The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Wayne Martin Dean (Dean), has been employed by the County as a correctional officer since June 24, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Dean.3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Dean had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Dean and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly sold cannabis and have possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Dean filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Dean denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, Dean initially applied with the County for employment as a correctional officer in 1983. During the course of the pre- employment interview on that application, which occurred on August 30, 1983, Dean divulged that he had used marijuana so frequently as not to be able to recall the number of times he had used it, and estimated that during the course of the preceding twelve months that he had used marijuana 500 times. Regarding such use, the proof demonstrates that Dean started using marijuana while in high school and that following 1979, when he dropped out of school, that such use gradually escalated until it reached the level of abuse noted in 1983. As a consequence of such disclosure, the County denied Dean's application for employment. Following the denial of his application, Dean resolved that if he were to ever better himself, it would be necessary to disassociate himself from the use of controlled substances. As a consequence, Dean has not used any controlled substance since November 1983. In 1985, Dean reapplied with the County for employment as a correctional officer. During the course of the pre-employment interview on that application, which occurred on March 19, 1985, Dean again conceded that he had previously used marijuana so frequently as not to be able to recall the number of times, but that the last time was in November 1983. Dean also divulged that he had used cocaine approximately three times in his life, the last time being in early 1983, and that he had sold marijuana three or four times, the last time being in early 1983, from which he had made about $15. Under the provisions of rule 11B-27.0011(2), the use of a controlled substance does not conclusively establish that an applicant lacks the good moral character necessary for certification unless such use was "proximate" to his application. The Commission has not defined the term "proximate," and offered no proof at hearing as to what it considers "proximate" usage within the meaning of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state have been left with no definitive guideline from the Commission, and have adopted various standards. Pertinent to this case, Dade County has adopted a term of one year as the standard by which it gauges the "proximate" use of a controlled substance to an application for employment. Under such policy, an applicant who has refrained from such use for at least one year preceding application will not be automatically rejected as lacking good moral character. Rather, the applicant's entire background will be evaluated to determine whether he currently possess the requisite moral character for employment. 4/ Here, Dean, born November 14, 1962, used marijuana extensively for the twelve-month period preceding November 1983, last used cocaine in or about March 1983, and last sold marijuana in or about March 1983. In light of such protracted and frequent use, Dean's application for employment should have been denied as having failed to evidence the requisite good moral character necessary for employment as a correctional officer. While Dean's application for employment should have been denied in 1985, this proceeding is a de novo hearing on his application for certification, and his qualifications are, therefore, evaluated as of the date of hearing. To date, Dean has been employed by the County as a correctional officer, a position of trust and confidence, for almost four years. His annual evaluations have all been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Dean has demonstrated that he currently possesses the requisite good moral character for certification as a correctional officer. While he did use controlled substances until his twenty-first birthday, his resolve to disassociate himself from such practice is supported by the proof. Under such circumstances, Dean's contact with controlled substances over five and one-half years ago is not persuasive proof of bad moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Wayne Martin Dean, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th of June 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 3/Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Fialko had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of food moral character. By letter dated November 1, 1988, the Commission notified Fialko and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, David Fialko, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
Findings Of Fact Arthur Steinhardt, on September 27, 1972; July 5, 1973; and November 17, 1975 applied to take the examination given to applicants for registration as real estate salesman by the FREC. All of these applications were denied on grounds that applicant had failed to give complete answers to questions on the application and had failed to show that he met the statutory qualifications of honesty, truthfulness, trustworthiness and good character. At the instant proceeding the FREC's attorney stipulated that the giving of incomplete answers on the application was no longer an issue and that the FREC had been fully apprised of the applicant's past record of conviction. Applicant, who is presently 59 years old, was convicted in 1969 of grand larceny and uttering a forgery, and sentenced to prison for a term of six months to three years. He was released after serving nineteen months and applied for a pardon on May 19, 1971. On June 15, 1972 he was granted a pardon and his civil rights were restored. Since his release from prison he has worked as office manager for his sister who is a licensed mortgage broker and real estate broker. Applicant filed for bankruptcy and was discharged by the referee in bankruptcy in 1973. For the past six years he has had no further brushes with the law. The conviction for which applicant was imprisoned involved a family dispute and the ownership of family assets is presently in litigation with applicant and his sister attempting to recover estate assets from a brother. One witness, a member of the Florida Bar, testified to the good character and business reputation of the Applicant. One affidavit of good character has been received as late-filed Exhibit 2.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Theresa Devergiles-Lamary (Lamary), has been employed by the County as a correctional officer since October 23, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Lamary.3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lamary had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Lamary and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Lamary filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Lamary denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Lamary on March 10, 1985, at which time she admitted that she had used marijuana. Regarding such use, the proof demonstrates that Lamary used marijuana no more than five times, and more probably three times, and that she last used marijuana in 1982 when she was in high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Lamary's background, that Lamary possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana. The Commission's action is not warranted by the proof. Here, Lamary, born July 8, l964, used marijuana no more than five times, the last time being over 7 years ago when she was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ To date, Lamary has been employed by the County as a corrections officer, a position of trust and confidence, for over four years. Her annual evaluations have ranged from satisfactory to above satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Lamary has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Theresa Devergiles-Lamary, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
Findings Of Fact By application filed November 26, 1990, Petitioner requested licensure as a real estate salesman. In the application, he answered in the affirmative a question asking if he had ever been convicted of a crime. On December 1, 1982, Broward County Circuit Court received a guilty plea from Petitioner to carrying a concealed firearm and possession of codeine. The Court withheld adjudication and sentenced Petitioner concurrently to two years' probation on each count. Petitioner may have been found guilty of a separate charge of driving while intoxicated. However, the State dropped charges of possession of diazepam. Petitioner completed the probationary period without incident. Petitioner was arrested on December 4, 1985, for loitering and hindering traffic. However, no competent evidence establishes that Petitioner was found, or in fact was, guilty of anything in connection with the arrest. On September 21, 1989, Petitioner pleaded guilty to a charge of possession of a controlled substance--cocaine. The Duval County Circuit Court withheld adjudication of guilt and placed Petitioner on probation for a period of 12 months. Additional requirements of probation were that Petitioner had to submit to random urinalyses, complete drug education classes and pay court costs of $620. Petitioner completed the probation successfully. Petitioner, who is a currently licensed cosmetologist, operated a chain of beauty salons from 1958 through 1986. Following that, he worked as a civil process server for the Duval County Sheriff's Office and an attendant with the Mayport ferry operated by the Florida Department of Transportation in the Jacksonville area. Petitioner has not been significantly employed for over a year, during which time he has resided with his mother in Titusville. Petitioner denies having a problem with alcohol presently. Petitioner's application contains favorable recommendations as to good character reputation for honesty from many persons who, in most cases, have known him for many years.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order allowing Petitioner to take the real estate salesman's examination. ENTERED this 1st day of November, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1991. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Frederick Joseph Peele, pro se 7675 U.S. 1 South, Lot 45 Titusville, FL 32780 Joselyn M. Price Assistant Attorney General Counsel for Florida Real Estate Commission 400 West Robinson Street Suite S 107 Orlando, FL 32801 Jack McRay General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, James Battle (Battle), has been employed by the County as a correctional officer since June 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Battle. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Battle had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Battle and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Battle filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Battle denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Battle on December 18, 1987, at which time he admitted that he had used marijuana. Regarding such use, the proof demonstrates that during the years 1982 and 1983, while a junior and senior in high school, Battle used marijuana approximately 15 times. He has not used marijuana since his graduation from high school in 1983, and has never used any other form of controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Battle's background, that Battle possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana during high school. The Commission's action is unwarranted. Here, Battle, born May 18, 1965, used marijuana approximately 15 times, the last time being over 6 years ago when he was 18 years of age and a senior in high school. He has not used marijuana since, and has never used any other form of controlled substance. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Battle has been employed by the County as a corrections officer, a position of trust and confidence, for approximately one year. His evaluations have been satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, and following his graduation from high school, Battle has been continuously employed. Additionally, he has served in the National Guard for almost five years, and attained the rank of E3. Overall, Battle has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, James Battle, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact The Petitioner, James A. Detzel, age 40, was born in Miami, Florida, and he lived there until sometime during his junior high school years when he went into the United States Marine Corps. He subsequently earned and received a GED diploma from high school. At age 19 the Petitioner began to get into trouble with the law. He was arrested and convicted in Atlanta, Georgia, for armed robbery in 1960, and served a two year sentence. Between this occurrence and the year 1968 he was arrested and convicted three more times, for robbery, escape while serving the robbery sentence, and for possession of burglary tools. In 1968 the Petitioner was arrested for breaking and entering-grand larceny in Dade County, Florida, and sentenced to 15 years. He served nine and one-half years, and received a conditional release in 1976. A conditional release is the same as parole, but the Petitioner had previously violated parole and was not again eligible to receive parole. Thus, he received the conditional release. In October of 1981, the Petitioner's conditional release was terminated, after it had been satisfactorily completed. During the years, the Petitioner has also been arrested and convicted of breaking and entering-petit larceny, receiving stolen property, and larceny of an automobile. At the present time, however, he has paid his debts to society on all of these charges. Nevertheless, the Petitioner has not yet had his civil rights restored, although he is apparently eligible to apply therefor. The Petitioner contends that he has been rehabilitated, and thus is now eligible to be licensed as a repossessor. He is married and has two children. He is buying a home in Tampa. He has been steadily employed since 1976, and is now working as repossessor in Tampa. His employers have found him to be reliable and trustworthy employee. The Petitioner has not been in any trouble with the law since 1968, and he has a satisfactory work record since his release from prison. The Petitioner has been honest and loving with his wife and family. He is a changed man now, his wife contends, and is a good family provider. The Petitioner's Parole Officer confirms that his life seems to have become stabilized now.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of James A. Detzel for a Class E (Repossessor) License, be denied. THIS RECOMMENDED ORDER entered on this 5 day of February, 1982. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1982. COPIES FURNISHED: Richard S. Blunt, Esquire 112 South Armenia Avenue Tampa, Florida 33609 James V. Antista, Esquire Room 106 Gray Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE JAMES A. DETZEL, Petitioner, vs. DOAH CASE NO. 81-2847S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Leonard McMullen (McMullen), has been employed by the County as a correctional officer since June 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of McMullen. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that McMullen had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified McMullen and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, McMullen filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, McMullen denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a preemployment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of McMullen on March 8, 1985, at which time he admitted limited use of marijuana some 9 years previously. Here, the proof demonstrates that McMullen's use of marijuana was indeed limited, probably numbering little more than twice, and that his use occurred during high school, when he was 17 or 18 years of age. Since that time, McMullen has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of McMullen's background, that McMullen possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 13 years ago. The Commission's action is unwarranted. Here, McMullen, born January 7, 1958, used marijuana approximately two times, the last time being over 13 years ago when he was 17 or 18 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Following his graduation from high school, McMullen joined the U.S. Army, where he served honorably for three years as a military policeman. He enjoyed a secret security clearance, and his periodic drug screenings met with negative results. Following his discharge from the service, McMullen was employed for a few months by Gulf Life Insurance Company, and then by Florida Power & Light Company until he was employed by the County. To date, McMullen has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years, and was recently promoted to the rank of corporal. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, McMullen has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Leonard McMullen, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on September 21, 1981, and was issued certificate number 02-29370. Respondent made a total of 28 personal telephone calls totalling over $100.00 on her state telephone credit card issued by her employer, the Florida Department of Law Enforcement (FDLE), between January 31, 1985 and May 31, 1985. At the time she made these calls, she knew it was wrong. She falsified telephone credit card bills by signing or initialing the bill and writing case numbers on the bills to conceal the fact that these were personal phone calls. It is FDLE policy that persons making telephone credit card calls must sign or initial the bills to verify that the calls were made on state business. During January, 1985, the FDLE was brought into an interagency investigation of pornography in the Pinellas, Pasco, Hillsborough and Manatee County area. Respondent was assigned to assist an interagency task force that had been established for this investigation. She was employed as a Special Agent with the FDLE at the time. Respondent developed, and was in control of, a confidential informant during this investigation who was employed at a bookstore which was involved in this investigation. Although she initially denied to other law enforcement officers working the pornography case, and later to the State Attorney's Office, that she had ever received from the confidential informant mail which was delivered to the bookstore, she was, in fact, getting mail from the confidential informant. The informant was, in some instances, opening the mail received at the bookstore and delivering information to the Respondent from such mail. In other instances, the mail was delivered unopened to the Respondent by the confidential informant, and she would steam open the envelope and read the contents. During the course of an investigation into her actions, Respondent made repeated material misstatements to fellow law enforcement officers by leading them to believe that the informant was simply opening the mail and providing her information, when in fact, she actually received mail from the informant on numerous occasions and opened it herself. When her actions were discovered, she attempted to cover up what she had done by having the mail delivered back to the bookstore. From March to July, 1986, Respondent made repeated material misstatements to the State Attorney's Office, her supervisors at FDLE, and an inspector at FDLE, about mail she had received in the pornography investigation. Due to concerns of the State Attorney's Office that evidence obtained in the pornography investigation may have been tainted due to it having been obtained illegally from mail delivered to the bookstore, Respondent's supervisor directed her in April, 1986, to prepare a memorandum explaining all of the mail she had received from the confidential informant. Her memorandum stated that she had only received mail on two occasions in August, 1985. In fact, she had received mail on many more occasions. FDLE procedures require an agent to write a report within five to fifteen days of receiving any evidence, and to tag such evidence and make it a part of such report by reference with an exhibit number. Respondent failed to follow these procedures, resulting in inaccurate and misleading reports to her supervisors and to the State Attorney's Office concerning this matter. The credibility of law enforcement officers is critical to their ability to carry out their responsibilities, and the Respondent's actions in the pornography investigation demonstrate her lack of credibility.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 19th of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX DOAH CASE NUMBER 88-4737 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Adopted in Finding of Fact 2. 6-7. Adopted in Finding of Fact 3. 8-10. Adopted in Finding of Fact 4. 11-12. Adotped in Finding of Fact 5. 13-18. Adopted in Finding of Fact 6. 19-20. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 24-27. Rejected as unnecessary and cumulative. 28. Adopted in Findings of Fact 6 and 7. 29-31. Adopted in Finding of Fact 5. 32-33. Adopted in Finding of Fact 2. 34. Rejected as unnecessary. 35-37. Adopted in Finding of Fact 5. 38. Adopted in Finding of Fact 8. Rulings on the Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Adopted in Finding of Fact 1. A1. Not a proposed Finding of Fact. A2-13. Rejected in Findings of Fact 4-7 and otherwise as simply a summary and argument on the evidence and not a proposed Finding of Fact. B1-2. Adopted in Finding of Fact 2. C. Not a proposed Finding of Fact. COPIES FURNISHED: Elsa L. Whitehurst, Esquire P.O. Box 1489 Tallahassee, FL 32302 Maria Scruggs-Weston 1825- 45th Street, South St. Petersburg, FL 33711 Jeffrey Long, Director Criminal Justice standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P.O. Box 1489 Tallahassee, FL 32302
