STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DAVID TORRES, )

)

Respondent. )

Case No. 04-2150PL

)

RECOMMENDED ORDER

Notice was provided and on September 17, 2004, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57, Florida Statutes (2004). The manner of conducting the hearing was via video-teleconferencing with the Administrative Law Judge and counsel for the parties located in Tallahassee, Florida, and the remaining participants in Tampa, Florida. The case was held before 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: Bob Bishop, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?

PRELIMINARY STATEMENT

On May 7, 2004, by an Administrative Complaint in Case

No. 20367, Petitioner accused Respondent of unlawfully making a false statement, which he did not believe to be true, under oath as administered to him in an official proceeding. This conduct is alleged to have occurred on or about October 8, 2002.

Respondent is alleged to have violated Sections 837.02(1) and 943.1395(6) and (7), Florida Statutes (2002), by his acts, as well as provisions within Florida Administrative Code Chapters 11B-20 and 11B-27. Respondent is also alleged to have failed to maintain qualifications for certification set forth in Section 943.13(7), Florida Statutes (2002).

Respondent disputed the allegations in the Administrative Complaint as set forth in paragraphs 2 and 3, through an Election of Rights form received by Petitioner on June 2, 2004. By this choice Respondent sought a formal hearing pursuant to

Section 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings (DOAH).

Consistent with Respondent's request Petitioner forwarded the case to DOAH on June 17, 2004. Following assignment, a formal hearing was initially set for September 16, 2004, in Brooksville, Florida. In response to a joint motion by the parties the case was re-noticed for hearing by video- teleconference on September 17, 2004, between Tallahassee and Tampa, Florida.

When the hearing commenced Petitioner requested that official recognition be made of Florida Administrative Code Chapter 11B-27. That request was unopposed. The request was granted.

Petitioner offered a final order issued by the Florida Public Employees Relation Commission, Case No. CS-2003-191, dated September 22, 2003, pertaining to Respondent in his employment with the Department of Corrections. Respondent objected to the receipt of the final order as evidence. The final order was denied admission for reasons explained in the hearing transcript.

Petitioner presented Sergeant Hubert Brooks and Inspector Cecil W. Rogers, II, as its witnesses. Respondent testified in his own defense. No exhibits were offered.

A hearing transcript was filed on October 4, 2004.

Respondent with Petitioner's agreement moved to extend the time for filing proposed recommended orders through October 14, 2004. The parties were orally advised that the request was granted.

This reference memorializes the extension of time. Petitioner and Respondent timely filed Proposed Recommended Orders which have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101.

2. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant.

3. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access

   to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes.

4. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes.

5. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter.

6. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.

   CONCLUSIONS OF LAW

   
   

7. DOAH has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2004).

8. By this action Petitioner seeks to discipline Respondent concerning his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate. 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. Ferris v. Turlington,

   510 So. 2nd 292 (Fla. 1987), and Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996).

9. Among the grounds for discipline referred to in the Administrative Complaint is Section 943.1395(6), Florida Statutes (2002), which states in pertinent part:

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

   s. 943.13(4) . . . .

   
   

10. Section 943.13(4), Florida Statutes (2002), states in pertinent part:

    Officers' minimum qualifications for

    employment or appointment. - . . .

    (4) Not have been convicted of any felony or a misdemeanor involving perjury or a

    false statement . . . . Any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding suspension of sentence or withholding of adjudication.

    Notwithstanding the subsection, any person who has plead nolo contendere to a misdemeanor involving a false statement, prior to December 1, 1985, and has had such records sealed or expunged shall not be deemed ineligible for employment or appointment as a officer.

    
    

11. More specifically the Administrative Complaint concerning the subject of perjury refers to Section 837.02(1), Florida Statutes (2002), which states in pertinent part:

    Perjury in official proceedings. -

    1. Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official preceding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.02, s. 775.03, or s. 775.0084.

       
       

12. It has not been proven that Respondent in a court of law was convicted of perjury, plead guilty or nolo contendere to perjury or was found guilty of perjury under Section 837.02(1), Florida Statutes (2002), pertaining to the sworn statement that he gave to Inspector Cecil W. Rogers, II. Therefore, it has not been shown that Respondent is subject to revocation of his certificates as envisioned as Section 943.1395(6), Florida Statutes (2002).

13. In the alternative Respondent is being prosecuted pursuant to Section 943.1395(7), Florida Statutes (2002), which

    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. 943.13(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.

    
    

14. A rule referred to in the Administrative Complaint which deals with the maintenance of good moral character is Florida Administrative Code Rule 11B-27.0011(4)(a), which

    states:

    
    

    For the purposes of the criminal justice standards and training commission's implementation of any of the penalties specified in section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as further:

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

    
    

15. The Administrative Complaint pertaining to Respondent's Instructor Certification makes reference to Florida Administrative Code 11B-20.0012(1)(f), which states in pertinent part:

    Denial and revocation of instructor certification. . . . If the instructor commits an act or acts establishing a "lack of good moral character," defined in subsection 11B-27.0011(4), F.A.C.

    
    

16. Section 943.12(3), Florida Statutes (2002), is mentioned in the Administrative Complaint. That provision grants Petitioner the power to revoke the certification of officers and instructors consistent with other provisions referred to in the Administrative Complaint.

17. Section 943.13(7), Florida Statutes (2002), mentioned in the Administrative Complaint 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."

18. Although there was no showing that Respondent had been criminally prosecuted for the statement which he gave to Inspector Cecil W. Rogers, II, as constituting perjury, clear and convincing evidence was presented to prove that Respondent,

    by his remarks in the interview made a false statement under oath. Upon this record the statement given would lead one to conclude that he understood the statement was not true concerning a material matter in the investigation, and by those acts met the definition of perjury as set forth in Section 837.02(1), Florida Statutes (2002). This conduct subjects his Correctional Certificate and Law Enforcement Certificate to discipline. In addition, this misconduct causes his Instructor Certificate to be disciplined.

19. Disciplinary guidelines are established in Florida Administrative Code Rule 11B-27.005, pertaining to the violations described. With those guidelines in mind a recommendation for punishment is offered based upon the facts found and conclusions of law reached, absent a prior

disciplinary history.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days.

DONE AND ENTERED this 29th day of October, 2004, 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 29th day of October, 2004.

COPIES FURNISHED:

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

Bob Bishop, Esquire Florida Police Benevolent

Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

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: 04-002150PL

Orders for Case No: 04-002150PL