Findings Of Fact Background In June 198, 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, Hattie Moore (Moore), has been employed by the County as a correctional officer since February 18, 1987, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Moore. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 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 Moore 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 Moore and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Moore filed a timely request for a formal bearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Moore denied that she failed to possess the requisite good moral character necessary for certification. Good Moral Character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Moore on October 15,1986, at which time she admitted that she had used marijuana and cocaine, with the last time being in 1977, and that she had been arrested in 1977 for possession of cocaine. Regarding her use of marijuana and cocaine, the proof demonstrates that any such use ceased in 1977, and that, while Moore cannot remember with exactitude the number of times she used either substance, she most probably used such substances no more than 3-5 times each. Regarding her arrest, the proof demonstrates that on February 3, 1977, when she was arrested, Moore had in her possession less than one gram of cocaine. The state chose not to file a criminal information, and her arrest record was expunged on February 3, 1986. Notwithstanding the County's conclusion, based on its investigation and analysis of Moore's background, that Moore possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her use or possession of marijuana and cocaine over 12 years ago. The Commission's action is not warranted by the proof. Here, Moore, born September 3, 1958, used or possessed marijuana and cocaine infrequently, the last time being over 12 years ago when she was 18 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/ To date, Moore has been employed by the County as a corrections officer, a position of trust and confidence, for over two years. Her annual evaluations have ranged from satisfactory to above satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, and of good moral character. Currently, Moore is married and the mother of two children, ages 11 and 9. She is a homeowner, and also attends Miami Dade Community College where she has amassed 73 credit hours to date. Overall, Moore has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Hattie Moore, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989.
The Issue 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
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, Alfonso Morales (Morales), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Morales. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 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 Morales 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 Morales 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 carried a concealed firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Morales filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Morales 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 Morales on December 18, 1985, at which time he divulged that, as to arrests, he had been arrested one time in 1980 for carrying a concealed weapon and that, as to drug usage, he had used marijuana one time "many, years ago." Regarding the use of marijuana, the proof demonstrated that Morales had used it but once, and that was in 1976, when he was 17 years old and attending high school. Regarding his arrest for carrying a concealed weapon, the proof demonstrates that in August 1980, Morales was stopped while driving in the City of Miami Beach for a "routine traffic offenses (unsafe equipment)." Following the stop, Morales volunteered to the officers that he had a .25 caliber automatic pistol under the driver's seat which, upon discovery by the officers, resulted in his arrest. No charges were filed, however, as a consequence of that arrest, and Morales' arrest record was expunged and sealed by court order in August 1985. Notwithstanding the County's conclusion, based on its investigation and analysis of Morales' background, that Morales possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, Morales, born March 9, 1959, used marijuana one time, 13 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. Nor, can Morales' arrest for carrying a concealed weapon, considering what has occurred in his life since that time, be considered persuasive proof, if it ever was, of bad moral character. 4/ Morales graduated from high school in 1981, and entered the U.S. Army in 1982 where he served honorably for over three years. During his service he attained the rank of sergeant, enjoyed a top secret security clearance, garnered several commendations, and all drug screenings met with negative results. Following his discharge from the services, Morales was employed by the State of Florida, Job Services of Florida, until his employment by the County. To date, Morales has been employed by the County as a corrections officer, a position of trust and confidence, for almost 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, Morales 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, Alfonso Morales, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue Whether Petitioner is entitled to approval of his application for licensure by examination.
Findings Of Fact Petitioner is an applicant for licensure by examination to be a community association manager. On June 19, 1997, Petitioner filed an application for license that admitted a criminal arrest for possession of cocaine, diazepam, and marijuana. The arrest noted above resulted in the issuance of a four-count Information for possession of cocaine, possession of diazepam, possession of cannabis, and possession of drug paraphernalia. After an initial plea of not guilty, Petitioner entered a changed plea, and pled nolo resulting in a sentence whereby adjudication of guilt was withheld and two years of probation was imposed. On June 19, 1997, Petitioner's request for the early termination of his probation was granted. Concurrent with this release, Petitioner filed the application for license which is at issue in this proceeding. No other criminal charges or allegations are at issue in this matter. Petitioner does not dispute the accuracy of the foregoing criminal record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Professions, enter a Final Order denying Petitioner's application for licensure as a community association manager by examination. DONE AND ENTERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998. COPIES FURNISHED: Edward Broyles, Executive Director Regulatory Council of Community Association of Managers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Roberto Stanziale,Esquire 6209 West Commercial Boulevard Suite 2 Fort Lauderdale, Florida 33319
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
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Petitioner issued Respondent law enforcement certificate number 102033 on December 3, 1989. Respondent has remained certified continuously since that date. Respondent's law enforcement experience includes a related assignment while serving in the United State Marine Corps. He then worked as a deputy sheriff and police officer in Los Angeles, California. In 1989, Respondent was employed by the Tampa Police Department for three or four months, and, in 1990, he was employed by the Cocoa Police Department for two years. For the last seven years, Respondent has been employed outside of law enforcement; currently, he is a sales manager at a Chevrolet dealership in Cocoa. While working for the Cocoa Police Department, Respondent continued to reside in the Tampa area, where his wife and three children also resided. On November 20, 1991, pending the later entry of a final dissolution decree, a circuit judge in Tampa entered an Injunction for Protection from Domestic Violence. The injunction ordered Respondent and his then-wife "from entering the dwelling, or from entering upon the curtilage of the dwelling of the other . . .." The injunction warned that an "intentional violation" of its provisions "shall constitute contempt of court, punishable by incarceration and/or fine." Respondent was six feet tall and 220 pounds, and his then-wife was five feet, three inches tall and 115 pounds. On December 11, 1991, Respondent intentionally entered the driveway of the townhouse at which his then-wife was residing. A sheriff's deputy responding to a telephone call from Respondent's then-wife saw her in the driver's seat of her vehicle, parked in the driveway, and Respondent standing next to her holding the top of the door, so as to prevent her from closing the door. Respondent and his then-wife were arguing. The deputy arrested Respondent. A judge revoked bail on various criminal charges arising out of an earlier altercation between Respondent and his then-wife. Respondent remained in jail for 18 months awaiting trial on these charges. At trial, he was acquitted of all but two charges--trespassing and battery for grabbing the hands of his then-wife--but the court withheld adjudication of guilt on these charges.
Recommendation It is RECOMMENDED that the Criminal Justice and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and reprimanding his certificate. DONE AND ENTERED this 29th day of July, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 29th day of July, 1999. COPIES FURNISHED: Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Richard D. Courtemanche, Jr. Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 David Barnard Post Office Box 360971 Melbourne, Florida 32936-0971
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, Johnny Johnson (Johnson), has been employed by the County as a correctional officer for approximately three 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 Johnson. 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 Johnson 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. 3/ By letter dated November 1, 1988, the Commission notified Johnson 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, Johnson filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Johnson 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 preemployment 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 Johnson on May 14, 1985, at which time he admitted that he had used marijuana on two occasions. At that time he estimated the date he last used marijuana to have been 1972; however, the proof demonstrates that he misapprehended the date of last usage, and that the proper date was December 1970. His last use consisted of "passing a joint" ,with some college friends when he was 23 years of age. Prior to that, he had used marijuana once while a solider in Vietnam. Notwithstanding the County's conclusion, based on its investigation and analysis of Johnson's background, that Johnson possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 18 years ago. The Commission's action is unwarranted. Here, Johnson used marijuana two times, the last time being over 18 years ago when he was 23 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. Currently, Johnson has been employed by the County as a corrections officer, a position of trust and confidence, for approximately 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. Prior to his employment as a corrections officer, Johnson was employed as an administrative assistant by Dade County, Department of County and Economic Development, for two and one-half years. He has been certified as a substitute teacher in Dade County since 1982, and has been a member of the Air Force Reserve for three years, with several letters of commendation Overall, Johnson 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, Johnny Johnson, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th 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 15th day of June, 1989.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 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, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 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 Fialko 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 food moral character. By letter dated November 1, 1988, the Commission notified Fialko 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, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko 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 Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half 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. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko 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, David Fialko, 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, Signe Anthony (Anthony), has been employed by the County as a correctional officer for approximately one and one-half 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 Anthony. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Anthony 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 Anthony and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission'S letter of denial, Anthony filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Anthony denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Anthony on May 9, 1987, at which time she admitted that she had tried marijuana. Regarding such use, the proof demonstrates that on one occasion, at age 13 and while a student in junior high school, Anthony took three or four "drags" from a marijuana cigarette. Other than that one occasion Anthony has not used marijuana or any controlled substance. In reaching this conclusion, the Commission's contention that Anthony's application with the City of Miami for employment as a police officer was denied in 1985 because her pre- employment urinalysis ostensibly proved positive for the presence of marijuana has not been overlooked. However, the proof offered to demonstrate that her urinalysis proved positive for the presence of marijuana was not credible or reliable. Contrasted to such unpersuasive proof was the credible testimony of Anthony that she had used marijuana on but the one occasion during junior high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Anthony's background, that Anthony 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, Anthony, currently 26 years of age, used marijuana on one occasion approximately 13 years ago when she was 13 years of age. Such an 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, Anthony has been employed by the County as a correctional officer, a position of trust and confidence, for approximately one and one-half years. Her annual evaluations have ranged from satisfactory to outstanding, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Anthony has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Signe Anthony, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th 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 7th day of June, 1989.
