and was prescribed pain medications as a result.

4. Respondent signed a contract with Dr. Greenberger stating that he would only receive controlled substances from Dr. Greenberger.

5. Respondent went to several different doctors after August 1998 and received prescription pain medications from all of them.

6. Respondent never advised his treating physicians that he was receiving Hydrocodone or other pain medication from each of his treating physicians. Respondent did not inform any of the physicians that he was receiving prescription pain medications from any of the other physicians.

7. On or about July 16, 1999, Respondent reported to his treating physician’s office that his vehicle was stolen with his medication in it.

8. Dr. Batas required substantiation of the theft in the form of an auto theft report prior to issuing additional medication.

9. On or about July 16, 1999, Respondent prepared a false Tampa Police Department Offense/Incident Report, reporting that his vehicle containing medications had been stolen. He submitted it to Dr. Batas' office in order to receive additional medication.

10. On August 4, 1999, Respondent presented a prescription for 90 Vicoprofen to the Eckerd Drug Store pharmacy at 1904 West Lumsden in Brandon, Florida.

11. Dr. Steven J. Tresser, M.D., had written Respondent a prescription on August 4, 1999, for 40, not 90, Vicoprofen.

12. The Eckerd Drug Store personnel identified Respondent as the individual who submitted the altered prescription for Vicoprofen or Hydrocodone.

13. Respondent admitted to Detective Lusczynski, during an interview, that he had an addiction problem due to the back pain he suffered as a result of the injury he received in 1998.

14. In late 1999, Respondent was charged with obtaining a controlled substance by fraud (2 counts) and obtaining drugs from a physician by withholding information.

15. On or about July 24, 2000, Respondent entered into a Drug Court Agreement for 18 months' probation with the Thirteenth Judicial Circuit's State Attorney's Office.

16. As part of the agreement, Respondent was required to successfully complete the Drug Court Program, including evaluation; counseling; random urinalysis; and pay $372 court costs, plus $40 a month toward supervision.

17. Respondent's drug case was dismissed on March 14, 2002, based on his successful completion of the Drug Court Program.

18. The evidence is clear and convincing that Respondent unlawfully acquired possession of a controlled substance by misrepresentation on or about July 16, 1999.

19. The evidence is clear and convincing that Respondent unlawfully withheld information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance during the relevant time period.

20. The evidence is clear and convincing that Respondent corruptly used, or attempted to use, his official position as a law enforcement officer in such a manner as to secure a special privilege for himself by preparing a fictitious Offense/Incident Report on or about July 16, 1999.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings had jurisdiction over the subject matter and parties in this proceeding pursuant to Sections 120.569, 120.57(1) and 120.60, Florida Statutes (2003).

22. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, correctional officers, and correctional probation officers throughout the state pursuant to Sections 943.085 through 943.255, Florida Statutes (2000), and is authorized to discipline those licensed thereunder who violate the law.

23. Revocation of license proceedings are penal in nature, State ex rel Vining v. Florida Real Estate Commission, 281

    So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate,

    592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing

    evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

24. Section 943.13, Florida Statutes (2000), establishes the minimum qualifications for law enforcement officers in Florida, including at Subsection (7):

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

    
    

25. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied a license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are dissimilar to the instant case, the court's definition of moral character is significant.

    Moral Character, as used in this statute, means 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.

    
    

    Id. at 1105. See Florida Board of Bar Examiners v. G. W. L.,

    
    

    364 So. 2d 454, 458 (Fla. 1978). See also White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

26. The position of law enforcement officer is one of great public trust. There can be no more basic public expectation than that those who enforce the laws, must

    themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1985).

27. Florida Administrative Code Rule 11B-27.0011(4) defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. This was the applicable rule in effect at the time Respondent allegedly committed the violations set forth in the Administrative Complaint. The rule states in relevant portion:

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), Florida Statutes, a certified officer's failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, is defined as:

       
       

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

          
          

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

          
          

          1. Section . . . 893.13 . . . ,

          F.S. . . .

          
          

28. Section 943.1395(7), Florida Statutes (2000), provides that:

    Upon a finding by the commission that a certified officer has not maintained good moral character . . . the commission may enter an order imposing . . . penalties

    [which include revocation, suspension, probation and/or a reprimand].

    
    

29. Florida Administrative Code Rule 11B-27.005 provides, in pertinent part:

    1. The Commission sets forth in paragraph (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Section 943.13(7),F.S. . . . The disciplinary guidelines are based upon a "single count violation" of each provision listed. . .

       
       

    2. When the Commission finds that a certified officer has committed an act which violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       
       

       1. For the perpetration by the officer of an act that would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there is not a violation of section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances include the following:

          
          

          Violation:

          
          

          * * *

          
          

          4. Possession, sale of controlled substance (893.013, F.S.)

          * * *

          
          

          8. False Statements (832.02, 832.021, 837.05(2),F.S.)

          Recommended Penalty Range:

          
          

          * * *

          [4.] Revocation

          
          

          * * *

          [8.] Revocation

          
          

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to

       . . . an administrative law judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty.

       
       

30. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes (2000), and Florida Administrative Code Rule 11B-27.0011(4)(a), by unlawfully acquiring or obtaining possession of a controlled substance by misrepresentation or fraud; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance; and by corruptly using his official position as a law enforcement officer by preparing a fictitious Offense/Incident Report.

31. Respondent has failed to demonstrate that any mitigating circumstances exist in this case.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows:

1. Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2000).

2. Respondent's certification be revoked.

DONE AND ENTERED this 20th day of February, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 February, 2004.

COPIES FURNISHED:

Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Tad K. Moody

10124 Woodberry Road

Tampa, Florida 33619

Rod Caswell, 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: 03-003528PL

Orders for Case No: 03-003528PL