STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

VERONICA A. SMITH, )

)

Respondent. )

Case No. 04-0399PL

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on April 8, 2004, by video conference between Fort Myers and Tallahassee, Florida.

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 ISSUES

Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), 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 correctional officer in the State of Florida. In an Administrative Complaint dated December 12, 2003, Petitioner alleged that Respondent violated the provisions of Chapter 827 and Subsections 943.1395(6) and 943.13(4), Florida Statutes (2002), and Florida Administrative Code Rule 11B-27.0011(4)(d) and that Respondent failed to maintain the qualifications established by Subsection 943.13(7), Florida Statutes (2002), which requires that correctional 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 February 3, 2004. Petitioner's Motion to Relinquish Jurisdiction was denied by Order dated March 16, 2004. A formal hearing was conducted by video conference with counsel for Petitioner and the Administrative Law Judge in Tallahassee and the witness and court reporter in Ft. Myers, pursuant to Subsection 120.57(1), Florida Statutes (2003).

At the hearing, Respondent failed to appear at the appointed time and place. A diligent search and inquiry failed

to locate Respondent. The hearing was convened April 8, 2004, at 9:20 a.m. Petitioner presented the testimony of one witnesses: Lieutenant Frank Taboadela, Lee County Sheriff's Office, and offered three exhibits which were admitted into evidence. Respondent did not appear or offer evidence in her own behalf. Petitioner moved to keep the record open for ten days for the filing of additional exhibits. Said motion was granted. On April 14, 2004, Petitioner submitted a Supplemental Filing consisting of three exhibits. Upon review, said exhibits are admitted in evidence as part of the record.

Petitioner agreed that the time for filing proposed recommended orders was ten days from the filing of the Supplemental Filing. The hearing was recorded but not transcribed. Neither party has filed proposed recommended orders as of the date of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992.

2. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002.

3. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida.

4. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case

   No. 02-1878CF.

   
   

5. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections.

6. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department.

7. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character.

8. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.

   CONCLUSIONS OF LAW

   
   

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

10. 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 (2003), and is authorized to discipline those licensed thereunder who violate the law.

11. 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).

12. Section 943.13, Florida Statutes (2003), establishes the minimum qualifications for law enforcement and correctional officers in Florida, including at Subsection (7):

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

    
    

13. 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).

14. The position of law enforcement officers and correctional officers 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).

15. 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.

          
          

16. Subsection 943.1395(7), Florida Statutes (2002), 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].

    
    

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

    1. The Commission sets forth in paragraph (5)(a)-(d), of this rule section, 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 paragraph 11B- 27.0011(4)(a), 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 suspension of certification to revocation. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, . . . .

          
          

          * * *

          
          

    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. . . .

       
       

18. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Subsection 943.13(7), Florida Statutes (2002), and Florida Administrative Code Rule 11B-27.0011(4)(b) by being charged with and pleading guilty to felony child neglect.

19. 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 Subsection 943.13(7), Florida Statutes (2002).

2. Respondent's certification as a correctional officer be revoked.

DONE AND ENTERED this 28th day of May, 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 28th day of May, 2004.

COPIES FURNISHED:

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

Veronica A. Smith Post Office Box 6812

Fort Myers, Florida 33911

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services 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: 04-000399PL

Orders for Case No: 04-000399PL