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.
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 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, Leon Lewis (Lewis), has been employed by the County as a correctional officer since September 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 Lewis. 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 Lewis had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Lewis and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You actually and intentionally struck Edward Thornton against the will of the said Edward Thornton. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Lewis 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 an assessment of Lewis' moral character, the proof demonstrates that the County undertook a pre-employment interview of Lewis on April 20, 1984, at which time he admitted to having "tried marijuana one time, four years ago." At the time of use, Lewis was 17 years of age and a high school student; he has not otherwise experimented with controlled substances. The proof also demonstrates that in October 1982, Lewis struck one Edward Thornton on the head with an umbrella. The circumstances surrounding such blow being struck demonstrate that, following a high school football game, Thornton was harassing Lewis' girlfriend when she, crying, sought Lewis out. At that time, Thornton and a number of his friends confronted Lewis and his girlfriend. Reasonably fearing an attack, Lewis grabbed an umbrella and exclaimed "Before you hit me, I'm going to have to get one of you," and struck Thornton on the head. Other than a cut to the head, there is no proof that Thornton suffered any significant injury. While Lewis was arrested as a consequence of the incident, the matter was subsequently dismissed and the record expunged. Notwithstanding the County's conclusion, based on its investigation and analysis of Lewis' background, that Lewis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the two isolated incidents, heretofore discussed, in Lewis' life. The Commission's action is unwarranted. Here, Lewis, born February 25, 1963, used marijuana one time, nine years ago, when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B- 27.0011(2), or persuasive evidence of bad moral character. Likewise, the isolated incident of striking Thornton over the head with an umbrella when Lewis was 19 years of age was hardly proximate to his employment, or this consideration of his application for certification, and does not, under the circumstances presented, evidence bad moral character. 4/ To date, Lewis has been employed by the County as a correctional officer, a position of trust and confidence, for over three and one-half years. There is no suggestion that he has committed any act or offense that would reflect adversely on his moral character during the term of such employment. Overall, Lewis 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, Leon Lewis, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact 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, Carlton Guthrie (Guthrie), 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 Guthrie. 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 Guthrie had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Guthrie and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Guthrie filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Guthrie 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-2 7.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Guthrie on March 9, 1985, at which time he admitted that he had used marijuana 10-15 times during the course of his life, with the last time being approximately 2 years prior to the interview. Regarding such use, the proof demonstrates that Guthrie's use of marijuana was sporadic and infrequent, and that it occurred mostly during his college years. Other than marijuana, Guthrie has not used any controlled substance, and has not used marijuana since at least early 1983. Notwithstanding the County's conclusion, based on its investigation and analysis of Guthrie's background, that Guthrie possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his occasional use of marijuana. The Commission's action is not warranted by the proof. Guthrie was born in Jamaica on November 16, 1952, and immigrated to the United States in 1970. He attended his last two years of high school in Hollywood, Florida, and then attended Biscayne College from 1972-1974, where he graduated with a Bachelor of Arts degree in pre law, with minors in English and psychology. During the course of his college career, Guthrie was employed full- time by a local restaurant, and following this graduation he remained in the restaurant's employ until 1982. Following that employment, Guthrie taught part time as a teacher, in addition to other pursuits, until his employment by the County as a correctional officer in 1985. Guthrie is currently divorced and the father of two children, ages 10 and 15. The children reside with Guthrie in a home he has owned since 1978. He is current in all his obligations, and enjoys a good credit reputation in the community. To date, Guthrie has been employed by the County as a correctional 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. While Guthrie did use marijuana during his college years and as recently as 1983, such use was infrequent and, due to the passage of time, not proximate within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Overall, Guthrie 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, Carlton Guthrie, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, James Battle (Battle), has been employed by the County as a correctional officer since June 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Battle. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Battle had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Battle and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Battle filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Battle denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Battle on December 18, 1987, at which time he admitted that he had used marijuana. Regarding such use, the proof demonstrates that during the years 1982 and 1983, while a junior and senior in high school, Battle used marijuana approximately 15 times. He has not used marijuana since his graduation from high school in 1983, and has never used any other form of controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Battle's background, that Battle possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana during high school. The Commission's action is unwarranted. Here, Battle, born May 18, 1965, used marijuana approximately 15 times, the last time being over 6 years ago when he was 18 years of age and a senior in high school. He has not used marijuana since, and has never used any other form of controlled substance. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Battle has been employed by the County as a corrections officer, a position of trust and confidence, for approximately one year. His evaluations have been satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, and following his graduation from high school, Battle has been continuously employed. Additionally, he has served in the National Guard for almost five years, and attained the rank of E3. Overall, Battle has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, James Battle, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact The Petitioner, James A. Detzel, age 40, was born in Miami, Florida, and he lived there until sometime during his junior high school years when he went into the United States Marine Corps. He subsequently earned and received a GED diploma from high school. At age 19 the Petitioner began to get into trouble with the law. He was arrested and convicted in Atlanta, Georgia, for armed robbery in 1960, and served a two year sentence. Between this occurrence and the year 1968 he was arrested and convicted three more times, for robbery, escape while serving the robbery sentence, and for possession of burglary tools. In 1968 the Petitioner was arrested for breaking and entering-grand larceny in Dade County, Florida, and sentenced to 15 years. He served nine and one-half years, and received a conditional release in 1976. A conditional release is the same as parole, but the Petitioner had previously violated parole and was not again eligible to receive parole. Thus, he received the conditional release. In October of 1981, the Petitioner's conditional release was terminated, after it had been satisfactorily completed. During the years, the Petitioner has also been arrested and convicted of breaking and entering-petit larceny, receiving stolen property, and larceny of an automobile. At the present time, however, he has paid his debts to society on all of these charges. Nevertheless, the Petitioner has not yet had his civil rights restored, although he is apparently eligible to apply therefor. The Petitioner contends that he has been rehabilitated, and thus is now eligible to be licensed as a repossessor. He is married and has two children. He is buying a home in Tampa. He has been steadily employed since 1976, and is now working as repossessor in Tampa. His employers have found him to be reliable and trustworthy employee. The Petitioner has not been in any trouble with the law since 1968, and he has a satisfactory work record since his release from prison. The Petitioner has been honest and loving with his wife and family. He is a changed man now, his wife contends, and is a good family provider. The Petitioner's Parole Officer confirms that his life seems to have become stabilized now.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of James A. Detzel for a Class E (Repossessor) License, be denied. THIS RECOMMENDED ORDER entered on this 5 day of February, 1982. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1982. COPIES FURNISHED: Richard S. Blunt, Esquire 112 South Armenia Avenue Tampa, Florida 33609 James V. Antista, Esquire Room 106 Gray Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE JAMES A. DETZEL, Petitioner, vs. DOAH CASE NO. 81-2847S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Steven Albert (Albert), has been employed by the County as a correctional officer since February 19, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Albert. 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 Albert 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 Albert 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, Albert filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Albert 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 Albert on July 23, 1987, at which time he admitted that during the course of his military service he had been involved with controlled substances. Here, the proof demonstrates that Albert joined the United States Air Force on March 31, 1975, at the age of 19, following his graduation from high school. During the course of such service, he experimented with cocaine, qualudes and "speed" a few times, the last time being in 1980 or 1981; used marijuana occasionally, the last time being in 1981; and sold or attempted to sell one ounce of marijuana on three separate occasions, the last being in 1981. On January 2, 1981, following his receipt of an Article 15, an administrative form of discipline, for possession of marijuana, Albert received a general discharge, under honorable conditions, from the military. Since that time, Albert has not used, bought or sold any controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Albert's background, that Albert possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Albert used controlled substances, and sold or attempted to sell marijuana on 3 occasions, the last time being over 8 years ago when he was 26 years of age. Since that time he has had no contact with controlled substances. Under such circumstances, his prior contact with controlled substances is not proximate within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Albert has been employed by the County as a corrections officer, a position of trust and confidence, for over one year. His performance has ranged from satisfactory to above satisfactory, he has received two commendations, 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, and of good moral character. Prior to his employment as a corrections officer, Albert was employed as a security guard for a private company, and was duly licensed by the State of Florida as an unarmed officer. Overall, Albert, now 34 years of age, 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, Steven Albert, 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 Whether Petitioner's, David A. Reed, application for a real estate sales associate license should be granted so that he may sit for the salesperson's examination.
Findings Of Fact FREC is the state agency responsible for licensing real estate sales associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes (2009).1 Petitioner applied for a real estate sales associate license. FREC stated several factual grounds for the proposed denial of Petitioner's application in the Notice of Intent to Deny. In 1994, Petitioner was arrested and plead guilty to three counts of lewd and lascivious assault on children in the Circuit Court in and for Lee County, Florida. Adjudication was withheld, and Petitioner was placed on supervised probation for ten years and ordered to enroll, and successfully complete, the sex offender treatment program. From 1992 to 1994, Petitioner committed repeated lewd and lascivious assaults upon his daughter and two nieces. His daughter and one niece were between ages six and eight during this time, and his other niece was between the ages of ten and 12. Petitioner successfully completed the sex offender program and was released from the program in 1999 and supervised probation was terminated early that same year. Thereafter, Petitioner was required, under Florida law, to register as a sex offender and report his whereabouts to law enforcement. Upon his release from treatment, Petitioner was informed that he could schedule a counseling session with his therapist or participate in a group therapy session. Petitioner has indicated that this is unnecessary, and he has not sought assistance in this area. Petitioner has not been arrested or charged with any other disqualifying offense since 1994. Petitioner has started, and still maintains, a successful lawn maintenance business. Petitioner is now working, part-time, for his sister, Valarie Tillman, a real estate broker/owner, in her real estate office in Ft. Myers. She sent a letter of recommendation and testified in his behalf and has offered him a position as a sales associate, should his license be approved. Petitioner also offered four other notarized letters of recommendation. However, they cannot be considered as persuasive in these Findings of Fact because they are hearsay, and the authors are not subject to cross-examination under oath. Petitioner did not present any disinterested witnesses (or other evidence) who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing. Petitioner did not present sufficient evidence to show that he was competent and qualified to make real estate transactions and conduct negotiations with safety to investors "and to those with whom the applicant may undertake a relationship of trust and confidence." Petitioner presented insufficient evidence of rehabilitation from his criminal past. Petitioner plead guilty to three felony counts of lewd and lascivious assault on children. These egregious acts, coupled with a lack of sufficient evidence of rehabilitation, convinces the undersigned to conclude that Petitioner has not satisfied his burden of showing that he is qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate sales associate in the State of Florida. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of December, 2010.
Findings Of Fact On August 15, 1979, petitioner Joseph William Smith executed a personal questionnaire in support of his application for a beverage license. On sheets of paper attached to the application, he listed some, but not all, of the occasions on which he was arrested. At one time respondent lived in Savannah, Georgia, where he was arrested at least as early as July of 1956. An arrest on July 10, 1958, eventuated in a two month stay in jail as punishment for armed robbery. On November 18, 1967, petitioner was arrested for threatening somebody with a weapon, an accusation of which he was subsequently found not guilty. In 1968, he was sentenced to 30 days for shoplifting. Petitioner was arrested for gambling with dice in January of 1971. He was arrested again on May 26, 1972. In June of 1973, he was found not guilty of robbery. Also in 1973, he was placed on probation for buying and receiving stolen property. In June of 1975, petitioner was found not guilty of murder. He was found not guilty of possession of marijuana in March of 1978. Petitioner lives in one of the worst neighborhoods in the United States. The uncontroverted testimony was that a person could be arrested simply for standing on a street corner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for a beverage license. DONE AND ORDERED this 3rd day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Joseph W. Smith 818 N.W. 2nd Avenue Miami, Florida 33136
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on October 2, 1981, and was issued certificate number 02- 29012. On September 7, 1985, the Respondent, who was then employed as a policeman by the town of Mount Dora, arrested Roger Bivins for driving under the influence of alcohol and speeding. Subsequent to arresting Mr. Bivins, the Respondent transported him to the Lake County, Florida, jail for booking. The Respondent and Mr. Bivins entered the jail booking room at about 4:15 a.m. Sergeant Paul Bass and Officer Edward Johnson, jail correctional officers, were on duty in the booking room at the time. The Respondent instructed Mr. Bivins to be seated on a bench in the booking room. Mr. Bivins, whose hands were handcuffed behind his back, complied. The Respondent checked the arrest affidavit and booking sheet which had been prepared in connection with the arrest of Mr. Bivins, and submitted them to Sergeant Bass for approval. The Respondent then turned his attention to Mr. Bivins who sat on the bench. The Respondent asked Mr. Bivins if "he could have his handcuffs back." Mr. Bivins answered "no" and added that he intended to have a lawyer "take care of it." Mr. Bivins offered no physical resistance, nor did he physically threaten the Respondent. The Respondent became angry and shouted at Mr. Bivins. The Respondent said he could "take his gun and badge off." The Respondent then grabbed Mr. Bivins by the arm, stood him up, and hurled him very hard head-long four to five feet into some steel jail bars. Mr. Bivins, who was still handcuffed with his hands behind him, could not catch himself. Mr. Bivins struck the bars with the right cheek of his face and then fell backward onto his back, dazed. His face and back were injured as a result. Sergeant Bass intervened and assisted Mr. Bivins to a nearby desk. Sergeant Bass observed an injury to Mr. Bivins' face and observed "seven or eight welts" on Mr. Bivins' back. Sergeant Bass was concerned about these injuries and contacted the jail nurse, Mary Jo Robbins. Ms. Robbins, a licensed practical nurse employed by the Lake County Jail, saw Mr. Bivins at about 4:55 a.m. Ms. Robbins observed the welts on Mr. Bivins' back and hematomas under his right eye. The hematomas appeared "purplish" and swollen to Ms. Robbins who concluded Mr. Bivins had suffered a "pretty hard lick." Ms. Robbins gave Mr. Bivins Tylenol capsules for his pain, and recommended that he go to the hospital to get an X-ray of his face because the force of the blow suffered by Mr. Bivins could have fractured a facial bone. Although no bone was broken, Mr. Bivins suffered pain for two to three days thereafter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that certificate number 02-29012 held by the Respondent, Milton J. Tinis, be revoked. Hearing Officer WILLIAM B. THOMAS 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 22nd day of July, 1987. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Mr. Milton J. Tinis 1502 Tyringham Road Eustis, Florida 32726 Rod Caswell, Director Criminal Justice Standards and 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
