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. 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, Linda Dunham (Dunham), has been employed by the County as a correctional officer since February 26, 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 Dunham. 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 Dunham 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 Dunham 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, cannabis and amphetamine. Following receipt of the Commission's letter of denial, Dunham filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Dunham 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 Dunham on November 23, 1987, at which time she admitted that she had used marijuana, cocaine, and amphetamines. Regarding such use, the proof demonstrates that in 1970 Dunham was traveling with a dinner theatre and would occasionally take amphetamines, which she obtained from a friend, to stay awake. In the early 1970s, Dunham also used marijuana approximately twice a month over a three-year period. After terminating such use in the early 1970s, she did not again use marijuana until 1985 when she tried it one time at a birthday party. Dunham's use of cocaine was sporadic and infrequent, totalling no more than 5 times over the course of her life, with the last time being in 1985. Other than as heretofore found, Dunham has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Dunham's background, that Dunham possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her prior use of controlled substances. The Commission's action is not warranted by the proof. Here, Dunham, born January 22, 1953, was 18-20 years of age when she used amphetamines and marijuana in the early 1970s, and her use of cocaine was limited to approximately five times during the course of her life, with the last time being in 1985. But for having tried marijuana one more time in 1985, Dunham has not otherwise used controlled substances. Considering the totality of the circumstances, Dunham's use of controlled substances was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Dunham has been employed by the County as a correctional officer, a position of trust and confidence, for over one year. Her annual evaluations have been satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Dunham was certified by the Commission on June 17, 1988, for completion of the 675-hour basic correctional officer course, and has received two commendations during the course of her employment with the County. She is current on all her financial obligations, and otherwise enjoys a good reputation in the community. Overall, Dunham 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, Linda Dunham, 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, 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.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance, but not with those of petitioner. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Esteban Tabaoado (Tabaoado), has been employed by the County as a correctional officer periodically since September 11, 1984, without benefit of certification. On or about September 9, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Tabaoado. 3/ Accompanying the application (registration) was an affidavit of compliance, dated September 9, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Tabaoado had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Tabaoado and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine. Following receipt of the Commission's letter of denial, Tabaoado filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Tabaoado denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Under the provisions of rule 11B-27.0011(2), the use of a controlled substance does not conclusively establish that an applicant lacks the good moral character necessary for certification unless such use was "proximate" to his application. The Commission has not defined the term "proximate," and offered no proof at hearing as to what it considers "proximate" usage within the meaning of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state have been left with no definitive guideline from the Commission, and have adopted various standards. Pertinent to this case, Dade County has adopted a term of one year as the standard by which it gauges the "proximate" use of a controlled substance to an application for employment. Under such policy, an applicant who has refrained from such use for at least one year preceding application will not be automatically rejected as lacking good moral character. Rather, the applicant's entire background will be evaluated to determine whether he currently possesses the requisite moral character for employment. 4/ Pertinent to this case, the County undertook a pre-employment interview of Tabaoado on January 31, 1984, at which time he admitted to having used cocaine approximately eight times, the last time being in 1980, and to having used marijuana a few times, the last time being in June of 1983. Thereafter, on September 11, 1984, Tabaoado was employed by the County as a correctional officer, and served satisfactorily until 1986. On December 14, 1986, evidence that Tabaoado had a substance abuse problem surfaced. On that date, Tabaoado telephoned his former supervisor, Lieutenant Lois Spears, a confidante, and advised her that he had been using drugs and did not think he could work that night. Lt. Spears advised Tabaoado not to report for work that evening, but to report the next morning to the administrative offices. The following day, Tabaoado met with Lt. Spears and Ervie Wright, the director of the Department's program services, which include employee counseling. At that time, Tabaoado conceded that he had been abusing cocaine, and Mr. Wright recommended that he seek assistance for his problem. On January 5, 1987, the County terminated Tabaoado's employment as a correctional officer for failure to maintain a drug-free life-style. On October 19, 1987, following Tabaoado's attendance at a drug rehabilitation program, the County re-employed him as a correctional officer. To date, Tabaoado has been so employed for approximately one and one-half years without incident, and his performance has been above satisfactory. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Recently, on January 20, 1989, Tabaoado married Olfuine Tabaoado, who has been a correctional officer with the County for almost three years. According to Ms. Tabaoado, she has never known him to use drugs during the one- year period that she has known him, and Tabaoado has proven to be a good father to her son from a previous marriage. While Tabaoado may have abstained from the use of drugs since his re- employment with the County, or even since January of 1987, the proof is not compelling in this regard. Rather, the proof demonstrates that Tabaoado's use of drugs, at least of cocaine, was frequent and protracted. Here, Tabaoado, born September 2, 1960, to the extent that he would admit it, used cocaine 8 times until 1980 and marijuana a "few times" until 1983. Thereafter, following his initial employment by the County as a correctional officer, he used cocaine to such an extent that by December 14, 1986, he was unable to perform his job and was in need of professional help to address his drug abuse. Such frequent and protracted use on his part does not evidence the requisite good moral character necessary for certification as a correctional officer. Here, Tabaoado chose not to testify at hearing, and there is no competent or persuasive proof to demonstrate that he successfully completed the drug rehabilitation program; when, if ever, he ceased using cocaine; whether he now has an appreciation of the impropriety of his conduct; or whether he can reasonably be expected to avoid such conduct in the future. Notably, on October 5, 1987, prior to his re-employment, Tabaoado underwent another pre-employment interview. At that time, Tabaoado told the interviewer, who had also conducted his first interview, that he had not used any drugs since his last interview on January 31, 1984. Such response was patently false, since he had abused cocaine at least as recently as December 1986. Considering the totality of the circumstances, it is concluded that Tabaoado has failed to demonstrate that he currently possesses the requisite good moral character for certification as a correctional officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Esteban Tabaoado, for certification as a correctional officer be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989.
Findings Of Fact 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, Leonard McMullen (McMullen), has been employed by the County as a correctional officer since June 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 McMullen. 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 McMullen 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 McMullen 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, McMullen filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, McMullen 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 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 McMullen on March 8, 1985, at which time he admitted limited use of marijuana some 9 years previously. Here, the proof demonstrates that McMullen's use of marijuana was indeed limited, probably numbering little more than twice, and that his use occurred during high school, when he was 17 or 18 years of age. Since that time, McMullen has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of McMullen's background, that McMullen possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 13 years ago. The Commission's action is unwarranted. Here, McMullen, born January 7, 1958, used marijuana approximately two times, the last time being over 13 years ago when he was 17 or 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/ Following his graduation from high school, McMullen joined the U.S. Army, where he served honorably for three years as a military policeman. He enjoyed a secret security clearance, and his periodic drug screenings met with negative results. Following his discharge from the service, McMullen was employed for a few months by Gulf Life Insurance Company, and then by Florida Power & Light Company until he was employed by the County. To date, McMullen has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years, and was recently promoted to the rank of corporal. 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, McMullen 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, Leonard McMullen, 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 On August 10, 1988, Metropolitan Dade County Department of Corrections and Rehabilitation, as the employing agency, applied for certification as a correctional officer on behalf of petitioner, Eddie Lewis (Lewis). Accompanying such application was an affidavit of compliance, dated August 10, 1988, signed by the Director of Metropolitan Dade County Department of Corrections and Rehabilitation (Department of Corrections) which comported with existing law, and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lewis had met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provisions of section 943.13 is the requirement that the applicant of good moral character. 1/ By letter dated November 7, 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission) notified Lewis and the Department of Corrections that his application for certification as a correctional officer was denied for lack of good moral character because: You made an intentional, unlawful threat by word or act, with a deadly weapon, a shotgun, but without intent to kill, to do violence to Walter Harrell, coupled with an apparent ability to do so, and did an act which created in Walter Harrell a well-founded fear that such violence was imminent. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a Section 120.57(1), Florida Statutes, hearing. In his request for hearing, Lewis specifically denied that he had committed any of the acts which the Commission contended demonstrated a lack of good moral character. The Commission forwarded Lewis' request for hearing to the Division of Administrative Hearings to conduct a formal hearing. At hearing, the Commission offered no proof that Lewis had committed any of the acts contained in its letter of denial, or which otherwise rendered questionable the prima facie showing of good moral character demonstrated by Lewis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order approving Lewis' application for certification as a correctional officer. DONE AND ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida. 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 18th day of April 1989.
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
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.
The Issue This is a case in which, by Administrative Complaint served on Respondent on September 24, 1985, the Criminal Justice Standards and Training Commission seeks to revoke Certificate Number C-8690, which was issued to Respondent on April 10, 1981. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards and Training Commission on April 10, 1981, and was issued Certificate Number C-8690. Sometime on February 24 or 25, 1984, while the owners were away from home, the Respondent, Alton L. Moore, without the permission of the owners, broke into the home of Mr. and Mrs. Fred McElroy at the KOA Campground in Starke, Florida, and stole various items of personal property belonging to Mr. and Mrs. Fred McElroy, including cash in the amount of $600 or $700, a canvas bag, some checks and business records, and some jewelry. Alton L. Moore broke into the home for the purpose of stealing personal property and had no intention of returning the stolen property.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a Final Order revoking Respondent's Certificate Number C-8690. DONE AND ORDERED this 16 day of June 1986 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June 1986. APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Paragraph 1: Accepted as background and introduction information. Paragraph 2: Accepted. Paragraphs: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14: Rejected as constituting unnecessary subordinate details (even though supported by competent substantial evidence). Consistent with these proposed findings, I have made the essential finding that the Respondent committed the crimes described in these paragraphs. Rulings on Proposed Findings of Fact Submitted by Respondent (None were submitted.) COPIES FURNISHED: Daryl G. McLaughlin, Director Criminal Justice Standards and Training Commission Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Mr. Alton L. Moore Route 7, Box 544 Lake City, Florida 32055
Findings Of Fact Petitioner has been repeatedly convicted of offenses against the criminal law, from vagrancy on December 31, 1958, to gambling on May 3, 1976. He has been convicted in the courts of three states on various charges, including assault and battery, aggravated assault and battery, carrying a concealed weapon, destroying city property, disturbing the peace, resisting arrest, battery on a police officer, non-support, possession of dangerous drugs and possession of marijuana. In addition, he was arrested for and charged with assignation and vagrancy; and posted bonds which were forfeited. According to a personal questionnaire petitioner filled out on March 16, 1978, petitioner is single; he has been employed at the same place since 1976; and he has lived at the same address since 1974.
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.
