STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 04-2374PL

)

THEODORE LAZIER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on September 14, 2004, by video teleconferencing between Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Theodore Lazier, Jr., pro se

25856 South West 132d Court Naranja, Florida 33032

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Theodore Lazier, Jr., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of

Law Enforcement, Criminal Justice Standards and Training Commission, and dated June 18, 2004, and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 18, 2004, the Department of Law Enforcement, Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), charged Theodore Lazier, Jr., with having violated statutory and rule provisions governing the conduct of Florida certified law enforcement officers. Mr. Lazier timely disputed the factual allegations in the Administrative Complaint by executing an Election of Rights form in which he requested a formal administrative hearing before the Division of Administrative Hearings.

Mr. Lazier's request for hearing was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an evidentiary hearing. The matter was designated DOAH Case No. 04-2374PL and was assigned to the undersigned.

By Notice of Hearing entered July 20, 2004, the final hearing of this case was scheduled to commence September 14, 2004. On September 10, 2004, an Amended Notice of Hearing by Video Teleconference was entered informing the parties that the hearing would be conducted by video teleconferencing between

Miami, Florida, and the offices of the Division of Administrative Hearings in Tallahassee, Florida. Counsel for the Commission appeared from a public hearing room located in the offices of the Division of Administrative Hearings in Tallahassee, and Respondent and the court reporter appeared from Miami.

At the final hearing, the Commission had admitted two exhibits. No witnesses were called by the Commission. The Commission also had official recognition taken of Section 944.47, Florida Statutes, and Florida Administrative Code Rules 11B-27.001 through 11B-27.013. Respondent testified on his own behalf. He offered no exhibits.

By Notice of Filing of Transcript issued October 21, 2004, the parties were informed that the Transcript of the final hearing had been filed on October 20, 2004. The parties were also informed that they had until November 29, 2004, to file proposed recommended orders. Neither party filed any post- hearing order.

FINDINGS OF FACT

1. The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law

   enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes.

2. At the times pertinent to this matter, Respondent, Theodore Lazier, Jr., was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 138687 on August 20, 1993.

3. Since being certified, Mr. Lazier as been employed as a correctional officer at the Dade Correctional Institution (hereinafter referred to as the "Correctional Institution"), a state facility.

4. On and between November 14, 1999 and September 24, 2003, Mr. Lazier, while working as a recreational supervisor, brought items declared to be contraband into the Correctional Institution. Those items included movies, candy, razor blades, and one pair of athletic shoes with cleats.

5. When the items of contraband were discovered by Correctional Institution officials, Mr. Lazier admitted bringing the items to the facility, a fact which he also admitted at the final hearing. He also explained why he had introduced the items into the facility and, while his explanation does not exonerate him from the charges in this case and apparently constituted grounds to terminate his employment at the facility, his explanation at least dispelled any thought that he had

   introduced the items for any purpose other than assisting him in the discharge of his duties.

6. As for the movies, Mr. Lazier testified convincingly and without any evidence to the contrary being offered by the Commission that he had been given specific permission to show movies to inmates as long as those movies did not contain sex or violence. That permission was given by the individual who served as warden prior to the current warden's employment.

7. The candy consisted of small pieces of primarily hard candy which Mr. Lazier used to reward inmates that assisted him as "aides" and other inmates who gave him "thoughts for the day."

8. The razor blades, which are the most troublesome items of contraband he brought into the facility, were used by inmates, under Mr. Lazier's supervision to work on sports equipment, like the weight-lifting benches. The razor blades were collected, accounted for, and stored under lock and key after their use.

9. Finally, the one pair of shoes introduced into the facility by Mr. Lazier was used by inmates participating in football.

10. The bringing of the items of contraband into the Correctional Institution, other than the movies, constituted an

    act which would constitute a felony offense as specified in Section 944.47(1)(a), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

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

    1. The Burden and Standard of Proof.

       
       

12. In the Administrative Complaint, the Commission is seeking the imposition of, among other penalties, the revocation or suspension of Mr. Lazier's certification. Therefore, the Commission has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).

13. Clear and Convincing evidence has been defined as evidence which:

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight

    that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

14. The grounds proven in support of the Commission's assertion that Mr. Lazier's certificate should be revoked or suspended must be those specifically alleged in the Administrative Complaint. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).

    1. The Charges Against Mr. Lazier; Section 943.1395(6) and (7), Florida Statutes.

    
    

15. The Commission seeks to discipline Mr. Lazier for violating Section 943.1395(6) and/or (7), which provides the following:

    1. 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).

       
       

       . . . .

       
       

    2. 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.

       
       

       D. Section 943.1395(6).

       
       

16. The Commission has failed to prove clearly and convincingly that Mr. Lazier violated Section 943.1395(6). The Commission failed to prove that Mr. Lazier "intentionally execute[d] a false affidavit" or that he was not in compliance with the provisions of Section 943.13(4), which requires that a law enforcement officer

    [n]ot have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States. . . .

    
    

17. All of the provisions cited in Section 943.1395(6) deal with giving false statements, which the evidence failed to prove Mr. Lazier is guilty of, and which the Commission did not allege or prove.

    F. Section 943.1395(7).

    
    

18. Section 943.1395(7) contemplates that a law enforcement officer will maintain good moral character and that disciplinary action may be taken against a law enforcement officer "[u]pon a finding by the commission that a certified officer has not maintained good moral character. "

19. The term "moral character" has been defined for purposes of Section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011. In its Administrative Complaint, the Commission has alleged that Mr. Lazier failed to maintain good moral character as defined in Rule 11B-27.001(4)(a), which provides, in pertinent part, as follows:

    1. 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:

       
       

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

    
    

    . . . .

    
    

20. In support of its complaint, the Commission has alleged that Mr. Lazier's actions would constitute the felony offense as defined in Section 944.47(1)(a), Florida Statutes:

    (1)(a) Except through regular channels as authorized by the officer in charge of the

    correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

    
    

    1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

       
       

    2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

    
    

    . . . .

    
    

    5. Any . . . weapon of any kind . . . .

    
    

    (2) A person who violates any provision of this section as it pertains to an article of contraband described in subparagraph (1)(a)1. or subparagraph (1)(a)2. is guilty of a felony of the third degree In

    all other cases, a violation of a provision of this section constitutes a felony of the second degree . . . .

    
    

21. The evidence clearly and convincingly proved that Mr.

    
    

    Lazier's actions in introducing candy, razor blades, and shoes constituted acts that would constitute the felony offense defined in Section 944.47(1)(a), Florida Statutes.

22. The evidence failed to prove clearly and convincingly that Mr. Lazier's actions in bringing movies into the

    Correctional Institution would have constituted a felony under Section 944.47(1)(a), Florida Statutes.

    G. Appropriate Disciplinary Action.

    
    

23. The Commission is authorized, upon finding a violation of Section 943.1395(7), to impose the discipline specified in Section 943.1295(7)(a) through (e), which ranges from revocation to a reprimand.

24. Rule 11B-27.005(5) sets forth the disciplinary guidelines for the discipline of law enforcement officers. In pertinent part, Rule 11B-27.005(5)(a) sets forth the following

    guideline:

    
    

    (a) For the perpetration by the office 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. . . .

    
    

    The rule goes on to provide guidelines for some specific offense, but none of those specific offenses have been proven in this case. Therefore, the penalty range appropriate in this case pursuant to the Commission's rules is suspension to revocation.

25. Rule 11B-27.005(6) sets forth aggravating and mitigating circumstances which also to be taken into account.

    The aggravating and mitigating circumstances applicable in this case include the following:

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

       2. Whether the misconduct was committed while the certified officer was performing other duties.

       3. The number of violations [3] found by the Commission.

       
       

       . . . .

       
       

    2. Mitigating circumstances:

    
    

    . . . .

    
    

    1. The lack of severity of the misconduct.

    2. The length of time the officer has been certified by the Commission [11 years].

    
    

    . . . .

    
    

    6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.

    
    

    . . . .

    
    

26. Although not listed as a specific mitigating circumstance, the Commission should take into account Mr. Lazier's candor about the offense he committed and his explanation of why he brought the items of contraband into the Correctional Institution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Theodore Lazier, Jr., violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of one year.

DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 22nd day of December, 2004.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Theodore Lazier, Jr.

225856 South West 132d Court Naranja, Florida 33032

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

Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida 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: 04-002374PL

Orders for Case No: 04-002374PL