STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

SCOTT D. GRZEGORCZYK, )

)

Respondent. )

Case No. 12-3613PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this matter before the Honorable Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings, on January 10, 2013, in Blountstown, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Scott D. Grzegorczyk, pro se

Florida Department of Corrections 19562 Southeast Institution Drive Blountstown, Florida 32424

STATEMENT OF THE ISSUE

Whether Respondent’s license as a corrections officer should be disciplined, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

On August 13, 2012, Petitioner filed an Administrative Complaint against Respondent to discipline his correctional officer's license for failing to maintain qualifications established in section 943.13(7), Florida Statutes, requiring a certified correctional officer to maintain good moral character. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character when he unlawfully and knowingly endeavored to obtain the property of another, valued between $300.00 and $5,000.00, with intent to either temporarily or permanently appropriate the property to his own use or to the use of any person not entitled to the use of the property in violation of sections 812.014, 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a).

On September 5, 2012, Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. The matter was then forwarded to the Division of Administrative Hearings for formal hearing.

At the hearing, Petitioner presented the testimony of three witnesses and offered one exhibit into evidence. Respondent testified on his own behalf and presented the testimony of one witness. Respondent did not offer any exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order on February 7, 2013. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a certified Corrections Officer, certified by the Criminal Justice Standards and Training Commission, holding certification number 286299.

2. Sometime in 2012, Respondent’s brother, Jeremiah Grzegorczyk, had an agreement with Ms. Mears to watch her apartment while she was on vacation. At the time, Respondent's brother was friends with Ms. Mears and had helped her in the past by letting her stay at Respondent's brother's trailer when she did not have a place to stay. However, while Respondent was aware of who Ms. Mears was and that she was a friend of his brother, he did not otherwise know her and did not know how to contact her.

3. At some point, Respondent's brother told Respondent that Ms. Mears informed Respondent's brother that she was not coming back to Blountstown and that he could have whatever items were left in the apartment after Ms. Mears’ mother removed the items she wanted since any leftover furniture and other items were going to be thrown out. Because Respondent had a truck, Respondent's brother asked Respondent for help removing items

   
   

   from Ms. Mears’ apartment. Respondent agreed to help his brother move the items out of Ms. Mears' apartment.

4. Upon arriving at the apartment, Respondent's brother opened the door. The apartment had boxes and trash scattered around. It smelled and appeared to have been abandoned with many things already removed from the apartment by someone. There was no DVD player or Playstation 3 game box in the apartment. Further, the look and condition of the apartment corroborated the story Respondent's brother gave to Respondent regarding the non- return of Ms. Mears and disposition of the property that remained in the apartment.

5. At some point during the removal, Respondent's brother spoke to Ms. Mears on his cell phone and talked about picking up items from her apartment. Respondent was aware of the call but was not privy to the entire phone conversation. However,

   Ms. Mears was aware that some of her furnishings had been removed from her apartment and that Respondent's brother had removed some items.

6. Respondent and his brother divided the various items of property between them. Respondent retained various kitchen items, used DVDs, a broken lamp, dresser, small dresser, mirror, king-size bed, and bedspread. At the time, the furnishings that Respondent retained smelled so bad that he could not put them inside his trailer. As a result, he left them in his front yard

   
   

   for several days to allow them to air out. During that time, Respondent cleaned several of the items with household cleaner in order to remove the smell and dirt from them before moving them into his home.

7. Ms. Mears, at formal hearing, set a value of the items recovered from Respondent’s home at approximately $500. However, this value is not credible given the property's condition and the heavily-used nature of the items that were taken. In fact, there was no credible evidence that the value of this used property exceeded $300.00.

8. Unfortunately, Respondent had no knowledge that

   
   

   Ms. Mears had not given the property remaining in her apartment to Respondent's brother and was duped by his brother into removing some of Ms. Mears’ possessions from her apartment. In fact, Respondent's brother admitted lying to Respondent regarding the circumstances surrounding the removal of the furniture in Ms. Mears' apartment. Clearly, Respondent did not have the intent to deprive Ms. Mears of her property and reasonably believed the property he had retained belonged to him.

9. Around January 23, 2012, the Blountstown Police Department was notified by Christina Mears, who had returned to town, that property belonging to her had been removed "without her knowledge" from her apartment by Respondent's brother. As a result of the complaint by Ms. Mears, an investigation was

   
   

   initiated by Captain Timothy Partridge, who at the time was a Lieutenant with the Blountstown Police Department. Utilizing the information supplied by Ms. Mears, Captain Partridge contacted the brother of Respondent.

10. During questioning Respondent's brother admitted that he, with the help of Respondent, made two trips to Ms. Mears apartment and removed various items from her apartment. Respondent's brother also told the investigator that he was in possession of some of the items and Respondent was in possession of the remainder.

11. After interviewing the brother, the investigator went to talk to Respondent at his mobile home. During the conversation, the investigator told Respondent that he was investigating a theft of property from Ms. Mears' apartment and showed Respondent a list of generically named items that had been reported by Ms. Mears as stolen. The items listed were: 1 mislaneous (sic) purple tub kitchen items, 1 mis (sic) purple tub, DVDs and PS-3 items, 1 bedspread, 1 dresser, 1 small dresser, 1 king-size bed set, 1 lamp, 1 misalanious (sic) green tub and 1 mirror. Captain Partridge told Respondent that his brother said these items were at Respondent's home. He also told Respondent that the items on the list were considered stolen.

12. At this point, Respondent was very confused by the story Captain Partridge was telling him and the story his brother

    
    

    had told him when they went to pick up the property. He was not sure that the items on the list were the same items he had retained from Ms. Mears' apartment. Respondent wanted to find out what was going on and asked either for Ms. Mears' phone number or to be allowed to call Ms. Mears. Captain Partridge turned down Respondent's request. However, Respondent continued to want to talk to either Ms. Mears or his brother before anything else happened. Respondent told the investigator that he did not know the items were stolen and that the only thing he had ownership of which might have been questionable ("stolen") was a broken lamp. He indicated that the reason the ownership of the lamp was in question was that, while he thought the lamp had belonged to Ms. Mears, he did not know for sure that it was hers since it had been located on the common area shared by another apartment, but appeared associated with Ms. Mears' apartment.

13. Respondent retrieved the lamp from inside his trailer and turned it over to Captain Partridge. However, Respondent refused to allow a search of his home for the remainder of the reported stolen items because he wanted to ask his brother and Ms. Mears what was going on since, as indicated, he was confused by what his brother had told him and what the investigator was telling him. Respondent did not have, and the evidence did not show that Respondent had, intent to steal or deprive Ms. Mears' of her property, but only wanted to resolve his confusion over

    
    

    its ownership. The investigator left a uniformed officer at Respondent's home and obtained a search warrant authorizing a search of the home. Thereafter, officers searched the home of Respondent and recovered various kitchen items, used DVDs, a dresser, small dresser, mirror, king-size bed, and bedspread identified by Ms. Mears as belonging to her.

14. Respondent was arrested and eventually charged with theft. Based on the charges he lost his job at the local prison where he had been employed as a corrections officer. However, as indicated above, Respondent never intended to steal or deprive Ms. Mears of her property and was not guilty of theft. As such, the evidence did not show that Respondent failed to maintain good moral character and the Administrative Complaint charging such failure should be dismissed.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.569, Fla. Stat.

16. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

17. Petitioner has the burden to establish by clear and convincing evidence that the Respondent committed the acts alleged in the Administrative Complaint and thereby failed to maintain good moral character. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), a beverage license was denied to an applicant after an administrative finding that the owner of the business was not of good moral character. In upholding the finding, the court stated:

    Moral character as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

19. Further, the Florida Supreme Court, in a case involving admission to the bar, stated that a lack of good moral character:

    . . . should not be restricted to those acts that reflect moral turpitude, but rather extends to acts and conduct which would cause a reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

    Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454 (Fla. 1978). See also White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970). Clearly, the position of Correctional Officer is one of

    
    

    great public trust and requires that those who enforce the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

20. Towards that end, Florida Administrative Code Rule 11B- 27.0011(4) provides in pertinent part:

    For the purpose of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in section 943.1395(6) or (7), Florida Statutes, a certified officer’s failure to maintain good moral character required by section 943.13(7) is defined as:

    
    

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

       
       

21. In this case, Respondent was charged with Grand Theft of Ms. Mears' property. As such, Petitioner must demonstrate that Respondent intended to deprive Ms. Mears of her property. However, the evidence was neither clear nor convincing that Respondent intended to deprive Ms. Mears of her property. Respondent was duped by his brother into removing Ms. Mears property from her apartment. When officers contacted him about the property, he believed it was his, was confused by what the investigator was telling him and wanted to find out what was going on from Ms. Mears and his brother. Such facts do not establish intent to steal or that Respondent failed to maintain good moral character. Therefore, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found not guilty of failure to maintain good moral character as required by section 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 16th day of April, 2013, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 16th day of April, 2013.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us

Scott D. Grzegorczyk (address of record)

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 12-003613PL

Orders for Case No: 12-003613PL