STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

MATTHEW SCHOENFELD, )

)

Respondent. )

Case No. 04-0282PL

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted a Final Hearing in this case on March 11, 2004, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Thompkins W. White, Esquire,

Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7),

Florida Statutes (2003), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 12, 2001, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner), issued an Administrative Complaint against Mathew Schoenfeld (Respondent). The Administrative Complaint alleged that Respondent committed the offense of petit theft in violation of Section 812.014(3)(a), Florida Statutes; and, consequently, failed to maintain good moral character as required by Section 943.13(7), Florida Statutes (2003).

According to the complaint, Respondent is subject to discipline pursuant to Sections 943.1395(6) and 943.13(7), Florida Statutes (2003).

Respondent filed a request for a formal administrative hearing on January 12, 2004. Petitioner referred Respondent's request to the Division of Administrative Hearings on

January 22, 2004.

Administrative Law Judge Charles C. Adams issued a Notice of Hearing on February 9, 2004, scheduling the hearing for March 11, 2004. Subsequently, the Division of Administrative Hearings transferred the case to the undersigned.

During the hearing, Petitioner presented the testimony of two witnesses. Petitioner also offered two exhibits that were accepted into evidence.

Respondent presented testimony of two witnesses, inclusive of himself. He did not offer any exhibits for admission into evidence.

The parties requested and were granted leave to file proposed recommended orders within 25 days of the filing of the transcript in this case.

The transcript of the final hearing was filed on April 5, 2004.

Each party subsequently filed a Proposed Recommended Order.

Each Proposed Recommended Order has been reviewed, and to the extent possible, addressed by this Recommended Order.

FINDINGS OF FACT

1. By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615.

2. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file.

3. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted.

4. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station.

5. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder.

6. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call.

7. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it.

8. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief.

9. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited.

10. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 943.1395(8)(d), Florida Statutes.

12. Petitioner has the burden of proving, by clear and convincing evidence, the allegations set forth in the Administrative Complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. The Administrative Complaint against Respondent alleges a potential violation of Section 943.1395(6), Florida Statutes, which reads in pertinent part, as follows:

    (6) The commission shall revoke the certification of any officer who is not in compliance with the provisions of

    s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

    
    

14. The record fails to provide any evidence to support a finding that Respondent violated Section 943.13(4), Florida Statutes, or that he intentionally executed any false affidavit. Further analysis is restricted to whether Respondent violated Section 943.1395(7), Florida Statutes.

15. Section 943.1395(7), Florida Statutes, states:

    
    

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

    s. 943.19(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

16. Florida Administrative Code Rule 11B-27.0011(4)(b), defines the "failure to maintain good moral character" as follows:

    (b) 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. Sections . . . 812.014.

    
    

17. Section 812.014(1)(a), Florida Statutes, reads as follows:

    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.

18. Section 812.014(2), Florida Statutes, provides an enumerated list of types of property theft offense and designates whether a particular purloining offense constitutes a felony or misdemeanor. Provisions of Section 812.014(3)(a), Florida Statutes, provides that an un-enumerated offense, such as that committed by Respondent, constitutes “petit theft of the second degree and a misdemeanor of the second degree.”

19. Respondent admits that he filched the personnel document, which is the subject of these proceedings, from the police department’s file. That admission, accordingly, subjects Respondent’s certification to discipline for his failure to maintain good moral character.

20. Florida Administrative Code Rule 11B-27.005(5)(b)4, which sets forth the disciplinary guidelines applicable here, states, in pertinent part:

    (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4). F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification. . . .

    
    

21. Florida Administrative Code Rule 11B-27.005(6), sets forth the applicable aggravating and mitigating circumstances that may be considered in determining discipline to be imposed with regard to an officer’s certification. In the present case,

    Respondent is guilty of only one offense of petit theft, a document of questionable value initially and one for which no evidence of value was presented at hearing. Further, no evidence was presented of previous disciplinary problems with this officer. Respondent’s misconduct posed no danger to the public, since he harmed no one but himself in removing and destroying the document. In a day and time when an inference of past mental illness is often equated with permanent disability, Respondent’s conduct, while wrong, was not unseemly. Finally, he has professed remorse for his conduct and was not acting as a certified officer at the time.

22. On balance and in view of all circumstances in this case, the appropriate disposition for this matter is that authorized by Section 943.1395(7)(c), Florida Statutes. There is no basis to deviate from a penalty of placement of Respondent’s certification on a probationary status for a period not to exceed two years, subject to such reasonable terms and conditions as the Criminal Justice Standards and Training Commission may choose to impose for Respondent's violation.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission.

DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 13th day of May, 2004.

COPIES FURNISHED:

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

Thompkins W. White, Esquire Igler & Dougherty, P.A.

1501 East Park Avenue Tallahassee, Florida 32301

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services 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: 04-000282PL

Orders for Case No: 04-000282PL