Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on August 11, 1986, and was issued certificate number 35-86-002-03. From the time of his certification until approximately the end of August, 1987, the Respondent was employed as a police officer with the Tampa Police Department. During an interview with Captain Benny Holder on July 31, 1987, Respondent admitted that he had been using a motor vehicle which he knew was stolen, and that he had failed to report the recovery of this stolen vehicle or take any action to return it to its owner. Additionally, Respondent had lied to his supervisors when he had previously denied any knowledge or use of a stolen vehicle. Respondent lived with his cousin, Christopher Brown, and he allowed Brown to use the vehicle which he knew had been stolen. Debra Flowers also lived with Respondent and Brown, and Flowers reported to Officer Carl Anderson that Respondent had driven the stolen vehicle numerous times. Between approximately September, 1986, and July, 1987, Respondent used, and allowed his cousin to also use, a motor vehicle which he knew had been reported stolen. Respondent took no action to report the recovery of this stolen vehicle. Respondent was terminated from the Tampa Police Department based upon his failure to report the recovery of this stolen vehicle, his use of the stolen vehicle, and his failure to truthfully answer questions about these matters when initially confronted by his supervisors.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 9th day of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Joseph S. White, Esquire P. O. Box 1489 Tallahassee, FL 32302 Gregory E. Harvin 5707 Society Park Boulevard, #A Tampa, FL 33617 Jeffrey Long, Director Criminal Justice standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P. O. Box 1489 Tallahassee, FL 32302
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, Ivan Carrandi (Carrandi), has been employed by the County as a correctional officer since June 17, 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 Carrandi. 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 Carrandi 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 Carrandi and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Carrandi filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Carrandi 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 Carrandi on January 1, 1985, at which time he freely admitted that he had used cocaine and marijuana. Regarding such use, the proof demonstrates that during the years 1980 and 1981, while a student at Miami Dade Community College, Carrandi used marijuana approximately two or three times and cocaine approximately two or three times. He has not, however, otherwise used controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Carrandi's background, that Carrandi possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana and cocaine approximately 8 years ago. The Commission's action is unwarranted. Here, Carrandi, born November 12, 1960, used marijuana two or three times and cocaine two or three times about 8 years ago when he was 20-21 years of age and a student at Miami Dade Community College. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B- 27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Carrandi has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years. His annual evaluations have ranged from satisfactory to 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, Carrandi 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, Ivan Carrandi, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact 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, but not with those of petitioner. 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, Esteban Tabaoado (Tabaoado), has been employed by the County as a correctional officer periodically since September 11, 1984, without benefit of certification. On or about September 9, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Tabaoado. 3/ Accompanying the application (registration) was an affidavit of compliance, dated September 9, 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 Tabaoado 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 Tabaoado 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. Following receipt of the Commission's letter of denial, Tabaoado filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Tabaoado 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. 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 possesses the requisite moral character for employment. 4/ Pertinent to this case, the County undertook a pre-employment interview of Tabaoado on January 31, 1984, at which time he admitted to having used cocaine approximately eight times, the last time being in 1980, and to having used marijuana a few times, the last time being in June of 1983. Thereafter, on September 11, 1984, Tabaoado was employed by the County as a correctional officer, and served satisfactorily until 1986. On December 14, 1986, evidence that Tabaoado had a substance abuse problem surfaced. On that date, Tabaoado telephoned his former supervisor, Lieutenant Lois Spears, a confidante, and advised her that he had been using drugs and did not think he could work that night. Lt. Spears advised Tabaoado not to report for work that evening, but to report the next morning to the administrative offices. The following day, Tabaoado met with Lt. Spears and Ervie Wright, the director of the Department's program services, which include employee counseling. At that time, Tabaoado conceded that he had been abusing cocaine, and Mr. Wright recommended that he seek assistance for his problem. On January 5, 1987, the County terminated Tabaoado's employment as a correctional officer for failure to maintain a drug-free life-style. On October 19, 1987, following Tabaoado's attendance at a drug rehabilitation program, the County re-employed him as a correctional officer. To date, Tabaoado has been so employed for approximately one and one-half years without incident, and his performance has been above satisfactory. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Recently, on January 20, 1989, Tabaoado married Olfuine Tabaoado, who has been a correctional officer with the County for almost three years. According to Ms. Tabaoado, she has never known him to use drugs during the one- year period that she has known him, and Tabaoado has proven to be a good father to her son from a previous marriage. While Tabaoado may have abstained from the use of drugs since his re- employment with the County, or even since January of 1987, the proof is not compelling in this regard. Rather, the proof demonstrates that Tabaoado's use of drugs, at least of cocaine, was frequent and protracted. Here, Tabaoado, born September 2, 1960, to the extent that he would admit it, used cocaine 8 times until 1980 and marijuana a "few times" until 1983. Thereafter, following his initial employment by the County as a correctional officer, he used cocaine to such an extent that by December 14, 1986, he was unable to perform his job and was in need of professional help to address his drug abuse. Such frequent and protracted use on his part does not evidence the requisite good moral character necessary for certification as a correctional officer. Here, Tabaoado chose not to testify at hearing, and there is no competent or persuasive proof to demonstrate that he successfully completed the drug rehabilitation program; when, if ever, he ceased using cocaine; whether he now has an appreciation of the impropriety of his conduct; or whether he can reasonably be expected to avoid such conduct in the future. Notably, on October 5, 1987, prior to his re-employment, Tabaoado underwent another pre-employment interview. At that time, Tabaoado told the interviewer, who had also conducted his first interview, that he had not used any drugs since his last interview on January 31, 1984. Such response was patently false, since he had abused cocaine at least as recently as December 1986. Considering the totality of the circumstances, it is concluded that Tabaoado has failed to demonstrate that he currently possesses the requisite good moral character for certification as a correctional officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Esteban Tabaoado, for certification as a correctional officer be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th 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.
Findings Of Fact The Respondent, Willie A. Owens, was certified by the Criminal Justice Standards and Training Commission on April 27, 1984, and was issued Certificate Number 02-84-002-01. In February, 1985, the Respondent was employed in a training position as a Highway Patrol Officer and had been in that position for about twelve months in February, 1985. T. 64. On the evening of February 10, 1985, the Hillsborough County Sheriff's Officer initiated an investigation into a complaint of involuntary sexual battery alleged to have been committed by the Respondent on February 9, 1985. T. 9-10, 24, 13. (The Respondent has not been charged with this offense in this case.) Pursuant to that investigation, between the hours of 12:30 and 1:30 A.M. on February 11, 1985, Detective David Gee, Hillsborough County Sheriff's Office, accompanied by Lieutenant P. E. Dixon, Florida Highway Patrol, Lieutenant Maxwell, and others, drove to the residence of the Respondent. T. 10, 25. The Respondent came to the door fully dressed and was reasonably alert. T. 18-19. The Respondent was asked if the group could come inside his residence, and he invited them in. T. 25. After the group was inside, Detective Gee stated that the Respondent was a suspect in a sexual battery case. T. 25, 65, 11. Detective Gee then advised the Respondent of his rights pursuant to the Miranda requirements. T. 25, 11-12. The Respondent signed a waiver of rights form and consented to be questioned at that time, and did not ask to have a lawyer present. T. 11-12. During the interview inside, the Respondent and Detective Gee were sitting on a couch. T. 15. The Respondent said that he had had a female companion (the alleged victim) in his home on the night of February 9, 1985, (he was not on-duty) and that she had produced some marijuana that she had brought with her to the Respondent's home. T. 14-15. The Respondent said that he and she smoked two marijuana cigarettes, characterized in this record by one law enforcement witness as a small amount of marijuana. T. 14-15, 29. Detective Gee then looked into an ashtray that was directly in front of him on a coffee table in front of the couch and saw the end of one used marijuana cigarette. T. 15. He asked the Respondent if that were part of the marijuana and the Respondent said yes, it was. T. 15. The used bit of marijuana was very small, the cigarette having been burned all the way to the end of the paper. T. 16-17. There was only one used marijuana cigarette in the ashtray. T. 15. (There is a conflict of testimony as to whether there were one or two remains of marijuana cigarettes in the ashtray. Detective Gee is credited with the more reliable memory of what was in the ashtray since he was the one who took the substance into custody.) Detective Gee then seized the bit of marijuana, which was in his plain view. T. 17. He did not have a search warrant. T. 33. The bit of substance seized by Detective Gee was cannabis or marijuana. T. 15, 16-17, 26-29. Detective Gee had permission to search the residence of the Respondent, but there is no evidence that the Respondent had any other marijuana or any other controlled substance in his possession. T. 34-35, 36-37, 66-67. Detective Gee did not have the substance analyzed to determine chemically if it was cannabis because he did not intend to charge the Respondent with a crime. T. 22. The authorities did not charge the Respondent with any crime connected with the substance found in the ashtray. T. 19-20. The Respondent had possession of the bit of marijuana seized by Detective Gee because he knew what it was and it was under his control and possession in his home, and his female companion was no longer there. Additionally, the Respondent possessed and consumed some small portion of marijuana provided to him by his female companion on February 9, 1985. The record does not contain precise evidence as to the amount, but it may be inferred from the visual evidence and testimony that the amount was substantially less than 20 grams. A law enforcement officer has a duty to enforce laws forbidding the possession and use of controlled substances. T. 30. A Highway Patrol Officer normally is assigned alone in a car, without direct supervision. T. 30-31. Such an officer may, on occasion, have a duty to seize controlled substances and destroy the same if a charge of illegal possession or use is not to be filed. T. 32. Saving the controlled substance for personal use would be a violation of that duty. Id. In such event, it is likely that there would be little complaint from the motorist from whom the controlled substance was seized. There have been no complaints concerning the work performed by the Respondent while employed by the Highway Patrol. T. 33. He is considered to be honest and trustworthy by reputation. T. 59-60.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order finding that the charge of a lack of good moral character has not been proven, that the law enforcement certificate issued to the Respondent, Willie A. Owens, not be revoked, and that the administrative complaint be dismissed. DONE and RECOMMENDED this 27th day of April, 1987 in Tallahassee, Florida. WILLIAM C. SHERRILL, 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 27th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4141 The following are rulings upon proposed findings of fact; by number, which have been rejected in this recommended order. Findings of fact proposed by the Petitioner: 4-5. It appears that the Respondent was advised of the purpose of the visit after the group had entered, but the fact is not important to the result in the case. 8-9. It is true that both Detective Gee and Lieutenant Dixson have had significant experience in the identification of cannabis, but the proposed finding is subordinate. 9. The testimony of Detective Gee, that the remains of only one cigarette was in the ashtray, is adopted in this recommended order. 11. Rejected as not credible. Findings of fact proposed by the Respondent: Two cigarettes were involved initially. While possession originated with the Respondent's companion, the Respondent then also possessed the cannabis. Rejected as not credible and contrary to the evidence. 8-9. The testimony of the Respondent (admission), Lieutenant Dixson, and Detective Gee was sufficient to establish the character of the substance as cannabis. 10. The evidence cited to support this proposed finding concerning an act of bravery has been ruled inadmissible. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Marvin P. Jackson, Esquire 400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603 =================================================================
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on September 21, 1981, and was issued certificate number 02-29370. Respondent made a total of 28 personal telephone calls totalling over $100.00 on her state telephone credit card issued by her employer, the Florida Department of Law Enforcement (FDLE), between January 31, 1985 and May 31, 1985. At the time she made these calls, she knew it was wrong. She falsified telephone credit card bills by signing or initialing the bill and writing case numbers on the bills to conceal the fact that these were personal phone calls. It is FDLE policy that persons making telephone credit card calls must sign or initial the bills to verify that the calls were made on state business. During January, 1985, the FDLE was brought into an interagency investigation of pornography in the Pinellas, Pasco, Hillsborough and Manatee County area. Respondent was assigned to assist an interagency task force that had been established for this investigation. She was employed as a Special Agent with the FDLE at the time. Respondent developed, and was in control of, a confidential informant during this investigation who was employed at a bookstore which was involved in this investigation. Although she initially denied to other law enforcement officers working the pornography case, and later to the State Attorney's Office, that she had ever received from the confidential informant mail which was delivered to the bookstore, she was, in fact, getting mail from the confidential informant. The informant was, in some instances, opening the mail received at the bookstore and delivering information to the Respondent from such mail. In other instances, the mail was delivered unopened to the Respondent by the confidential informant, and she would steam open the envelope and read the contents. During the course of an investigation into her actions, Respondent made repeated material misstatements to fellow law enforcement officers by leading them to believe that the informant was simply opening the mail and providing her information, when in fact, she actually received mail from the informant on numerous occasions and opened it herself. When her actions were discovered, she attempted to cover up what she had done by having the mail delivered back to the bookstore. From March to July, 1986, Respondent made repeated material misstatements to the State Attorney's Office, her supervisors at FDLE, and an inspector at FDLE, about mail she had received in the pornography investigation. Due to concerns of the State Attorney's Office that evidence obtained in the pornography investigation may have been tainted due to it having been obtained illegally from mail delivered to the bookstore, Respondent's supervisor directed her in April, 1986, to prepare a memorandum explaining all of the mail she had received from the confidential informant. Her memorandum stated that she had only received mail on two occasions in August, 1985. In fact, she had received mail on many more occasions. FDLE procedures require an agent to write a report within five to fifteen days of receiving any evidence, and to tag such evidence and make it a part of such report by reference with an exhibit number. Respondent failed to follow these procedures, resulting in inaccurate and misleading reports to her supervisors and to the State Attorney's Office concerning this matter. The credibility of law enforcement officers is critical to their ability to carry out their responsibilities, and the Respondent's actions in the pornography investigation demonstrate her lack of credibility.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 19th of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX DOAH CASE NUMBER 88-4737 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Adopted in Finding of Fact 2. 6-7. Adopted in Finding of Fact 3. 8-10. Adopted in Finding of Fact 4. 11-12. Adotped in Finding of Fact 5. 13-18. Adopted in Finding of Fact 6. 19-20. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 24-27. Rejected as unnecessary and cumulative. 28. Adopted in Findings of Fact 6 and 7. 29-31. Adopted in Finding of Fact 5. 32-33. Adopted in Finding of Fact 2. 34. Rejected as unnecessary. 35-37. Adopted in Finding of Fact 5. 38. Adopted in Finding of Fact 8. Rulings on the Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Adopted in Finding of Fact 1. A1. Not a proposed Finding of Fact. A2-13. Rejected in Findings of Fact 4-7 and otherwise as simply a summary and argument on the evidence and not a proposed Finding of Fact. B1-2. Adopted in Finding of Fact 2. C. Not a proposed Finding of Fact. COPIES FURNISHED: Elsa L. Whitehurst, Esquire P.O. Box 1489 Tallahassee, FL 32302 Maria Scruggs-Weston 1825- 45th Street, South St. Petersburg, FL 33711 Jeffrey Long, Director Criminal Justice standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P.O. Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent committed the offenses set forth in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on February 23, 1989, and was issued certificate number 03-88-502-07. Respondent was employed as a certified correctional officer by the Broward County Sheriff's Office at the time of the incidents described in the Amended Administrative Complaint. On April 15, 1989, Respondent was operating his automobile on the 67th Street on-ramp to the eastbound lanes of the Palmetto Expressway between 4:00 and 4:30 P.M. Irene Alvarez, Respondent's fiancee, was a passenger in Respondent's automobile. Respondent's automobile, a Toyota Corolla station wagon, was experiencing mechanical difficulties and could not accelerate rapidly. On April 15, 1989, Kayode Eyinfunjowo and Godfrey Brown were travelling together to a soccer game in a Datsun 280-Z that was owned and operated by Mr. Eyinfunjowo. Mr. Eyinfunjowo's car was a two-door hardtop (not a T-top) with darkened windows. When Mr. Eyinfunjowo's vehicle entered the 67th Street on- ramp to the eastbound lanes of the Palmetto Express, Mr. Eyinfunjowo and Mr. Brown first noticed Respondent's vehicle in front of them. Because of the mechanical problems Respondent was operating his vehicle at less than 10 miles per hour. Mr. Eyinfunjowo's vehicle could not pass Respondent's vehicle because the on-ramp was only one lane. As a consequence of the slow rate of speed of Respondent's vehicle and the one lane of traffic on the on-ramp, Mr. Eyinfunjowo was required to drive his car at a much slower speed than he wanted. Once both vehicles were on Palmetto Expressway, Respondent's vehicle continued to travel very slowly in the extreme right hand lane of traffic 1/ and Mr. Eyinfunjowo began to pass Respondent in the adjoining lane of traffic. As Mr. Eyinfunjowo's vehicle began to pass Respondent's vehicle, Mr. Brown rolled down his window, stuck his head and shoulders outside of the car and said something to Respondent. 2/ There is a conflict in the evidence as to what Mr. Brown said. Mr. Brown testified that he merely inquired as to why Respondent was driving so slowly. Respondent testified that Mr. Brown shouted obscenities. This conflict is resolved by finding that the greater weight of the evidence is that Mr. Brown complained to Respondent about being slowed down by his car and made a profane, derogatory comment about Respondent's car. Mr. Brown did not make any verbal threat against Respondent and Mr. Eyinfunjowo did not verbally communicate with Respondent. Neither Mr. Eyinfunjowo nor Mr. Brown displayed any type of weapon during the incident. Respondent testified that Mr. Eyinfunjowo's tailgated him while coming up the on-ramp and repeatedly blew its horn at him, tried to run him off the road. Respondent also testified that the two vehicles were very close together when Mr. Brown shouted at him and that Mr. Eyinfunjowo slammed on his brakes after he passed Respondent. Mr. Eyinfunjowo and Mr. Brown deny that they tailgated Respondent, tried to run him off the road, or slammed on brakes in front of him. The conflict in the evidence is resolved by finding that the more credible testimony establishes that Mr. Eyinfunjowo followed Respondent very closely, blew his horn at Respondent, pulled up close to Respondent's car while Mr. Brown was shouting at Respondent. The more credible evidence is that Mr. Eyinfunjowo did not try to run Respondent off the road and that he did not slam on his brakes after he passed Respondent. After Mr. Brown shouted at him, Respondent did not verbally respond. When Mr. Brown saw Respondent reach for an object, he believed that Respondent was reaching for a weapon and told Mr. Eyinfunjowo to accelerate. Mr. Eyinfunjowo immediately accelerated and began to distance his vehicle from that of the Respondent. The Respondent, who was driving his vehicle at approximately 5 miles per hour, reached with his right hand for a firearm, 3/ removed the firearm from his glove compartment, shifted the firearm to his left hand, and, while steering the car with his right hand, stuck the gun out of the window and discharged the firearm. There is a dispute in the evidence as to whether Respondent shot once or twice. Respondent admits that he shot once. Mr. Eyinfunjowo and Mr. Brown testified that they heard two shots. The greater weight of the evidence and the more credible testimony established that Respondent shot the firearm twice. At the time the shots were discharged, Mr. Eyinfunjowo's vehicle was moving away from Respondent's vehicle and the occupants thereof were very frightened. When the first shot was fired, Mr. Eyinfunjowo's vehicle was between one and two lengths ahead of Respondent's vehicle. When the second shot was fired, Mr. Eyinfunjowo's vehicle was between three and six car lengths ahead of Respondent's vehicle. During this series of events, Mr. Brown's head and shoulders were out of the window. There was also a dispute as to the direction of the shots. Mr. Brown testified that it appeared that the firearm was being aimed at him. Respondent testified that he aimed well to the right of Mr. Eyinfunjowo's vehicle in the direction of a vacant field. The more credible evidence is that Respondent was not attempting to shoot Mr. Brown and that he aimed to the right of Mr. Eyinfunjowo's vehicle. Respondent has had training as a marksman in both his right and his left hand. During his training to become a certified officer, he was qualified as a "Sharpshooter", which is the second highest rating for marksmanship. When Mr. Brown began shouting at the Respondent, Ms. Alvarez who was approximately 2 1/2 months pregnant and had experienced difficulties with her pregnancy, became frightened and began screaming. Respondent testified that he also became frightened and that the only reason he discharged his firearm was to scare off Mr. Eyinfunjowo and Mr. Brown. After the gunshots, Mr. Eyinfunjowo drove away rapidly and stopped on the Palmetto Expressway near 57th Avenue after he saw a Metro-Dade police car. Respondent stopped at this same exit to try to find a telephone to report the incident. As Mr. Eyinfunjowo and Mr. Brown flagged down the police car, Mr. Brown saw Respondent stop his car at a distance and begin to approach them. Mr. Brown testified that Respondent had his gun in hand. Respondent testified that his gun was in the car. The conflict is resolved by finding that Respondent had his gun in his hand when he first saw Mr. Brown after both vehicles had stopped, but that Respondent made no attempt to fire at Mr. Brown or to threaten him with the firearm. Once the police officers were on hand, Respondent identified himself for the first time as a correctional officer. Respondent was not wearing a uniform and he was not driving a marked police car. Respondent cooperated with the police officers at the scene and during subsequent investigation. Although the police officer who conducted the investigation of this proceeding recommended that criminal charges be brought against Respondent, the State Attorney's office declined to prosecute. None of the participants in this incident had been drinking alcohol. April 15, 1989, was a clear, sunny day. Prior to firing his firearm, Respondent did not display his correctional officer badge or attempt to identify himself as an officer. Respondent was not on duty at the times pertinent hereto. Shortly after this incident, Respondent's employment with the Broward County Sheriff's Office was terminated. At the time of the formal hearing, Respondent was operating a restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact contained herein, which finds that Respondent failed to maintain the qualification of good moral character, and which suspends Respondent's certification for a period of one year. DONE AND ORDERED this 30th day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of April, 1992.
Findings Of Fact On March 23, 1981, the Petitioner, Isidro R. Crucet, applied to the Respondent, Department of State, for licensure as a Class "D" (unarmed) and Class "G" (armed) security guard. The application for Class "D" and "G" licensure was denied on September 23, 1981, by the Director of the Division of Licensing pursuant to Section 493.306(2)(b)(1), 493.309(1)(e), 493.319(1)(a), (c), (g) and (p), Florida Statutes. On October 6, 1981, the Petitioner Crucet requested a hearing on the licensure denial. The basis for the Department's denial was the Petitioner's guilty plea on April 24, 1981, on a charge of carrying a concealed weapon following an information being filed against him in Dad County Circuit Court on April 5, 1981, which alleged violations of Section 790.01, Florida Statutes, carrying a concealed firearm, and Section 790.10, Florida Statutes, improper exhibition of a dangerous weapon. Following his guilty plea, the Petitioner Crucet was sentenced to eighteen months probation beginning April, 1981, and adjudication and sentence were withheld. At the final hearing, the Petitioner Crucet, through his interpreter, explained the events which led to his being charged and convicted of carrying a concealed firearm. Since early 1981, the Petitioner has been employed by Minutemen Security Patrol. In April, 1981, he was working the 6:00 p.m.-6:00 a.m. shift guarding a warehouse located at 3050 North River Drive in Miami. Adjacent to the warehouse area which he was guarding was a bar. A patron of the bar wanted to park his car in the warehouse area which the Petitioner was guarding since the bar parking area was full. When the Petitioner refused to allow the bar patron to park in the warehouse parking area, the patron became abusive and threatening. After the bar patron grabbed his neck and shoved him aside, the Petitioner went to his car and returned carrying a 33 caliber gun retrieved from the glove compartment which was lawfully purchased and for which he had received a temporary gun permit. When he reached the area where the bar patron had threatened him and the individual saw the gun, he left in his car. Although the gun was loaded, the Petitioner did not point the gun at anyone nor did he leave the area he was responsible for guarding. Approximately one hour after the incident the police arrived at the warehouse and asked the Petitioner if he had a gun. The Petitioner replied that he did and turned the gun over to the police. He was then arrested and booked on April 5, 1981. The Petitioner arrived in the United States from Cuba on May 1, 1980. He testified that while in Cuba he had worked on trains. He is presently working as an unarmed security guard for the same company which employed him when the incident in question occurred. Since the Petitioner arrived from Cuba, it is impossible at this time for the Respondent Department of State to ascertain from official records his criminal history in that country, if any. In this regard, the Petitioner is not unique and this is a situation that confronts all entrants from countries with whom the United States does not maintain formal or informal diplomatic relations. The Petitioner Crucet produced affidavits from individuals who were friends and neighbors in Cuba and who now reside in the United States. All of these individuals, who include an auto store clerk, a grocery store owner, a Community Service Agency owner and a supermarket owner, attest to his good moral character in Cuba and in the United States since his arrival in 1980. Additionally, the Petitioner's attorney, Jorge Fernandez, testified at the formal hearing that he knew the Petitioner, his family and his employer and would vouch for the good moral character and reputation of the Petitioner. Counsel for the Petitioner informed the Hearing Officer at the close of the final hearing that one of the conditions of his probation prohibit him from receiving a license as an armed security guard without the permission of his probation officer. However, once the Petitioner's probationary period has ended, it is the intention of Mr. Fernandez to attempt to expunge the Petitioner's record and reapply for a license as an armed security guard. The Respondent Department of State offered no evidence to refute the Petitioner's account of the incident which resulted in his guilty plea for carrying a concealed weapon or the character affidavits filed following the close of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner Isidro R. Crucet for licensure as a Class "D" unarmed security guard be granted. DONE AND ENTERED this 6th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Department of Administration Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: Jorge Luis Fernandez, Esquire 221 S.W. 22nd Avenue Suite 200 Miami, Florida 33135 James V. Antista, Esquire Assistant General Counsel Department of State Room 106, R. A. Gray Building Tallahassee, Florida 32301 Honorable George Firestone R. Stephen Nall, Esquire Secretary of State General Counsel The Capitol Department of State Tallahassee, Florida 32301 The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE ISIDRO R. CRUCET, Petitioner, vs. CASE NO. 81-2625S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
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, Jorge Cobas (Cobas), has been employed by the County as a correctional officer since April 6, 1987, 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 Cobas. 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 Cobas 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 Cobas and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Cobas filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Cobas 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 Cobas on May 1, 1986, at which time he admitted that he had used marijuana "one time years ago." Other than this isolated occasion, there is no proof that Cobas otherwise used any controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Cobas' background, that Cobas possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana. The Commission's action is not warranted by the proof. Here, Cobas, born December 29, 1956, admitted to having used marijuana one time, years ago. Such isolated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Cobas has been employed by the County as a corrections officer, a position of trust and confidence, for over two years. His annual evaluations have ranged from satisfactory to 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, Cobas 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, Jorge Cobas, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue The issue for determination is whether Respondent's conduct, which resulted in his conviction of the misdemeanor offenses of battery and improper exhibition of a deadly weapon, also constitutes violation of Section 943.13(7), Florida Statutes; namely, failure to maintain the good moral character requisite to continued certification as a law enforcement officer.
Findings Of Fact Respondent is Melvin M. Barton, holder of Auxiliary Law Enforcement Certificate Number 32-85-001-01 and Law Enforcement Certificate Number 33-87- 002-01, at all times pertinent to these proceedings. On January 1, 1989, Respondent, estranged from his wife and three month old daughter, went to the house where the wife and daughter resided. He was upset with his wife because she had left the infant with an unfamiliar baby sitter the night before in order to attend a New Year's eve celebration with another individual. Respondent and his wife argued. He struck her numerous times with his hands and with the butt of a rifle. He pointed the rifle at his wife and told her that he could shoot her. Respondent's wife was "fearful" at this moment. Then, after he told her to sit in a stuffed chair in the living room, he proceeded to fire a bullet into the chair. He later discharged the gun into a door of the home. Later in the altercation, Respondent held a pistol against his wife's throat and directed her to telephone the individuals she had been with the evening before. She tried to reach these people by telephone, but was unsuccessful. During a major portion of the time, several minutes,that Respondent's wife attempted to telephone the persons with whom she had celebrated the night before, Respondent kept the gun barrel pressed against her throat. Respondent's wife was frightened by this action of Respondent. Later, Respondent made his wife undress and engage in sexual intercourse with him. He then went to sleep. She got up, took the infant, and left the house. Respondent's wife subsequently was treated on an outpatient basis at a local hospital where the treating physician observed she was bleeding from both nostrils and had a fracture of her nasal bone. The physician also observed swelling on the victim's left and right upper arms, thighs and right shoulder. The swollen areas were red and tender. Red circular marks were also observed on her neck. The marks observed on the neck of Respondent's wife were consistent with marks which could be expected to have resulted from the pressing of a gun barrel against that area of her neck for several minutes. She acknowledged to the physician that her estranged husband had beat her up. Respondent and his wife were not living together at the time of the altercation which is the subject of this proceeding and have not lived together since. However, they are not formally divorced and continue to see each other on an occasional basis. Petitioner's evidentiary exhibits 2-14 consist of photographs. The photographs were admitted in evidence at thefinal hearing. They were taken by a deputy sheriff for DeSoto County, shortly after the incident, in the course of his investigation of the matter. Photographs in Petitioner's exhibits 2-10 depict the marks on the body of Respondent's wife which resulted from the incident and corroborate the testimony of Respondent's wife regarding her injuries, as well as the testimony of the emergency room physician who treated the victim. Petitioner's photographic exhibits 11-14 document the trajectory of the bullet, and resultant damage, through the chair in which Respondent's wife was sitting when Respondent discharged a firearm into it. Later in the evening of January 1, 1989, after Respondent's wife initiated the investigation of the incident by the DeSoto County Sheriff's department, Respondent appeared at the County Sheriff's office where he apologized to his wife and told her that he was sorry. He further told her that she could do the same thing to him if it would make everything all right. On January 30, 1989, Respondent was charged by information filed in DeSoto County Court case no. 89-37-34mm with a misdemeanor count of battery in violation of Section 784.03, Florida Statutes, and a misdemeanor count of improper exhibition of a firearm in violation of Section 790.10 Florida Statutes. Both offenses are first degree misdemeanors. On March 20, 1989, Respondent entered a plea of no contest to both of the charged offenses. He was subsequentlyadjudicated guilty of both violations and sentenced to one year's probation and payment of $75.00 in court costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking Respondent's Auxiliary Law Enforcement Certificate Number 32 002-01. DONE AND ENTERED this 5th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1990. Copies furnished: Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1498 Tallahassee, FL 32302 Joseph R. Fritz, Esq. 4204 North Nebraska Avenue Tampa, FL 33603 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL James T. Moore Commissioner 32302 P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 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 Hawks. 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 Hawks 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 Hawks 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 cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks 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 Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three 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. Overall, Hawks 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, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
