vs. )
JOSE R. RODRIGUEZ, )
Respondent. )
Case No. 11-0918PL
Pursuant to notice, a final hearing was held in this case on April 12, 2011, by video teleconference with sites in Orlando and Tallahassee, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Joseph S. White, Esquire
For Respondent: Jose R. Rodriguez, Jr., pro se
The issues in this case are whether Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes (2008),1/
and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
On March 23, 2010, Petitioner, Criminal Justice Standards and Training Commission (Commission), issued an Administrative Complaint, alleging that Respondent, Jose R. Rodriguez, Jr. (Mr. Rodriguez), violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b). Mr. Rodriguez filed an Election of Rights form, disputing the allegations set forth in the Administrative Complaint, and requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes. The case was received by the Division of Administrative Hearings on February 21, 2011.
At the final hearing by video teleconference on April 12, 2011, the Commission requested leave to amend subparagraphs 2(a) and 2(b) of the Administrative Complaint, by changing the alleged date from February 20, 2009, to February 10, 2009.
Mr. Rodriguez did not have an objection to the changed date of February 10, 2009. The request to amend the Administrative Complaint was granted, and the Amended Administrative Complaint was deemed filed on April 12, 2011.
The Commission called Detective Takeya Close, Agent Ciara Melendez, Deputy Scott Bearns, and Devon Littlejohn as its witnesses. Petitioner’s Exhibits 1 and 2 were admitted into
evidence. Mr. Rodriguez testified on his own behalf and did not produce any other witnesses. Mr. Rodriguez did not proffer any exhibits into evidence.
The Transcript was filed on May 27, 2011. At the final hearing, the parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The Commission filed its Proposed Recommended Order on June 6, 2011. In the Commission’s Proposed Recommended Order, the Commission requested to voluntarily dismiss the allegation in subparagraph 2(a) of the Amended Administrative Complaint. As of the date of this Recommended Order, Mr. Rodriguez had filed no post-hearing submittals.
Mr. Rodriguez was certified as a correctional officer in the State of Florida by the Commission on May 18, 2004, and was issued Correctional Certification No. 240475.
On or about February 10, 2009, officers from the Kissimmee Police Department and St. Cloud Police Department participated in an undercover police operation geared to targeting individuals that intend to commit crimes involving narcotics or prostitution. They created a false advertisement for prostitution services on the website, Craigslist. The advertisement consisted of photographs and an undercover phone
number to contact for sexual services. The advertisement did not indicate that it was an undercover operation.
On or about that same date, Mr. Rodriguez placed a phone call using the same number on the advertisement. At the time Mr. Rodriguez placed the call, he was unaware that the advertisement was part of an undercover operation.
During the phone conversation, Mr. Rodriguez communicated with Detective Takeya Close (Detective Close), an undercover agent who posed as a prostitute. Detective Close did not identify herself to Mr. Rodriguez as an undercover agent.
Mr. Rodriguez communicated to Detective Close that he desired sexual services from her in exchange for money. Detective Close informed Mr. Rodriguez that the price for sexual services ranged from 50 to 80 dollars. A “quickie” service consisted of 15 minutes or less of sexual activity and cost
50 dollars. A “full service” consisted of a half-hour of sexual activity and cost 80 dollars.
Mr. Rodriguez told Detective Close that he wanted a “full service” and was willing to pay her either price for her sexual services.
Detective Close then provided Mr. Rodriguez a meeting location, a residential house at 4903 Newton Court in St. Cloud, Florida. Law enforcement used the residential house as part of the undercover operation. They agreed to meet at 8:45 p.m.
Mr. Rodriguez arrived at the agreed time at the St. Cloud residential house that was part of the undercover operation. Detective Close, posed as a prostitute, greeted Mr. Rodriguez at the front door.
Once Mr. Rodriguez entered the house, law enforcement officers arrested and detained him.
During a search of Mr. Rodriguez incident to his arrest, law enforcement officers discovered his cellular phone, which contained the undercover phone number in the call history log, and 50 dollars cash.
Detective Close’s credible testimony was that, on or about February 10, 2009, Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and arrived at the St. Cloud undercover residential house attempting to engage in prostitution.
Mr. Rodriguez’s testimony that the purpose of his communication with Detective Close and his arrival at the St. Cloud residential house was to receive a massage was not credible. His cellular phone showed that he had called the
undercover number and that he went to the St. Cloud undercover house at the agreed time.
On or about April 12, 2009, Mr. Rodriguez was driving a white SUV. Devon Littlejohn (Ms. Littlejohn), a prostitute, was standing on the corner of Wakulla and Orange Blossom Trail,
an area known for prostitution activity. When Mr. Rodriguez drove past where Ms. Littlejohn was standing, Ms. Littlejohn waived at him. Mr. Rodriguez made a U-turn and drove up to Ms. Littlejohn.
Ms. Littlejohn approached Mr. Rodriguez while he was in his vehicle and engaged in conversation with him.
Ms. Littlejohn solicited sexual services to Mr. Rodriguez by asking him if he wanted a “date.” Mr. Rodriguez answered affirmatively and then asked Ms. Littlejohn if she had a room. Ms. Littlejohn answered yes. Mr. Rodriguez then asked
Ms. Littlejohn about the price for her sexual services, and she informed him that “full service” costs 80 dollars.
Mr. Rodriguez agreed to pay Ms. Littlejohn 80 dollars in exchange for her sexual services.
Ms. Littlejohn entered the passenger side of
Mr. Rodriguez’s vehicle. Mr. Rodriguez then drove off with Ms. Littlejohn inside his vehicle.
On April 12, 2009, Law Enforcement Sheriff Deputy Scott Bearns (Deputy Bearns) of the Orange County Sheriff’s Office was patrolling the Orange Blossom Trail area when he drove pass Mr. Rodriguez’s vehicle.
Deputy Bearns conducted a traffic stop on
Mr. Rodriguez’s vehicle for having an illegal window tint. Mr. Rodriguez pulled his vehicle over at a parking lot across
the street from the place where Ms. Littlejohn was originally standing.
Deputy Bearns recognized Ms. Littlejohn as a prostitute in the local area and observed her and Mr. Rodriguez in the vehicle. Mr. Rodriguez informed Deputy Bearns that he worked as a correctional officer.
Deputy Bearns then escorted Ms. Littlejohn outside of Mr. Rodriguez’s vehicle and Mirandized her. Ms. Littlejohn revealed to Deputy Bearns that Mr. Rodriguez had agreed for her to perform sexual services in exchange for 80 dollars.
Ms. Littlejohn provided Deputy Bearns a written statement to that effect.
Deputy Bearns arrested Mr. Rodriguez for assignation to commit prostitution. Ms. Littlejohn was not arrested.
Incident to the arrest, another deputy conducted a search of Mr. Rodriguez’s vehicle and discovered a total of
102 dollars cash.
Ms. Littlejohn’s credible testimony was that
Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and allowed her to enter his vehicle in an attempt to engage in prostitution.
Mr. Rodriguez’s testimony that Ms. Littlejohn jumped in his vehicle without his consent and was hanging out of the vehicle with the door open was not credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 & 120.57, Fla. Stat. (2010).
The Commission has the burden of establishing the allegations in the Amended Administrative Complaint by clear and convincing evidence. See, e.g., Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence has been described by the courts as follows:
[C]lear and convincing evidence 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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (citing Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Commission has alleged that Mr. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b), by attempting to engage in prostitution, in violation of sections 796.07(2)(c), 796.07(2)(e), and 796.07(2)(g), Florida Statutes, which provide:
(2) It is unlawful:
* * *
(c) To receive, or to offer or agree to receive, any person into any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there for such purpose.
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(e) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
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(g) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
Section 943.13(7) provides that a correctional officer shall have “a good moral character as determined by a background investigation under procedures established by the commission.”
Section 943.1395(7) provides:
(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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Rule 11B-27.0011(4)(b) provides, in relevant part:
(4) 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 as required by Section 943.13(7), F.S., is defined as:
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(b) Except as otherwise provided in Section 941.13(4), F.S., . . . 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 . . . 796.07. . . .
Rule 11B-27.0011(4)(b) provides the basis for determining that a certified officer has failed to maintain good moral character. An officer’s engagement or attempt to engage in prostitution under section 796.07 suffices in determining that an officer failed to maintain good moral character.
Mr. Rodriguez has failed to maintain good moral character as set forth in rule 11B-27.0011(4)(b).
The Commission has established by clear and convincing evidence that Mr. Rodriguez attempted to engage in prostitution on or about February 10, 2009, when Mr. Rodriguez communicated with Detective Close and arrived at the St. Cloud residential house, pursuant to an undercover advertisement for prostitution services.
The Commission has established by clear and convincing evidence that Mr. Rodriguez attempted to engage in prostitution on or about April 12, 2009, when Mr. Rodriguez communicated with Ms. Littlejohn and invited her inside of his vehicle for prostitution services.
Rule 11B-27.005 provides the range of penalties for disciplinary actions, and rule 11B-27.005(5)(b) provides:
(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. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:
* * *
8. Violation: Prostitution or lewdness; voyeurism, video voyeurism (796.07, 810.14, F.S.) . . . Recommended Penalty Range: Prospective Suspension, and probation with counseling to revocation.
The appropriate penalty in this case is revocation of Mr. Rodriguez’s certification. Mr. Rodriguez committed the violations on two separate occasions and in less than two months apart. His position as a correctional officer is one of great public trust. Short v. Fla. Dep’t of Law Enf., Crim. Just. Stds. & Training Comm’n, 589 So. 2d 364, 365 (Fla. 1st DCA 1991). His repeated violations and breach of public trust serve as aggravating factors in this case and necessitate revocation.
RECOMMENDED that a final order be entered finding that Jose R. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b) and revoking his certification.
DONE AND ENTERED this 21st day of June, 2011, in Tallahassee, Leon County, Florida.
SUSAN B. HARRELL
Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2011.
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.
Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Jose R. Rodriguez, Jr.
Michael Crews, Program Director Division of Criminal Justice Professionalism Services
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
