or any lesser included offenses; [s]ection 943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(b), (a), Florida
Administrative Code, in that Respondent has failed to maintain the qualifications established in [s]ection 943.13(7), Florida Statutes, which require that a Law Enforcement Officer in the State of Florida have good moral character." Respondent "dispute[d] the allegations of fact contained in the Administrative Complaint" and requested a "formal hearing pursuant to [s]ection 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings." The matter was referred to DOAH on December 21, 2010, for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
As noted above, the final hearing in this case was held before the undersigned on March 4 and 30, 2011. Six witnesses testified at the hearing: Ronald Phifer and Seewchand Sahdeo (on behalf of Petitioner); and Christian Rosario, Johnny Adkins III, Mark Walters, and Respondent (on behalf of Respondent). In addition to the testimony of these six witnesses, 15 exhibits (Petitioner's Exhibits 1, 2, and 4 through 6, and Respondent's Exhibits 1 through 10) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
The Transcript of the final hearing (consisting of two volumes) was filed with DOAH on April 15, 2011.
Petitioner timely filed its Proposed Recommended Order on April 25, 2010. To date, Respondent has not filed any post- hearing submittal.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Respondent is now, and has been at all times material to the instant case, certified by Petitioner as a law enforcement officer.
Until his retirement in January 2008, Respondent served in excess of 20 years as a sworn police officer in the Tampa Police Department (TPD). At the time of his retirement, he was a corporal.
At all times material to the instant case, including January 4, 2007, in addition to working full-time as a TPD police officer, Respondent owned an automotive parts and service business (Adkins Enterprises) and the seven-acre property at 4709 East Hillsborough Avenue in Tampa (including the improvements thereon) where the business was located. Until April 2005, when its Florida Department of Highway Safety and Motor Vehicles (HSMV)-issued motor vehicle dealer's license expired, Adkins Enterprises also sold used vehicles at this
location. The business had approximately 25 employees. Respondent left the day-to-day operations of the business to his managerial employees. He would stop by when he was off-duty to check on how things were going and to help out, particularly with the paperwork.
At a meeting held in 2004 (2004 Meeting), TPD Captain Robert Lovering introduced Respondent to three brothers-- Roynauth "Sham" Sahdeo (Sham), Seewchand "Blacks" Sahdeo (Blacks), and Deonauth "Prim" Sahdeo (Prim)--all of whom worked at a business on 15th Street in Tampa (S & S Auto) which did automotive repairs and paint and body work, as well as provided towing services.2 Respondent understood Sham to be the "main brother," under whom the other two brothers worked. Sham, in fact, at that time, did own the business (which, unlike Adkins Enterprises, was not a Florida-licensed motor vehicle dealer). Blacks and Prim did not then have any ownership interest in
S & S Auto.
It was verbally agreed, at the 2004 Meeting, that Adkins Enterprises and S & S Auto would go into the auto parts and scrap metal business together, with the auto parts and scrap metal to be sold by the joint venture coming from vehicles purchased at motor vehicle auctions using Adkins Enterprises' dealer license.3 (Section 320.27, Florida Statutes, provided
then, as it still does, that only licensed dealers could purchase vehicles at these auctions.)
Respondent also agreed to rent out space to S & S Auto at Adkins Enterprises' 4709 East Hillsborough Avenue location (Adkins' Location).
Sometime in or around 2005, Sham sold his interest in S & S Auto to his two brothers, Blacks and Prim. As far as Respondent understood, however, Sham continued to act on behalf of S & S Auto.4
Also in or around 2005, S & S Auto applied for and obtained a motor vehicle dealer license from HSMV.
Because Adkins Enterprises no longer had its dealer license (it having expired in April 2005), S & S Auto's dealer license was used to purchase (at auction), not only the vehicles it sold as a licensed motor vehicle dealer, but also the vehicles from which the parts and scrap metal for the joint venture between Adkins Enterprises and S & S Auto were obtained. After they were purchased at auction, the vehicles were transported to Adkins' Location on a tow truck operated by Blacks.
Space was set aside at Adkins' Location for S & S Auto to conduct motor vehicle sales operations. Insofar as Respondent knew, Dale Marler was in charge of these operations. Sham helped Mr. Marler out, but most of Sham's time at Adkins'
Location (where he had a regular presence) was devoted to the auto parts/scrap metal joint venture in which Adkins Enterprises and S & S Auto were participants. (It was at Adkins' Location where the vehicles purchased for the joint venture were stripped and crushed, and the salvaged auto parts were sold.)
When he had the time, as a favor, Respondent would take tag and title paperwork to the HSMV local office for Mr. Marler and/or Sham.
As of January 4, 2007, Sham and Mr. Marler were still working out of Adkins' Location and engaging in the business activities described above. On that day, Respondent agreed, at Sham's request, to go to the local HSMV office and purchase temporary tags for S & S Auto's motor vehicle sales operations at Adkins' Location. In addition to the money to make the purchase, Sham provided Respondent with S & S Auto's HSMV- assigned Personal Identification Number (PIN), which Respondent had to give to the HSMV clerk in order to initiate the transaction.
Respondent went to the local HSMV office, as Sham had requested, later that same day (January 4, 2007). He told the clerk that he was there to purchase 25 temporary tags for S & S Auto, and he gave her S & S Auto's PIN. The clerk inputted the information Respondent had provided her into the HSMV computer system and produced a completed HSMV Form 83090, which
represented S & S Auto's application for 25 temporary tags (S & S Auto's Application). The clerk printed out copies of S & S Auto's Application, and Respondent signed the "agency copy" on the "Authorized Representative for Dealership" signature line. At the clerk's request, he showed her his
driver's license, and she wrote down his driver's license number next to his signature on the application. Respondent left the office with 25 temporary tags (numbered Q415821 through Q415845), for which he paid $53.00.
Respondent did not knowingly provide any false or misleading information in obtaining these tags. He honestly believed that he was acting as the "Authorized Representative" of S & S Auto in this transaction, as he represented by placing his signature on the "agency copy" of S & S Auto's Application.
When he returned to Adkins' Location, Respondent put the 25 temporary tags that had been purchased at the local HSMV office in a file for Mr. Marler and Sham to use. He had nothing further to do with the tags.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of the instant proceeding and of the parties hereto pursuant to chapter 120, Florida Statutes.
At all times material to the instant case, section 943.13(7), Florida Statutes, has provided that any person
employed or appointed as a law enforcement officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under procedures established by [Petitioner]."
At all times material to the instant case, section 943.1395(7) has authorized Petitioner to revoke the certification of a law enforcement officer who has failed to maintain "good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 943.13(7)," or, alternatively, to impose specified, lesser penalties on the certificate holder, to wit: "[s]uspension of certification for a period not to exceed 2 years"; "[p]lacement on a probationary status for a period not to exceed 2 years"; "[s]uccessful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."
Petitioner has the ultimate authority to administratively interpret the provisions of sections 943.13(7) and 943.1395. It has defined by rule (in Florida Administrative Code Rule 11B-27.0011(4)) what constitutes, "[f]or the purposes of [Petitioner's] implementation of any of the penalties specified in [s]ection 943.1395[](7) . . . , a certified officer's failure to maintain good moral character required by
section 943.13(7)." At all times material to the instant case, rule 11B-27.0011(4) has provided that such a "failure to maintain good moral character" includes, among other things, "[t]he perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not," and "[t]he perpetration by an officer of an act that would constitute . . . the following misdemeanor or criminal offense[] whether criminally prosecuted or not: . . . 837.06, . . .
F. S."
Section 817.29 describes the felony offense of "cheating." At all times material to the instant case, it has provided as follows:
Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
"Section 2.01 . . . provides, with certain exceptions, that the common law and statute laws of England, as of July 4, 1776, to be the law of Florida. By reason of the said sections 2.01 and
817.29 . . . , it seems clear that the English Statute 30 Geo.
II c. 24 (1757), the first section of which makes it a crime to obtain money or goods with intent to cheat or defraud by false and untrue pretenses, is the law of this State." State v.
Peterson, 192 So. 2d 293, 295 (Fla. 2d DCA 1966). The elements of "gross fraud or cheat at common law" (conduct which section
817.29 makes a felony) are "(1) false representation of a past or existing fact; (2) knowledge of its falsity; (3) intent to defraud; (4) reliance on the misstatement by the other party; and (5) surrender by the other party of property because of the representation." Darwish v. State, 937 So. 2d 789, 793 (Fla. 2d DCA 2006).
Section 837.06 has at all times material to the instant case provided as follows:
Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Because of their penal nature, the foregoing statutory provisions must be strictly construed, with any reasonable doubts as to their meaning being resolved in favor of the certificate holder. See Camejo v. Dep't of Bus. & Prof'l Reg., 812 So. 2d 583, 583-84 (Fla.3d DCA 2002)("'Statutes such as those at issue authorizing the imposition of discipline upon licensed contractors are in the nature of penal statutes, which should be strictly construed.'"); and McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984) ("[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a
penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee.").
Deceptive intent (which is an essential element of both the felony of "cheating," as proscribed by section 817.29, and the misdemeanor of making a "false statement" of the type condemned in section 837.06) is "not usually subject to direct proof, but may be inferred from the acts of the parties and surrounding circumstances." State v. Norris, 384 So. 2d 298,
299 (Fla. 4th DCA 1980); see also Inquiry Concerning a Judge (Allen), 998 So. 2d 557, 562 (Fla. 2008)("Although there is no direct evidence presented that animus was the motive for Judge Allen's concurring opinion, motive and intent are generally proven through circumstantial evidence."); Sebastiano v. Fla.,
14 So. 3d 1160, 1164 (Fla. 4th DCA 2009)("Often, circumstantial evidence is the only way to prove intent."); Sewall v. State, 783 So. 2d 1171, 1176 (Fla. 5th DCA 2001)("Because intent to commit the theft usually cannot be proven by direct evidence, the intent may be inferred from the circumstances surrounding the illegal act."); and Grover v. State, 581 So. 2d 1379, 1380 (Fla. 4th DCA 1991)("It is black-letter of course that intent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence.").
Petitioner may take action against a law enforcement officer's certificate only after the certificate holder has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to sections 120.569 and 120.57. See § 120.60(5).
An evidentiary hearing must be held, if requested by the certificate holder, when there are disputed issues of material fact. §§ 120.569 and 120.57(1).
At the hearing, Petitioner bears the burden of proving that the certificate holder engaged in the conduct alleged in the charging instrument. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence is required. See Dep't of Banking and Fin.,
Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); Dieguez v. Dep't of Law Enf., Crim. Just. Stds. & Training Comm'n, 947 So. 2d 591, 595-596 (Fla. 3d DCA 2007); Newberry v. Fla. Dep't of Law Enf., 585 So. 2d 500 (Fla. 3d DCA 1991); and § 120.57(1)(j) ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").
Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a
reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . . 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." In re
Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee or
certificate holder based on matters (either factual or legal) not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Trevisani v.
Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000)("Marcelin first contends that the administrative law judge found that he had committed three violations which were not alleged in the administrative complaint. This point is well taken. . . . We strike these violations because they are outside the administrative complaint."); Dep't of Rev. v. Vanjaria Enters., 675 So. 2d 252,
254 (Fla. 5th DCA 1996)("[T]the issue must be treated as though it had been raised in the pleadings because the parties tried the issue by consent."); and Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated.").
In the instant case, through the issuance of its Administrative Complaint, Petitioner is seeking to take disciplinary action against Respondent on the ground that he has failed to maintain "good moral character" by virtue of his having "violate[d] the provisions of [s]ection 837.06 [and] 817.29," when:
On or about January 4, 2007, [he] did unlawfully and knowingly make a false statement in writing to wit: Department of Highway Safety and Motor Vehicles form 83090 with the intent to mislead a public servant to wit: Department of Highway Safety and Motor Vehicles in the performance of his or her [sic] official duty[;] [and]
On or about January 4, 2007, [he] did unlawfully and knowingly deceive or defraud or endeavor to deceive or defraud another to wit: the Department of Highway Safety and Motor Vehicles of his or her [sic] right to property to wit: license plates by means of false representations, tricks, devices, artifices, deceptions, or other deceitful practices.
As counsel for Petitioner clarified at the final hearing:
[Petitioner's] allegation is that when [Respondent] went to [the local HSMV office on January 4, 2007], he was not authorized [by S & S Auto] to pick up those [25 temporary] tags; and when he advised [HSMV], by signing off [on HSMV Form 83090] that he was [so] authorized, then that was a false statement.
It is undisputed that, Respondent did, in fact, at the local HSMV office on January 4, 2007, make the statement (which underlies Petitioner's "failure to maintain good moral character" charge) that he was authorized by S & S Auto "to pick up those [25 temporary] tags" (Alleged Statement). Respondent conceded as much in his testimony. He denied, however, that the Alleged Statement was false.
To prove the falsity of the Alleged Statement (as was its burden), Petitioner presented the testimony of Blacks, a co-
owner of S & S Auto since approximately 2005. Blacks testified that, on the date in question, he was the only one authorized to purchase temporary tags on behalf of S & S Auto, and he did not delegate that authority to Respondent, nor did he share with Respondent the PIN that was needed to make such a purchase.
According to Blacks, aside from himself, no one (including his wife and brothers) knew the PIN, nor could anyone gain access to the PIN without going through him since he kept the PIN "in [his] head," and it was not written down anywhere.5
Respondent, in his testimony, credibly claimed that he was asked to go to the local HSMV office to purchase the temporary tags for S & S Auto on January 4, 2007, not by Blacks, but by Sham, whom Respondent assumed had the authority to authorize him to take such action on S & S Auto's behalf. Respondent further testified, again credibly, that Sham had given him S & S Auto's PIN so he could make the purchase.
Regardless of whether he was actually authorized to act as S & S's representative in the transaction, the record evidence affirmatively establishes that Respondent believed he had such authorization when he made the Alleged Statement and that therefore the Alleged Statement was honestly made, without any deceptive intent.
Such a finding is fatal to Petitioner's case. Without clear and convincing proof that Respondent made the Alleged
Statement with deceptive intent, knowing that it was false, Petitioner cannot prevail in this matter.
In the absence of such proof, the Administrative Complaint must be dismissed.
