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.
The Issue The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995),1 and Florida Administrative Code Rules 11B-27.0011(4)(b) and (c),2 by failing to maintain the qualifications established in Section 943.13(7) for good moral character; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for certifying and regulating law enforcement officers in the state. Respondent is certified as a law enforcement officer pursuant to certificate number 139869 and is employed as a correctional officer by the Jacksonville Sheriff's Department (the "Department"). On January 23, 1994, Deputy J. W. Strickland observed Respondent in a parked vehicle in a vacant lot in an area of town known to the deputy as an area of drugs and prostitution. A white female was in the passenger seat of the vehicle. Deputy Strickland approached the vehicle and asked Respondent what he was doing in the area. Respondent identified himself as a correctional officer. Deputy Strickland recognized the female as Ms. Sherry Reinstzell. Ms. Reinstzell has a criminal history of prostitution. Deputy Strickland completed a field investigation report. Respondent and Ms. Reinstzell drove away. Deputy Strickland filed the field investigation report with the appropriate Department office. Sgt. Donald Retzer, Internal Affairs, received a copy of the field investigation report. He opened an internal affairs investigation concerning Respondent's conduct. Sgt. Retzer obtained a sworn statement from Respondent on January 28, 1994. Respondent stated under oath that he was just giving Ms. Reinstzell a ride to see a friend and did not know she was a prostitute. He denied any sexual activity with Ms. Reinstzell. Later in the same interview on January 28, 1994, Sgt. Retzer confronted Respondent with additional evidence previously gathered by Sgt. Retzer, including a sworn statement by Ms. Reinstzell. Respondent admitted that he picked Ms. Reinstzell up on Lane Avenue and negotiated a monetary arrangement for sex. Respondent then drove to an abandoned warehouse where Ms. Reinstzell performed fellatio on Respondent. Respondent paid Ms. Reinstzell $20 for the oral sex. He then drove her to a house where she used the $20 as part of the purchase price for illegal drugs with Respondent's knowledge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 943.1395(6), guilty of violating Section 943.1395(7) and Rule 11B-27.0011(4), and suspending Respondent's certificate for two years, including the period, if any, that Respondent has been unemployed by the Department prior to the date of this Recommended Order. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
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 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.
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.
Findings Of Fact The Respondent is a licensed certified public accountant in the State of Florida (Petitioner's Exhibit 1). The Respondent's license number is AC 20884 (Petitioner's Exhibit 1). The information filed by the State Attorney for the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Case No. CRC-88-16361-CFANO-A, alleged that the Respondent unlawfully did solicit Detective Rick Shaw to commit the offense of murder in the first degree, an offense prohibited by Section 782.04(1)(a), Florida Statutes; and in the course of such solicitation, did command, urge, hire, or request the Mr. Shaw to engage in specific conduct which would constitute such offense or an attempt to commit such offense, to wit: to unlawfully and from a premeditated design effect the death of Zena Leider, a human being, contrary to Section 777.04(2), Florida Statutes (Petitioner's Exhibit 2). On or about December 4, 1989, the Respondent was convicted in Case No. CRC-88-16361-CFANO-A of one count of solicitation to commit murder in the first degree (Petitioner's Exhibit 2). On or about December 4, 1989, the Respondent was sentenced to be committed to the custody of the Department of Corrections to be imprisoned for a term of 17 years. After serving a period 12 years, the balance of the sentence shall be suspended; and he will be placed on probation for a period of five (5) years (Petitioner's Exhibit 2). Daniel Hevia, CPA, was accepted as an expert in the profession of accountancy and testified concerning that profession (Transcript, pg. 24). Accountancy is based upon professional judgment, both technical and ethical. People practicing accountancy must have good ethics and a strong character because of the types of judgments which have to be made in the profession (Transcript, pg. 26). Accountants have to have mature judgment and maintain good mental stability because the public places a great deal of trust in CPA's (Transcript, pg. 27). Good moral character means a personal history of honest, fairness, respect for the rights of others and for the laws of the State of Florida and the nation (Transcript, pg. 25). The Respondent's conviction shows a lack of good judgment and an absence of ethics and good character which adversely effect the Respondent's ability to practice public accounting (Transcript, pg. 42). In the opinion of Mr. Hevia, the Respondent violated Section 473.323(1)(m), Florida Statutes (Transcript, pgs. 28 and 30).
Recommendation Having proved that the Respondent has violated Section 473.323(1)(m), Florida Statutes, by failing to maintain good moral character; and having proved that the Respondent has violated Section 473.323(1)(d), Florida Statutes, by being convicted of a crime relating to his ability to practice public accounting, it is, therefore RECOMMENDED that the license of the Respondent be revoked. DONE AND ENTERED this day of June, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6424 The Respondent did not file proposed findings of fact. The Petitioner filed proposed findings which were read and considered. The following proposed findings were adopted or rejected for the reasons stated: 1-10. Adopted. 11-12. Rejected, as repetitive and cumulative. 13-14. Adopted. COPIES FURNISHED: Ms. Martha Willis Executive Director Board of Accountancy Department of Professional Regulation 4001 Northwest 43rd Street Suite 16 Gainesville, FL 32606 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Tobi C. Pam, Esq. Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 David S. Leider D.C. #118606 Sumter Correctional Institution P.O. Box 667 Bushnell, FL 33513-0667
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, Kenneth Hart (Hart), has been employed by the County as a correctional officer since June 30, 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 Hart. 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 Hart 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 Hart 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, Hart filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hart 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 Hart on May 22, 1986, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Hart used marijuana on approximately three occasions and cocaine on approximately three occasions, that such use was sporadic and infrequent, and that such use occurred more than two years prior to the interview. Notwithstanding the County's conclusion, based on its investigation and analysis of Hart's background, that Hart possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his infrequent and sporadic use of marijuana over 5 years ago. The Commission's action is not warranted by the proof. Here, Hart, born February 15, 1962, used marijuana and cocaine approximately three times over 5 years ago when he was 21-22 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Currently, Hart has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hart 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, Kenneth Hart, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989.
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, the Criminal Justice Standards and Training Commission, is the legal entity responsible for certifying law enforcement officers in Florida. Respondent, Gary W. Anderson, was certified by Petitioner on September 23, 1987, and was issued Law Enforcement Certificate No. 49406. Respondent was employed by the Brevard County Sheriff's Office for sixteen years as a deputy sheriff and attained the rank of corporal. During 2001 and 2002, Jennifer Cobb, the alleged victim, worked as a waitress at Applebee's restaurant approximately four or five nights a week. She often served food and beverages to various law enforcement personnel who consistently frequented the restaurant. Respondent dined and socialized in the establishment approximately three times per week during Ms. Cobb's tenure at Applebee's. Ms. Cobb admits that she and Respondent had a friendly, congenial relationship. She admits that she regularly hugged Respondent as well as other deputies when she saw them. In December 2001, Ms. Cobb complained to her stepfather, Deputy Webster, that Respondent had inappropriately slapped her buttocks and had pulled her ponytail towards his lap. Although Deputy Webster was a friend and subordinate to Respondent, the evidence demonstrates that shortly thereafter, following a routine briefing meeting, Deputy Webster approached Respondent and requested him to refrain from any inappropriate touching of Ms. Cobb. Deputy Webster admits, however, that Respondent did not respond in any way to his verbal request and is not certain whether Respondent actually heard his request. Notwithstanding her complaint to her stepfather in late 2001, Ms. Cobb continued to hug Respondent when she saw him. In April 2002, Ms. Cobb saw Respondent at Brevard Community College and approached him. Although Respondent was engaged in conversation on his cell phone, Ms. Cobb hugged him and then released to depart. Ms. Cobb alleges that Respondent pulled her belt towards him while he was on the phone in an apparent effort to see down her pants. Respondent admits that he does not recollect tugging at her belt, but firmly denies that he intended to look down her pants. He argues, that he may have touched her waist to signify that he was releasing the call and wanted her to remain so they could talk. Ms. Cobb admits that, during the alleged incident, she did not object to or even address Respondent's alleged inappropriate behavior. Ms. Cobb admits that she often initiated the hugs with Respondent and was always friendly towards him. She claims that she tolerated his "touchy" behavior, but a few times requested Respondent to stop the behavior. Respondent admits that they routinely hugged and were friendly, but denies that she ever appeared uncomfortable or even broached the subject. Respondent contends that their physical contact was always friendly and denies ever touching Ms. Cobb in an inappropriate manner. In May 2002, Ms. Cobb filed a complaint with the Brevard County Sheriff's Office. Respondent was immediately suspended and advised by command staff to avoid Applebee's during the investigation. Respondent was demoted from the rank of corporal and removed from the SWAT team. During the internal affairs investigation, Inspector Vitek investigated Ms. Cobb's complaint and interviewed many witnesses. Respondent was placed under oath and provided sworn testimony to Inspector Vitek. Respondent denied the allegations made by Ms. Cobb. Specifically, during his second sworn interview, on May 22, 2002, Respondent denied that he touched Cobb's buttocks, denied that he pulled her hair to his crotch, denied that he pulled out her pants at Brevard Community College, and denied that Deputy Webster had requested him to stop his behavior with Ms. Cobb. Inspector Vitek concluded that Respondent was being untruthful. Sheriff Williams provided Respondent an opportunity to recant his denials in his predetermination hearing and Respondent declined. Thereafter, Sheriff Williams concluded that Respondent was being untruthful and terminated him. The case was reviewed by the Civil Service Board which upheld the investigation and sustained the untruthfulness finding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The allegations against Respondent are unfounded; Respondent did not fail to maintain good moral character; Respondent's certification be restored immediately. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004. COPIES FURNISHED: Laurie B. Woodham, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 H. R. Bishop, Jr., Esquire 8738 Belarado Court Tallahassee, Florida 32311 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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, Roberto Mera (Mera), has been employed by the County as a correctional officer for approximately two years, 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 Mera. 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 Mera 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 Mera and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. You have unlawfully and knowingly purchased stolen property. Following receipt of the Commission's letter of denial, Mera filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Mera 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 Mera on April 16, 1987, at which time he divulged that he had used marijuana one time in 1977, that he had used cocaine one time in 1982, and that he had purchased a stolen VCR for $100 in 1982. While the used VCR he purchased was apparently stolen property, Mera did not know such fact when he purchased it, and turned it over to the police when they advised him it was stolen property. Other than heretofore noted, Mera has never used marijuana or cocaine. Notwithstanding the County's conclusion, based on its investigation and analysis of Mera's background, that Mera possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidents. The Commission's action is unwarranted. Here, Mera, born August 20, 1963, used marijuana one time 12 years ago when he was 14-15 years of age, and cocaine one time 7 years ago when he was 19 years of age. At no time did he knowingly purchase stolen property. Such isolated and dated usage of marijuana and cocaine 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, Mera has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two 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, Mera 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, Roberto Mera, 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, 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.
