The Issue Whether Respondent committed the offenses set forth in an Amended Administrative Complaint dated January 31, 2003, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Dieguez is a certified law enforcement officer employed by the Sweetwater Police Department. As such, he holds a position of high trust. Dieguez abused that trust by failing to maintain good moral character. Specifically, he sexually abused a minor over a period of years, and lied under oath to law enforcement officers investigating the abuse. For almost a decade, Dieguez was in a relationship of trust with a young girl (the victim). Dieguez abused that trust by taking advantage of his access to the victim to sexually violate her on repeated occasions, beginning when she was well below the age of consent. Dieguez maintained the victim's silence by virtue of his position of authority over her. More specifically, at all times material to this case, Dieguez is the primary breadwinner for the victim, the victim's mother, and the victim's two siblings. Dieguez alternated acts of kindness and generosity toward the victim with threats and intimidation. Dieguez also left a paper trail which, for reasons set forth below, provided clear and convincing evidence of his guilty knowledge of his improper conduct toward the victim. Dieguez created at least three documents which he referred to as "contracts" between himself and the victim. The contracts first came to light on February 15, 2001, when the victim's mother accompanied her daughter to the Metro-Dade Police Department to lodge an abuse complaint against Dieguez. At that time, the victim told investigators, "He wrote me contracts, like stating something in return, like touching my vagina, having sexual intercourse, or me to ejaculate him." In the context of Dieguez' relationship with the victim and, more significantly, in considering the "contracts" as a whole, it is clear that the contracts were part of an ongoing scheme by Dieguez to induce the victim to continue to submit to him sexually, and to maintain silence about the abuse. Within days of filing the complaint, the victim's mother had a change of heart. Henceforth, and through the date of the hearing, she impeded the investigation by actively discouraging her daughter from cooperating with investigators. Dieguez was nevertheless questioned under oath about the abuse allegations by duly-authorized investigating officers. He denied any improper conduct towards the victim. In May 2001, three documents matching the victim's description of the "contracts" were found in the trunk of Sweetwater police vehicle number 953. Specifically, the documents were located underneath a lining attached to the spare tire compartment. Vehicle number 953 had previously been assigned to Dieguez. The handwriting on the documents was matched to Dieguez. The "contracts," which were admitted into evidence without objection, speak loudly regarding the improper nature of Dieguez' relationship to the victim. At the time of the final hearing, the victim, then 19, testified in support of Dieguez, claiming that she had lied to investigators, and to friends, about having been abused by him. By the time of the hearing, the victim had, as one of the investigating officers put it, "flipped twice" as to whether she had in fact been abused by Dieguez. The victim was accompanied to the hearing by an attorney, who entered an appearance on her behalf but made no motions. The victim's mother was also present with Respondent. The trier-of-fact carefully observed the young woman's demeanor under oath and has no hesitation in saying that her purported denial of abuse served instead to corroborate the "contracts" in which Dieguez documents the true and improper nature of his conduct toward the victim. The victim was plainly in distress as she gave her testimony. She claimed, unpersuasively, not to remember details of her allegations, nor of the investigation itself. She claimed not to have spoken with her mother about her allegations against Dieguez at any time after February 15, 2001. In fact, she denied speaking to anybody about the allegations, including the attorney who was present on her behalf. Under all the circumstances, the "contacts" in Dieguez' handwriting affirmatively and compellingly demonstrate the unreliability of the victim’s in court denial of abuse. Florida law requires, as a minimum qualification for its law enforcement officers, that they be of good moral character. Florida law further provides that officers who lack good moral character may be stripped of their license to serve in law enforcement. Making a false statement under oath is an independent ground upon which a law enforcement officer's license may be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dieguez's law enforcement certificate be permanently revoked. DONE AND ENTERED this 12th day of April, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teri Guttman Valdez, Esquire 1550 Madruga Avenue, Suite 323 Coral Gables, Florida 33146 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive. Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978. Respondent resigned this position on or about October 22, 1982. On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts. A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982. During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand. The area in which the struggle occurred consisted of loose dirt and gravel. Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding. Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present. The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform. After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car. Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle. Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual. Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance. During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of January, 1984.
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 At all times relevant hereto, Respondent was certified as a law enforcement officer by the CJSTC. On March 29, 1987, He was employed by the City of Clearwater in the uniform patrol division. Respondent graduated from the police academy in 1985, and served one and one-half years with the Belleair Police Department before being hired by the Clearwater Police Department. On the morning of March 29, 1987, while on patrol in a City of Clearwater police car, Respondent drove into the driveway of Lisa Scholl, a young woman occupying that residence. Ms. Scholl heard the engine of a car running in her driveway and came out of the house to inquire why the police car was there. At about the same time, Respondent received a call to investigate a complaint. He told Ms. Scholl he had stopped because her front door was open and that he had to leave to answer the call received on his radio. As a matter of fact, Respondent, who was having marital problems at the time, was intending to ask Ms. Scholl for a date. Respondent had never met Ms. Scholl but had accompanied another police officer to Ms. Scholl's residence some months earlier and was aware of who she was and where she lived. Ms. Scholl surmised Respondent intended to ask her for a date before he received the call on his radio and departed. Shortly thereafter it started raining rather hard. Ms. Scholl glimpsed a man in a yellow slicker crossing the woods alongside her house and became concerned that some criminal activity was happening in her vicinity. She then walked into her bathroom where she saw the face of a man peering through the jaloused window of her bathroom. She screamed, and the man wearing a yellow raincoat ran through the woods toward a police car parked down from her house. Ms. Scholl then called her cousin to come over to her house and she called the police who sent an officer to investigate. During the course of the investigation, Ms. Scholl identified Respondent as the individual she initially spoke to while parked in her driveway and the man she observed peering through her bathroom window. When questioned, Respondent ultimately admitted that he had looked through the window to Ms. Scholl's bathroom but did so only for the purpose of seeing if there was another person in the house. Respondent acknowledged that he had done a stupid thing in looking through a window into Ms. Scholl's home, but contended that no immoral conduct was intended by this act and that his sole purpose was to attempt to learn if some other man was in the house with Ms. Scholl. Respondent's denial of any attempt at voyeurism is supported by Exhibit 2, a psychological evaluation of Respondent. This evaluation found Respondent to be psychologically competent in all respects; a conscientious, hard working individual with a high sense of responsibility and loyalty; with none of the criteria for voyeurism; and highly unlikely to be involved in similar situations in the future.
The Issue This is a case in which, by Administrative Complaint served on Respondent on September 17, 1985, the Criminal Justice. Standards And Training Commission seeks to revoke Certificate Number 502-3415, which was issued to Respondent on November 5, 1982. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards And Training Commission on November 5, 1982, and was issued Certificate Number 502-3415. During December of 1984 and January of 1985, the Respondent was employed as a correctional officer at the Polk Correctional Institution. On January 29, 1985, Polk County Sheriff's Deputy Lawrence Annen and Department of Corrections Inspector Clayton Lambert served a search warrant and conducted a search inside the Polk County, Florida, residence of the Respondent and his wife. Upon the arrival of Deputy Annen and Inspector Lambert at the Respondent's home on January 29, 1985, the Respondent was present and was advised of the warrant and of his constitutional rights under the Miranda decision. The Respondent indicated that he understood his rights. Subsequent to the foregoing, the Respondent led then Deputy and the Inspector to a quantity of cannabis, which was present inside Respondent's residence. The Respondent pointed out the cannabis and stated "here it is" and "this is all I have." During the execution of the search warrant, the Respondent also stated that he and his wife had purchased the marijuana for $25 an ounce or baggie. The cannabis was seized by Deputy Annen as evidence and was later submitted to the Florida Department of Law Enforcement crime laboratory for analysis. It was confirmed by scientific analysis to be 9.1 grams of cannabis. On January 31, 1985, the Respondent was again advised of his constitutional rights under the Miranda decision by Inspector Lambert. The Respondent thereafter admitted smoking cannabis because it relaxed him and admitted giving his wife money with which to buy cannabis. The Respondent readily admitted, during the course of the formal hearing in this case, that he had unlawfully possessed and used cannabis and had furnished the funds for his wife to purchase cannabis. The Respondent was adjudged guilty, on March 20, 1985, as to the criminal charge of Possession of Less Than Twenty Grams of Cannabis before the County Court, in and for Polk County, Florida.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards And Training Commission issue a Final Order revoking Respondent's Certificate Number 502-3415. DONE AND ORDERED this 16th day of May, 1986, at Tallahassee, Florida. MICHAEL M. 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 16th day of May, 1986. APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner Paragraph 1 of the Petitioner's proposed findings consists of a summary of the procedural history of this case. It is rejected as a finding of fact, but is incorporated in substance into the introductory information in this Recommended Order. The following paragraphs of Petitioner's proposed findings are all accepted with a few minor editorial changes: 2, 3,-4, 5, 6, 7, 8, 9, 11, and 12. The substance of paragraph 10 of Petitioner's proposed findings is accepted with the deletion of unnecessary subordinate details. Findings proposed by Respondent The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Harry C. Frier Post Office Box 2062 Lakeland, Florida 33802 Daryl G. McLaughlin, Director Criminal Justice Standards And Training Commission Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Savage is a certified correctional officer in the State of Florida. As such, he holds a position of high trust. Savage abused that trust by lying on his application for employment as a court bailiff in Palm Beach County. The deception came to light between March 4, 2002, and April 15, 2002, when Elizabeth McElroy (McElroy) in her official capacity as background investigator for the Palm Beach County Sheriff’s Office, attempted to verify information provided under oath by Savage, and to search law enforcement databases to assure that he had been truthful in claiming that he had no criminal record. Instead, McElroy's investigation revealed that Savage failed to disclose two arrests, one of which involved the use of a firearm. Florida law requires, as a minimum qualification for its correctional officers, that they be of good moral character. Florida law further provides that officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement. The public has every right to expect that those who work in law enforcement will, at a minimum, tell the truth under oath. Individuals can be rehabilitated and can go on to occupy positions of trust, but that decision is to be made by duly authorized licensing authorities acting upon complete information. It should not be necessary for a background investigator to have to unearth information which the individual concealed on an employment application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Savage's correctional certificate be permanently revoked. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Savage 7547 Edisto Drive Lake Worth, Florida 33467
The Issue The issue presented is whether Petitioner’s application for an educator’s certificate should be granted.
Findings Of Fact Petitioner is 31 years old. He has lived in Florida for the past 11 years. Petitioner works at a rehabilitation center that provides services to individuals with substance abuse problems. He has worked in that job for about a year. As a client advocate, he works with children 16 years of age and older. For ten years Petitioner has served as a volunteer basketball coach in the Flagler County Police Athletic League (PAL). He currently coaches the high-school-aged girls' travel team. Over the years he has coached boys and girls in the fourth grade through the twelfth grade. For three or four years Petitioner has been a volunteer in a church-based youth ministry program. He supervises, mentors, and provides encouragement to the children in the program. Petitioner applied for an educator’s certificate so that he can coach basketball at the high school level. He does not need the certificate to continue coaching in the PAL, but he needs the certificate to work or even volunteer as a high school coach. Petitioner was employed as a certified correctional officer at Tomoka Correctional Institution (TCI) for about four years, until September 23, 2007. TCI is a state prison in Volusia County, Florida, operated by the Florida Department of Corrections (DOC). As Petitioner was driving to work at TCI on September 23, 2007, he saw a team of DOC investigators conducting a drug interdiction at the facility. He pulled his car over to the side of the facility’s entrance road and threw a small package out of the car window before proceeding to the parking lot. TCI staff saw Petitioner throw the package from his car and informed the DOC investigators. The DOC investigators went to the area and recovered the package. The package contained marijuana. It was in a plastic baggie and had been tightly wrapped in paper towels and then covered with medical tape. The manner in which the marijuana was wrapped is consistent with the most common way that drugs are packaged when they are smuggled into a prison. The package was small enough and flat enough to be hidden in a man's boot or around his crotch area and not be detected during a cursory pat-down search. After Petitioner was told by DOC investigators that a drug-sniffing dog alerted to his car, he voluntarily spoke to the investigators and admitted that the package found next to the entrance road was thrown there by him, that he knew it contained marijuana, and that he threw it out of his car when he saw the drug interdiction team at the facility. However, Petitioner denied that he planned to sell or give the marijuana to an inmate or anyone else “inside the walls” of the facility. Petitioner told the DOC investigators, and he testified at the final hearing, that he received the marijuana the day before the incident while he was at a fundraising car wash for his PAL basketball team. The children on the basketball team were at the car wash when the marijuana was delivered, as were Petitioner’s children. Petitioner told the DOC investigators, and he testified at the final hearing, that his sister-in-law called him before the car wash and asked him to help her by allowing a friend to bring marijuana for her to Petitioner at the car wash. She said she would later pick it up from Petitioner. Petitioner told the DOC investigators, and he testified at the final hearing, that he did not give much thought to her request because she was a family member and one should always help out family members. When the marijuana was delivered, Petitioner was at his car which was a distance away from where the cars were being washed. He wrapped the marijuana in paper towels and medical tape, which he had in his car from a prior injury, so that his children, who were helping wash the cars, would not see it when he drove them home in his car. His sister-in-law did not come to pick up the marijuana after the car wash. He forgot that the marijuana was in his car until he was close to work the next day. When he saw the interdiction team at TCI, he stopped and threw the marijuana out of the car. He then drove into the parking lot, parked his car, and went in to work. Petitioner was immediately arrested after his confession to the DOC investigators. He was charged with possession of more than 20 grams of marijuana and introduction of contraband into a state prison. Both of those charges are felonies, but for reasons not explained in the record, the State Attorney elected not to prosecute either of the charges. Petitioner was immediately fired from TCI after his arrest, and he subsequently lost his certification as a correctional officer. Petitioner testified that he understands that what he did was wrong, that he is sorry for what he did, and that he will never do it again. This testimony appeared to be sincere. The character witnesses who testified on Petitioner’s behalf at the final hearing all testified that Petitioner is a good person and a good role model for the children that he coaches and mentors; that this incident was out of character for Petitioner; and that they have no concerns about Petitioner working with children. This testimony was sincere and clearly heartfelt. Although the DOC investigators weighed the marijuana while it was still wrapped and determined that it weighed 37.8 grams, they did not weigh the marijuana itself after removing it from its packaging. There is no competent evidence in this record as to the weight of the marijuana. Accordingly, it cannot be determined whether the amount of marijuana Petitioner threw from his car would have constituted a felony or a misdemeanor. Similarly, there is no competent evidence in this record as to whether Petitioner was on the grounds of a state prison when he threw the marijuana from his car. There are no security fences, no checkpoints, and no security towers before one reaches the signage for the correctional facility and its attendant structures. Petitioner believed that he would have been on prison property if he had passed by the signage for the facility and had crossed the road surrounding the perimeter of the prison. One of the DOC investigators testified that the property boundary was several hundred yards before the entrance sign. The photographs admitted in evidence visually suggest that the correctional facility's property commences beyond the sign and beyond the location where Petitioner threw out the marijuana. There is no competent evidence as to whether Petitioner was on state property with the marijuana in his possession. Petitioner denies that he intended to introduce contraband into the correctional facility. Rather, his actions in throwing the marijuana out of his car at a location he believed to be outside of the facility's property suggest he did not intend to bring the contraband onto the grounds of the facility. Petitioner has met the qualifications for obtaining an educator's certificate to enable him to coach basketball on the high-school level.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Petitioner’s application for an educator’s certificate. DONE AND ENTERED this 2nd day of December, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 2nd day of December, 2009. COPIES FURNISHED: Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Sidney M. Nowell, Esquire Justin T. Peterson, Esquire Nowell & Associates, P.A. 1100 East Moody Boulevard Post Office Box 819 Bunnell, Florida 32110-0819 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Mariam Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
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, Lydia Diaz (Diaz), has been employed by the County as a correctional officer since February 26, 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 Diaz.3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 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 Diaz 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 Diaz and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You unlawfully and knowingly obtained or used or endeavored to obtain or to use clothing, the property of Burdines with the intent to either temporarily or permanently deprive the owner of a right to the property or a benefit there from or to appropriate the property to your own use or to the use of any person not entitled thereto. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Diaz filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Diaz 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, Diaz filed an application with the County for employment as a correctional officer on October 8, 1987. Her application disclosed that she had used marijuana, the last time being in July 1987, and that she had been arrested for petit theft in 1979, but had not committed the offense. Regarding her use of marijuana, the proof demonstrates that Diaz did use marijuana on one occasion in July 1987. At the time, Diaz had been out to dinner with some girl friends, after which they stopped by an acquaintance's home to socialize. Upon arrival, someone was smoking marijuana and asked her to have some. Diaz initially refused, but upon the insistence of the group took a puff and passed it on to someone else. Other than this limited contact with marijuana, Diaz has only used the substance twice in her life, and that occurred at home, during the course of one evening, with her first husband in 1975. At that time, Diaz smoked marijuana, at her first husband's request, while they watched television that evening. But for this limited use, Diaz has not otherwise used marijuana or any other controlled substance. Regarding her arrest in March 1979 for petit theft, the proof demonstrates that such charges were dismissed and that Diaz did not commit the offense. 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 her 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 she currently possesses the requisite moral character for employment. Here, Diaz, born November 2, 1955, used marijuana in July 1987, only 7 months before her employment by the County as a correctional officer. Such use was, by the County's own interpretation of the rules, proximate to her employment and should have resulted in the rejection of her application. Fred Crawford, then Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, made, however, an exception in Diaz' case, since her mother was an employee of long standing with his office, and employed her on the condition that she refrain from the use of any controlled substance and that she excel in her performance. Diaz has satisfied both conditions. Following her employment in February 1988, Diaz was graduated first in a class of 40 correctional officers from the academy. She was certified by the Commission on June 17, 1988, for completion of the 675-hour basic correctional officer course, and on October 13, 1988, for the 40-hour advanced report writing and review course. To date, Diaz has been employed by the County as a correctional officer, a position of trust and confidence, for over one year. Her evaluations have been 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. Apart from her exceptional performance as a correctional officer, Diaz has other traits that reflect well on her moral character. Currently she is remarried and the mother of three children. By those who know of her, she maintains a good home and is an excellent parent. In addition to her other responsibilities, she attends night school at Miami-Dade Community College, where she has made the Dean's list for having achieved all "A's" the last two terms. Diaz is also current on all her obligations, and enjoys a good credit reputation in the community. While Diaz' use of marijuana in July 1977 was proximate to her employment by the County, and should have resulted in the rejection of her application, this proceeding is a de novo hearing on her application for certification, and her qualifications are, therefore, evaluated as of the date of hearing. Here, her use of marijuana two times, the last time being almost 2 years ago, is not proximate or frequent within the meaning of rule 11B- 27.0011(2), or persuasive evidence of bad moral character.4/ Rather, Diaz has demonstrated, on balance, that she 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, Lydia Diaz, 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.
The Issue This is a case in which, by Administrative Complaint served on Respondent on September 24, 1985, the Criminal Justice Standards and Training Commission seeks to revoke Certificate Number C-8690, which was issued to Respondent on April 10, 1981. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards and Training Commission on April 10, 1981, and was issued Certificate Number C-8690. Sometime on February 24 or 25, 1984, while the owners were away from home, the Respondent, Alton L. Moore, without the permission of the owners, broke into the home of Mr. and Mrs. Fred McElroy at the KOA Campground in Starke, Florida, and stole various items of personal property belonging to Mr. and Mrs. Fred McElroy, including cash in the amount of $600 or $700, a canvas bag, some checks and business records, and some jewelry. Alton L. Moore broke into the home for the purpose of stealing personal property and had no intention of returning the stolen property.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a Final Order revoking Respondent's Certificate Number C-8690. DONE AND ORDERED this 16 day of June 1986 in Tallahassee, Leon County, Florida. MICHAEL M. 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 16th day of June 1986. APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Paragraph 1: Accepted as background and introduction information. Paragraph 2: Accepted. Paragraphs: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14: Rejected as constituting unnecessary subordinate details (even though supported by competent substantial evidence). Consistent with these proposed findings, I have made the essential finding that the Respondent committed the crimes described in these paragraphs. Rulings on Proposed Findings of Fact Submitted by Respondent (None were submitted.) COPIES FURNISHED: Daryl G. McLaughlin, Director Criminal Justice Standards and Training Commission Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Mr. Alton L. Moore Route 7, Box 544 Lake City, Florida 32055
Findings Of Fact On August 10, 1988, Metropolitan Dade County Department of Corrections and Rehabilitation, as the employing agency, applied for certification as a correctional officer on behalf of petitioner, Eddie Lewis (Lewis). Accompanying such application was an affidavit of compliance, dated August 10, 1988, signed by the Director of Metropolitan Dade County Department of Corrections and Rehabilitation (Department of Corrections) which comported with existing law, and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lewis had met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provisions of section 943.13 is the requirement that the applicant of good moral character. 1/ By letter dated November 7, 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission) notified Lewis and the Department of Corrections that his application for certification as a correctional officer was denied for lack of good moral character because: You made an intentional, unlawful threat by word or act, with a deadly weapon, a shotgun, but without intent to kill, to do violence to Walter Harrell, coupled with an apparent ability to do so, and did an act which created in Walter Harrell a well-founded fear that such violence was imminent. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a Section 120.57(1), Florida Statutes, hearing. In his request for hearing, Lewis specifically denied that he had committed any of the acts which the Commission contended demonstrated a lack of good moral character. The Commission forwarded Lewis' request for hearing to the Division of Administrative Hearings to conduct a formal hearing. At hearing, the Commission offered no proof that Lewis had committed any of the acts contained in its letter of denial, or which otherwise rendered questionable the prima facie showing of good moral character demonstrated by Lewis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order approving Lewis' application for certification as a correctional officer. DONE AND ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida. 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 18th day of April 1989.
