The Issue The issue presented is whether or not Respondent is guilty of misconduct as alleged in the Administrative Complaint dated March 27, 1989, and, if so, what penalty should be imposed.
Findings Of Fact On October 14, 1968, Respondent, was certified by the Criminal Justice Standards and Training Commission, was issued Certificate Number GF-101468 and is currently certified by the Criminal Justice Standards and Training Commission as a law enforcement officer. On Friday, March 11, 1988, Respondent reported to work at the Metro- Dade Police Department, although ill and exhausted. Respondent had been suffering from an acute bronchial and strep throat-type condition prior to and including March 11, 1988 and had taken medication to combat the illness. Respondent left work early on March 11, 1988 with approval of his supervisor and, although feeling conjested, stopped by Sears department store on his way home to inspect a miniature freezer for his wife's vending business. He purchased the freezer on his Sears credit card which he had with him. Respondent, who was dressed in plain clothes, was carrying a shiny, leather, black briefcase with no handle which weighed a considerable amount and was cumbersome. The briefcase contained his weapon, handcuffs, bullets and miscellaneous paperwork. Respondent, after purchasing the freezer, did some browsing, as is his custom, looking for gadgets. The security personnel for Sears noticed Respondent and began monitoring his activities. At some point Respondent picked up a screwdriver item. Respondent placed the screwdriver under his arm, between the briefcase and his body, to free his hand in order to look at other items. He went to an available check out counter and paid cash for the screwdriver. He returned to the merchandise area to look over some retractable clothesline which had caught his attention for use in his townhouse. He selected the item but was having a difficult time handling his briefcase and the slippery, plastic carded clothesline. He remembered that he needed some T- shirts to wear under his uniform. Again, to free a hand to look at the T- shirts, he placed the clothesline in the bag which contained the screwdriver with the intent of paying for the clothesline at the time he purchased the T- shirts. Respondent left the hardware area of the store in search of the T- shirts when he began to feel nauseous. Fearing that he would vomit in the store, he decided to step outside. In his distraught condition, Respondent stepped outside the store without paying for the clothesline. While Respondent was attempting to compose himself and almost immediately after he walked out of the store, he was approached by Fred Ponce of Sears security. Mr. Ponce identified himself to Respondent and searched Respondent's bag of purchases which contained the clothesline. Respondent then realized he had, unwittingly, not paid for the item and remarked concerning the mistake. The item in question had a retail value of $7.99, at the time of the incident, and Respondent had the cash and credit with him in an amount sufficient to cover the purchase. Respondent was observed to be nervous, sweating and not looking well. Respondent was asked by Mr. Ponce to accompany him back to the security office inside the store, which Respondent did without incident. Once inside the security office Respondent identified himself as a police officer, requested water and asked to speak to the store manager, Mr. Stephens. After speaking to the store manager, Respondent notified the Metro Dade Police Department about the incident. Prior to leaving, Respondent was presented with a form, incident report for him to sign. The form language contained the following statement, "I had no intention of paying for this article." Respondent did not read the form carefully since he was under the impression, from what he was told by Sears' security personnel, that the form was merely an administrative report which he was required to acknowledge before he left. Feeling ill, distressed about the event and anxious to return to his work to speak with his supervisors, Respondent signed the form. Respondent then returned to the Metro-Dade Police Department to personally discuss the incident with his superiors. Respondent is a 21 year veteran of the Metro-Dade Police Department. At the time of the incident, he was assigned to the warehouse section of the Property and Evidence Bureau and was responsible for the accountability of millions of dollars of confiscated property including cash, drugs and jewelry. In the 3 years Respondent was so assigned, all inventory audits, which were done on a quarterly basis checked out. Respondent has a reputation in the community for honesty and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Training Commission issue a Final Order dismissing the charges alleged in the Administrative Complaint entered in this case. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February 1990. JANE C. HAYMAN 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 15th day of February, 1990.
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
The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 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 The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
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, Arvis Bethel (Bethel), 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 Bethel.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 Bethel 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 Bethel 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. You have unlawfully committed an assault and battery on Louie F. Clayton. You have unlawfully and knowingly purchased stolen property. Following receipt of the Commission's letter of denial, Bethel filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Bethel 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 Bethel on October 7, 1985, at which time he divulged that he had purchased stolen property a few times, so long ago as to not exactly remember when; had used marijuana, although he could not recall the number of times, 12- 13 years before the interview; and had tried cocaine twice, 3-4 years before the interview. Also conceded by Bethel was his conviction in 1965 of assault and battery. Notwithstanding the County's conclusion, based on its investigation and analysis of Bethel's background, that Bethel possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, the proof demonstrates that at some time prior to 1966, the exact date not being known due to the passage of time, Bethel did receive a few auto parts which, although he did not know at the time he received them, were apparently stolen property. At the time, Bethel and his friends raced cars and in the process of maintaining their cars traded parts. Such was the circumstance under which Bethel, who was then not more that 20 years of age, having been born October 1, 1944, received parts which later proved to have been stolen. On June 2, 1965, Bethel, then 20 years of age, was convicted in the Criminal Court of Record, Dade County, Florida, of assault and battery, a misdemeanor, and served four months in the Dade County Jail. That conviction, which occurred almost 25 years ago, arose as a consequence of a fight Bethel had with one Louie F. Clayton. On September 26, 1986, Bethel entered the United States Army where he served honorably for over six years. By the time he was discharged on February 9, 1973, he had been promoted to the rank of staff sergeant, had served two tours of duty in Vietnam, and had been awarded, among other indicia of distinguished service, the Army Commendation Medal, the Bronze Star Medal, and Good Conduct Medal. Admittedly, while in Vietnam, Bethel used marijuana, however, since that time, a period of over 16 years, he has not used it. Following his discharge from the service in 1973, Bethel was employed by Florida Portland Cement Company, and was continuously employed by such company, except for the period of July 1976 through January 1977, until it went out of business in 1984. During the period of July 1976 through January 1977, Bethel, along with other employees of Portland Cement, suffered a brief layoff. During that period, Bethel was employed as a corrections officer by the Department of Corrections in Florida City, albeit without certification. The only recent blemish on Bethel's record is his use of cocaine on two occasions in 1981 or 1982, during the course of his divorce. Such conduct is atypical of Bethel's character, and his remorse for having used such substance is credited. In light of the circumstances, such usage is not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Bethel has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three and one- half years. His annual evaluations have ranged from above satisfactory to outstanding, 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. Bethel is now, and has been for some time, a respected member of the community. He is a member of the Veterans of Foreign Wars and the Masons. He has attended Miami Dade Community College where he has amassed 78 semester credits. During the last semester he attended, the winter term which ended March 1, 1986, Bethel carried 18 semester hours of class work, and received a 3.33 grade average out of a possible 4.0. Overall, Bethel 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, Arvis Bethel, 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 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 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 Commissions 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, Marie Elie Davis (Davis), 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 Davis. 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 Davis 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 Davis 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 cocaine and cannabis. You have unlawfully and knowingly committed petty theft. Following receipt of the Commission's letter of denial, Davis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Davis 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 Davis on April 25, 1986, at which time she admitted that she had used marijuana and cocaine, and that she had been arrested in 1979 for shoplifting. Regarding her use of controlled substances, the proof demonstrates that Davis tried marijuana one or two times prior to 1980 and that she tried cocaine one time prior to 1980. Other than these isolated incidents she has not otherwise used controlled substances. Regarding her arrest, the proof demonstrates that in December 1979 Davis was arrested for shoplifting costume jewelry. She pled guilty to the offense of petit theft, and was fined $40. Notwithstanding the County's conclusion, based on its investigation and analysis of Davis' background, that Davis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana and cocaine almost 9 years ago, and her conviction in 1979 of petit theft. The Commission's action is not warranted by the proof. Here, Davis, born September 12, 1958, used marijuana two times and cocaine one time, the last time being almost 9 years ago when she was approximately 21 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. Nor, is her arrest and conviction for petit theft almost 9 years ago current or persuasive evidence of bad moral character. 4/ Currently, Davis has been employed by the County as a corrections officer, a position of trust and confidence, for almost two and one-half years. Her annual evaluations have been 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, Davis 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, Marie Elie Davis, 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, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989.
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
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.
