STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

OMAR LOPEZ,

Respondent.

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) Case Nos. 11-1236PL

) 11-1236PL

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RECOMMENDED ORDER

On May 23, 2011, a duly-noticed hearing was held by video teleconferencing with sites in Tallahassee and Daytona Beach, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Omar Lopez, pro se

STATEMENT OF THE ISSUE

Whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2009), and Florida Administrative Code Rule 11B-27.004(4), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On August 11, 2010, Petitioner, the Criminal Justice Standards and Training Commission (Petitioner or CJSTC) filed an Administrative Complaint in CJSTC Case No. 29397, alleging that Respondent, Omar Lopez (Mr. Lopez or Respondent), filed to maintain good moral character in violation of section 943.1395(7) and rule 11B-27.004(4), by unlawfully entering the residence of Patrick Shaw and Katrina Kent with the intent to steal two dogs. On October 27, 2010, CJSTC filed a second Administrative Complaint, CJSTC Case No. 30759, alleging that Respondent violated section 943.1395(7) and Rule 11B-27.004 by using or attempting to use his official position to query information on a victim, David Brichler, by accessing a secure system, and pretending to be a deputy sheriff. On February 3, 2011, Respondent filed an Election of Rights form disputing the allegations in both Administrative Complaints, and on March 10, 2011, the cases were forwarded to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge.

Administrative Complaint No. 29397 was docketed as DOAH Case No. 11-1236PL, and Administrative Complaint No. 30759 was docketed as DOAH Case No. 11-1237PL.

The cases were consolidated for hearing and on March 30, 2011, a Notice of Hearing was issued scheduling the cases for hearing May 23, 2011, and the cases proceeded as scheduled.

Petitioner presented the testimony of Officer Kelly Jo Brubaker

and Sergeant James Turner, and Petitioner's Exhibits 1-12 were admitted into evidence. Respondent testified on his own behalf but presented no other witnesses and submitted no exhibits.

At hearing, the majority of the evidence presented was for the purpose of supporting the allegations in Case No. 11-1237. Two witnesses subpoenaed by the Department, Kristina Kent and Patrick Shaw did not appear. At the Department's request, the proceedings were continued in order to secure the testimony of the two witnesses, with the intention of resuming the hearing at a later date so that Respondent could respond, if he chose, to the testimony of these two witnesses. Petitioner was given 30 days to file the depositions of Ms. Kent and Mr. Shaw and to provide several mutually acceptable dates for reconvening the hearing.

On June 21, 2011, Petitioner filed a Notice of Voluntary Dismissal with respect to Case No. 11-1236PL. On June 30, 2011, the undersigned issued an Order Requiring Status Report, requiring Petitioner to confirm whether additional hearing time was still required. The Order specified that if no response was received, it would be assumed that the record is closed and proposed recommended orders would be due no later than July 15, 2011. On July 18, 2011, Petitioner filed a Proposed Recommended Order. No submission has been received from Respondent. All references are to the 2010 version of the statute unless otherwise indicated. Because of the Notice of Voluntary

Dismissal with respect to Case No. 11-1236PL, the findings of fact will not address the allegations contained in the Administrative Complaint, CJSTC No. 29397.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent was a certified law enforcement officer, certified by the CJSTC.

2. At the time relevant to the Administrative Complaint, Respondent was acquainted with a person named Terrence Hicks. Mr. Hicks was apparently involved in some business dealings with a Mr. Brichler. In connection with these business dealings,

   Mr. Brichler had possession of several motorcycles owned by Mr. Hicks.

3. Respondent accessed information regarding Mr. Brichler from a secure Florida Department of Highway Safety and Motor Vehicles DAVID system on two different occasions: Friday, September 26, 2008, and Monday, October 27, 2008.

4. Respondent was not working on any investigation regarding Mr. Brichler at the time he accessed the DAVID system. No traffic citations, field contact cards, or offense reports regarding Mr. Brichler were generated by Respondent or any other deputy.

5. After the second time he accessed the system, on or about November 3, 2008, Respondent went to Mr. Brichler's home to inquire about the motorcycles. Based upon his conversation with

   
   

   Mr. Brichler, Respondent claims that he determined that the dispute between Brichler and Mr. Hicks was civil in nature, and he generated no complaint or paperwork as a result.

6. At the time he visited Mr. Brichler's home, Respondent was off duty. However, he was in uniform and arrived at the home in a marked, county-issued vehicle.

7. Mr. Brichler contacted the Volusia County Sheriff's Office in or about February 2009, stating that Respondent had come to his home in November 2008 and identified himself as Deputy Sanchez. Mr. Brichler claimed in his complaint that the officer coming to his house provided him with a business card bearing the insignia for the Volusia County Sheriff's Office, with the office's address and telephone number. The card had a line stating, "Presented By:" followed by a blank line, with the words Deputy Sheriff written underneath. Written on the blank line was "Deputy Sanchez." According to the police report, there is no Deputy Sanchez that has worked or does work for the Volusia County Sheriff's Office.

8. The complaint indicates that Brichler realized that the person identifying himself as Deputy Sanchez was actually Respondent, because he read an article about two deputies that had been arrested for racing motorcycles, and the photograph of one of the deputies was of Respondent, identifying him as Deputy Lopez. He supplied the business card with Deputy Sanchez written on it to Deputy Turner, who investigated his complaint.

   
   

9. Respondent admits accessing the DAVID system to gain information on Mr. Brichler, and admits going to his home to ask about the motorcycles. With respect to the business card, Respondent states that it was a blank, generic business card provided by the sheriff's office.

10. Mr. Brichler did not testify in this proceeding.

    
    

11. During his interview with Deputy Turner, Respondent denied giving Mr. Brichler a business card with "Deputy Sanchez" written on it. He admitted accessing the DAVID system and going to Mr. Brichler's house.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.

13. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent's certification as a law enforcement officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Clear and convincing evidence:

    
    

    [R]equires 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 lacking in

    
    

    confusion as to the facts in issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

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

    
    

15. The Administrative Complaint in Case No. 11-1237 contains the following factual allegations:

    1. (a) On or about September 26, 2008, the Respondent, Omar Lopez, did then corruptly use or attempt to use his/her official position as a law enforcement, or any property of (sic) resource within his/her trust, or did perform his/her duties, in such a manner as to secure a special privilege, benefit or exception for himself/herself or others, to wit: to query information on victim, David Brichler by accessing the secure Florida Department of Highway Safety and Motor vehicles DAVID system.

       
       

       (b) On or about, October 27, 2008 the Respondent, Omar Lopez, did then corruptly use or attempt to use his/her official position as a law enforcement, or any property of (sic) resource within his/her trust, or did perform his/her official duties, in such a manner as to secure a special privilege, benefit, or exception for himself/herself or others, to wit: to query information on victim, David Brichler by accessing the secure Florida Department of Highway Safety and Motor vehicles DAVID system.

       
       

       (b) On or about between November 3, 2008 and November 4, 2008 the Respondent, Omar Lopez did unlawfully and falsely assume or pretend to be a Deputy Sheriff, and unlawfully took upon himself to act as such, or requ[illegible] another person to aid or assist him in a matter pertaining to the city of any such officer, to wit: observe vehicle

       
       

       property of an owner prior to a reported vehicle theft.

       
       

    2. The actions of the Respondent did violate the provisions of Section 843.08 or any lesser included offenses, Section 943.1395(7), Florida Statutes, and Rule 11B- 27.0011(4)c; c; a, Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character.

16. There is clear and convincing evidence to support the factual allegations in paragraphs 2(a) and (b) of the Administrative Complaint, and Respondent does not dispute these allegations. He did in fact access the DAVID system to obtain information regarding David Brichler.

17. There is not clear and convincing evidence to support the allegations in paragraph 2(c). While Respondent admits going to the Brichler home, the only competent evidence of the encounter between Brichler and Respondent is provided by Respondent. Mr. Brichler did not testify, and Officer Turner's recitation of his conversation with Mr. Brichler is clearly hearsay upon which a finding of fact cannot be made.

    § 120.57(1)(c), Fla. Stat.; Sheriff of Broward Cnty. v. Stanley,

    
    

    50 So. 3d 640, 644 (Fla. 1st DCA 2010); Dieguez v. Dep't of Law Enf., Crim. Just. Stds. & Training Comm'n, 947 So. 2d 591, 594-95 (Fla. 3d DCA 2007). Accordingly, there is no competent evidence to support the allegations that Respondent represented himself as Deputy Sanchez, that he wrote "Deputy Sanchez" on the business

    
    

    card, or that he went to the home to observe vehicles that were on Brichler's property prior to a reported vehicle theft.

18. The Administrative Code also alleges that the Respondent's actions violate section 943.1395(7) (failure to maintain good moral character as defined by rule) and "Rule 11B- 27.0011(4)c; c; a, Florida Administrative Code." Neither the current version nor the version of the rule in effect at the time of the alleged conduct is numbered in the manner described in the Administrative Complaint. An examination of rule 11B-27.0011(4), as it exists at the time of the alleged conduct, indicates that rule 11B-27.0011(4)(b)1. defines failure to maintain good moral character as including any felony whether or not criminally prosecuted.

19. Section 843.08, cited in the Administrative Complaint, makes it a felony to falsely assume or pretend to be a law enforcement officer. Here, there is no competent evidence to indicate that Respondent falsely represented himself as another officer. While it is clear that he went to Mr. Brichler's home, by his own admission, in uniform, there is no clear and convincing evidence that he made any improper representations regarding his identity or his purpose in being there.

20. Rule 11-27.0011(4)(c)2. also includes within the definition of failing to maintain good moral character the misuse of official position, as defined in section 112.313(6), Florida Statutes, which states in pertinent part:

    
    

    (6) MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

21. The language in section 120.313(6) parallels that of the Administrative Complaint, and it is clear that it is this provision in the rule with which Respondent is meant to be charged. The typographical error in identifying the specific subsection in the rule does not mislead Respondent in presenting a defense, given the recitation of the language in section 112.313(6) in the Administrative Complaint.

22. Petitioner has demonstrated that Respondent misused his public position as alleged in the Administrative Complaint. Respondent accessed a secure system for the purpose of obtaining information about Mr. Brichler. He did not do so in connection with any official investigation, but for the purpose of assisting his friend Mr. Hicks. But for his position as a law enforcement officer, he would not have access to the DAVID system. Accordingly, clear and convincing evidence has been presented to show that Respondent failed to maintain good moral character in violation of section 943.1395(7), as defined in rule 11B- 27.0011(4)(c)2.

23. The CJSTC has adopted Disciplinary Guidelines that provide ranges of penalties for violations of section

    
    

    943.1395(7). For abuse of an officer's official position, as found here, the guideline penalty is suspension of the law enforcement certificate. The rule does not specify a length of suspension. Fla. Admin. Code R. 11B-27.005(5)(c)3.

24. Petitioner has recommended a ten-day suspension, with additional probation and an approved ethics course. Neither the probation nor the ethics course is listed as a guideline penalty in the rule in effect at the time of the violation for the violation found. Further, the penalty proposed by Petitioner assumes that clear and convincing evidence was presented to prove that Respondent also impersonated a law enforcement officer. Under these circumstances, a lesser penalty than that recommended by Petitioner should be imposed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Criminal Justice Training and Standards Commission enter a Final Order:

1. dismissing the Administrative Complaint in Case No. 11-1236PL;

2. finding that Respondent failed to maintain in violation of section 943.1395(7), as defined in rule 11B-27.0011(4)(c)2.,; and

3. suspending his certification for a period not to exceed five days.

DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2011.

COPIES FURNISHED:

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

Omar Lopez

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Crews, Program Director Criminal Justice Standards

and Training Commission 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: 11-001237PL

Orders for Case No: 11-001237PL