Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 11, 1983 and issued Certificate Number 502-3844. The Respondent was a correctional officer with the Palm Beach County Sheriff's Office beginning in January 1983. On August 27, 1986, the Respondent resided with Ms. Burton (who has subsequently married Respondent and is now known as Elaine Burton Edwards) and two of her children. One of her children, Karl McInis ("Karl") was twenty three months old at the time and he was in the process of being toilet trained. On August 27, 1986, the Respondent discovered that Karl had "messed" on the floor and/or in his pants. The Respondent felt that the child's actions were deliberate and that the child needed to be disciplined. Therefore, Respondent struck the child fives times with a leather belt. There is a dispute as to the type and size of the belt used. While Petitioner contends that Respondent used his heavy Sheriff's Deputy belt, the greater weight of the evidence indicates that Respondent used a typical men's trousers belt. As a result of the discipline described in paragraph 5 above, Karl suffered bruises on his buttocks and legs. Subsequent to the incident, the child was removed from the home by HRS. He currently resides out of state with his grandparents. Criminal charges were brought against Respondent after HRS reported the incident to the police. However, after Respondent successfully completed a counseling program as part of a pre-trial intervention program, the charges were nolle prossed on November 10, 1988. As a result of his arrest, Respondent was suspended from his job at the Palm Beach County Sheriff's Department pending the outcome of the criminal case. Respondent has not been reinstated. After completing the counseling program, Respondent altered his methods of disciplining his children. On most occasions, Respondent has refrained from using corporal punishment and instead attempts to apply the assertive discipline procedures he learned in the counseling program. However, Respondent admits that on a few occasions when he felt the children did not respond to the assertive discipline techniques, he has resorted to corporal punishment. On March 2, 1989, Respondent disciplined one of his children, Julius Edwards, by striking him five times on the palms of the hands with a belt. At the time of the incident described in paragraph 10, Julius was five years old. Julius and at least one other sibling from Respondent's previous marriage were living with Respondent and Ms. Burton. Respondent punished Julius because he felt the child was deliberately engaging in a pattern of obstinate conduct in an attempt to be returned to the custody of his natural mother. That conduct included eating excessive amounts of food after being instructed not to. During the punishment, Julius struggled and at least one of the blows landed on his arms. As a result of the punishment, Julius had bruises on his arms which measured approximately four inches long and one inch wide. As a result of the corporal punishment administered by Respondent to Julius, Respondent was arrested and ultimately adjudicated guilty of a misdemeanor for violating Section 827.04, Florida Statutes (child abuse) on March 29, 1989 in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, in case no. 89-5869MMA08. As a result of this conviction, Respondent was required to undergo additional counseling. While the bruises suffered by the children in the two incidents described above are significant cause for concern, neither of the children required medical attention. At the time of both of the incidents in question, none of the other children evidenced bruises, they all appeared well-fed and there was no other evidence of any neglect. Indeed, the evidence reflects that the Respondent is a dedicated and caring father. He is extremely concerned about the many negative influences that affect children in our society. As a result, he believes it is important for him to discipline the children in an attempt to ensure that they choose the right path in life. Respondent contends that he was raised with a similar type of discipline and finds it difficult to understand the commotion caused by his attempts to discipline his children in the manner in which he was raised. While his motives are good, he has used very poor judgment in certain situations and imposed excessive punishment given the age of the children and the nature of their behavior. Respondent has aspired to be a law enforcement officer since his high school days. He has spent hundreds of hours as a volunteer for various school projects and programs involving children. He has strived hard to be a good role model and an active member of his community. However, he needs to temper his concerns and enthusiasm with more sensitivity to the rights of others. There is no indication of any deficiencies or problems in Respondent's job performance. Indeed, the only evidence introduced regarding his performance as a law enforcement officer indicated that he was dedicated, concerned and responsible.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order placing Respondent Glenn S. Edwards' correctional officer certification on probation for a period of two years and requiring him to complete an appropriate counseling program for parents while refraining from any further violations of Section 943.13(1)-(10). DONE AND ENTERED this 10th day of April 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 10th day of April 1990.
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 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, Ivan Carrandi (Carrandi), has been employed by the County as a correctional officer since June 17, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Carrandi. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Carrandi had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Carrandi and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Carrandi filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Carrandi denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Carrandi on January 1, 1985, at which time he freely admitted that he had used cocaine and marijuana. Regarding such use, the proof demonstrates that during the years 1980 and 1981, while a student at Miami Dade Community College, Carrandi used marijuana approximately two or three times and cocaine approximately two or three times. He has not, however, otherwise used controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Carrandi's background, that Carrandi possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana and cocaine approximately 8 years ago. The Commission's action is unwarranted. Here, Carrandi, born November 12, 1960, used marijuana two or three times and cocaine two or three times about 8 years ago when he was 20-21 years of age and a student at Miami Dade Community College. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B- 27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Carrandi has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years. His annual evaluations have ranged from satisfactory to above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Carrandi has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Ivan Carrandi, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact On February 6, 1992, Respondent received Petitioner's application for a Class "D" Security Officer License. In processing the application, Respondent conducted a criminal background check on Petitioner and received his criminal history as compiled by the Federal Bureau of Investigation (FBI). By letter dated July 24, 1992, Respondent informed Petitioner of its intent to deny his application for licensure based upon grounds cited in the letter. On August 17, 1992, Respondent received Petitioner's request for a formal hearing and his explanation for the various arrests cited in the denial letter. On August 14, 1992, Respondent mailed Petitioner an amended denial letter citing additional grounds for the denial of his application. Respondent asserts that it is within its discretion to deny Petitioner's application because his criminal history reflects a lack of good moral character. All other grounds for denial of licensure of Petitioner were abandoned by Respondent at the formal hearing. The following arrests are cited by Respondent as justifying its denial of licensure to Petitioner. CHARGE ONE On August 21, 1968, Petitioner was arrested on charges of aggravated assault and forgery in Dyersburg, Tennessee. In 1968, Petitioner was discharged from the Army after having served in Viet Nam. He accompanied a friend he had met in the Army to Dyersburg, Tennessee, where he became involved in an altercation with someone who tried to run him off the road while he was riding his motorcycle. The person who tried to run Petitioner off the road stopped and attempted, without success, to hit Petitioner with a tire iron. Petitioner took the tire iron away from this person and hit the person on the head with the tire iron. Petitioner was arrested for aggravated assault and placed in the county jail. At the same time, he and two companions were charged with forgery for purchasing beer with worthless bank checks. Petitioner was told that he would not be tried until after the grand jury convened, and that he would have to wait in the county jail in the interim, a period of four months. Petitioner escaped from the county jail with the help of two other inmates and made his way to Chicago, Illinois. He was subsequently arrested and returned to Tennessee after he waived extradition. Petitioner was thereafter tried and convicted of aggravated assault, forgery, and grand theft and sentenced to three years imprisonment. On January 30, 1970, Petitioner's grand larceny conviction was reduced to a misdemeanor charge of attempt to commit a felony. His three year sentence was commuted and he was granted parole and immediately released after having served eighteen months in jail. Petitioner received a pardon from the governor of Tennessee for the felony convictions resulting from the 1968 arrests. CHARGE TWO In 1973, Petitioner was arrested and convicted of drunk driving in California and placed on probation. On August 2, 1974, in Palm Springs, California, Petitioner was arrested and charged with suspicion of burglary, a violation of California Penal Code 459. His probation from the 1973 conviction was violated, and he was sentenced to sixty days in jail and given two years of probation. The charge of suspicion of burglary was reduced to trespassing. Petitioner was intoxicated and was trespassing when arrested in August 1974. Petitioner testified without contradiction that he was not attempting to steal anything. CHARGE THREE In September 1980 in Riverside, California, Petitioner was arrested and charged with possession of a device for arson. Petitioner had been threatened by a gang after he identified a gang member as having stabbed a member of another gang. When three carloads of gang members came to his place of residence to threaten him, Petitioner made a Molotov cocktail and threw it in the street to disperse the gang members and to get the attention of the police. This charge was subsequently dismissed. CHARGES FOUR AND FIVE On May 13, 1988, Petitioner was arrested in Chicago, Illinois, and charged with unlawful use of a weapon and aggravated assault. On July 26, 1988, he was charged with aggravated assault; unlawful use of a weapon/gun; unlawful use of a weapon/tear gas; unlawful use of a weapon/blackjack; and failure to register a firearm. These arrests resulted from Petitioner's attempts to reduce drugs and prostitution in his neighborhood as a pro-active vigilante. On May 13, he fired two warning shots from a .25 caliber pistol into the ground to discourage three would-be attackers. Though the assailants left, an eyewitness filed a complaint with the police which resulted in Petitioner's arrest. On July 26, 1988, Petitioner was arrested while again acting as a vigilante by the same officer who had arrested him on May 13. He had on his person at the time of his arrest an unregistered firearm, a blackjack, and mace. These charges were dismissed when the arresting officer failed to appear in court. CHARGE SIX Petitioner heard threats against himself and his family because of his efforts to cleanup his neighborhood. On February 3, 1989, Petitioner went to a bar which the people who had been threatening him frequented. He confronted these persons and fired four shots from a .357 firearm into the ceiling. Petitioner was charged with criminal damage to property, reckless conduct, and unlawful use of a weapon. The charge of criminal damage to property was dismissed, but he was found guilty on the other two charges. Petitioner was given a conditional discharge and ordered to pay $264.00. The conditional discharge was revoked in June 1990. CHARGE SEVEN On May 18, 1989, Petitioner was arrested in Chicago on a traffic violation and charged with resisting or eluding an officer. Petitioner was intoxicated and was driving around setting off firecrackers in the street when the police attempted to pull him over. Because he could not find a place to stop, he circled the block a few times before stopping the car. He was adjudicated guilty and had his driver's license revoked for three years. REHABILITATION Petitioner is an alcoholic, and his arrests can be attributable, in part, to the influence of alcohol. Petitioner has been an active participant in the Miami, Florida, Veterans Affairs (VA) Medical Center Substance Abuse Clinic since October 11, 1989, and has consistently abstained from alcohol since September 7, 1989. Since 1989, Petitioner has lived and worked in Florida. Petitioner has no criminal record since moving to Florida in 1989 and enrolling in the VA substance abuse program. Petitioner has worked for Kent Security since January of 1991, and his employer considers Petitioner to be an outstanding employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which grants Petitioner's application for licensure as a Class D Security Officer. DONE AND ORDERED this 3rd day of February, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Division of Licensing The Capitol MS 4 Tallahassee, Florida 32399-0250 Mr. James J. Killacky #206 1660 Northeast 150th Street North Miami, Florida 33181 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995), 1/ and Florida Administrative Code Rules 11B-27.0011(4)(a) and (b), 2/ by failing to maintain the qualifications established in Sections 943.13(4) or (7); and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating law enforcement officers. Respondent is certified as a law enforcement officer pursuant to Correctional Certificate 92776 and is employed as a correctional officer by the Florida Department of Corrections. Respondent married Ms. Minnie Williams on May 6, 1988, in Lake City, Florida. They had one child, Blake, in 1990. They separated in September, 1993, and were divorced in November, 1994. The court awarded custody of the child to Respondent. In 1988, Respondent was in the Navy, stationed aboard the USS Saratoga, and based in Virginia. After Respondent and Ms. Williams were married, Respondent returned to Virginia. Ms. Williams remained in Lake City for several months before moving to Virginia to live with Respondent. Approximately one year after the marriage, problems developed in the marriage. Ms. Williams did not assist in the daily needs of the household, was unable to stay in school, and was not able to keep a job. Respondent's efforts to solve the marital problems were unsuccessful. His attempts at counseling failed to improve communications between the couple. In late 1989, Respondent informed Ms. Williams that the marriage was not going to work. He told Ms. Williams that he thought they should divorce. Ms. Williams returned to her mother's home in Lake City. Respondent's ship was transferred to Mayport, Florida in 1990. Ms. Williams did not want a divorce and did not want to separate from Respondent. Sometime in 1990, Respondent left the Navy and obtained employment with the Department of Corrections. Between 1990 and 1993, the couple maintained the marriage in an effort to provide a home for their child. Whenever Respondent attempted to discuss divorce, it resulted in a heated argument. Ms. Williams frequently threatened to "ruin" Respondent. The Wrench On March 9, 1993, Respondent counseled a co-worker who was distraught over her husband's affair. Respondent learned that the woman with whom the husband was having an affair was Respondent's wife. Respondent went home to pack his clothes and leave home. An argument ensued regarding Ms. William's infidelity. Respondent packed some of his personal belongings and left home. At approximately 11:00 p.m. on the same day, Respondent returned home for more of his personal belongings. Respondent was still very angry. Respondent and Ms. Williams became involved in another argument. During the argument, Respondent continued to pack his things. He retrieved a large wrench from his closet. Respondent was walking down the hallway leading from the bedroom to the front door. Respondent had the wrench in one hand and other personal belongings in the other hand. Respondent told Ms. Williams that this time he was leaving for good. It was approximately 12:10 a.m. on March 10. Ms. Williams told Respondent that she would get him fired and get custody of their child. Respondent turned abruptly around to face Ms. Williams. Ms. Williams was startled and frightened. She ran into the bedroom from the hallway where she scraped her leg on a jagged corner of the bed, fell, and struck her right hand on the open sliding glass door of the bedroom. Respondent never struck Ms. Williams in any way, with his hands, the wrench, or otherwise. The injuries to Ms. Williams were minor. Respondent left. Ms. Williams spent the night in her car. The next day she reported the incident to the Columbia County Sheriff's Office (the "Sheriff"). Ms. Williams reported to the investigating officer that Respondent beat her with his hands and a wrench for about 15 minutes. The injuries observed by the investigating officer were not consistent with such a beating. The injuries to Ms. Williams were consistent with a trip and fall. Ms. Williams had a three inch cut on her left leg at approximately the height of the corner of the bed. She also had a bruise on her right hand and some swelling. Ms. Williams did not seek medical treatment for her injuries. On March 16, 1993, the state attorney charged Respondent with misdemeanor battery. On April 5, 1993, Respondent entered into a Misdemeanor Intervention Agreement scheduled for six months. The agreement was terminated early on September 3, 1993. Respondent established a separate residence. Respondent had no further relations with Ms. Williams except those necessary for the care of their child. The Lip Respondent resided with his girlfriend and shared her car. Ms. Williams used Respondent's truck to commute to work. On March 27, 1994, Respondent went to Ms. Williams house to pick up clothes and diapers for his son. Ms. Williams routinely failed to deliver those items when she dropped off their child to Respondent. Ms. Williams was not home, and Respondent waited for her. When Ms. Williams arrived in Respondent's truck, the truck was driven by Ms. Williams' boyfriend. Respondent was angered that Ms. Williams' boyfriend was driving Respondent's truck. Ms. Williams and her boyfriend attempted to turn the truck around and leave. Respondent ran behind the truck so that the vehicle could not be turned around. Ms. Williams and her boyfriend were angry that Respondent blocked their exit. Ms. Williams and her boyfriend got out of the truck. The boyfriend and Respondent engaged in a physical altercation. During the altercation, Ms. Williams attacked Respondent. She hit and kicked him and jumped on his back. Either Respondent or the boyfriend inadvertently struck Ms. Williams in her lip. She went to the Lake City Medical Center for medical treatment. At the Medical Center, Ms. Williams reported the incident to the Sheriff. Her injuries were minor. On April 6, 1994, the state attorney charged Respondent with misdemeanor battery. He entered a plea of nolo contendere. The court withheld adjudication and placed Respondent on supervised probation for one year. On May 27, 1994, the supervised probation was converted to unsupervised probation with the provision that Respondent was not to contact Ms. Williams. The Window On April 4, 1994, Ms. Williams drove to Respondent's house to pick up their child. Respondent's girlfriend and mother were inside the house with him. Respondent went outside the house to the car. Ms. Williams got out of the car. She became belligerent and verbally abusive toward Respondent. Respondent told Ms. Williams to leave. Ms. Williams backed away from Respondent, struck the car window with her posterior, and the window broke. Ms. Williams became angrier. She threatened to have Respondent "messed up." Ms. Williams left with her child and went to her aunt's house. She telephoned the Sheriff and filed a complaint. On April 25, 1994, the state attorney charged Respondent with criminal mischief. Respondent determined that the criminal charges would be dropped if he paid for the window. Respondent gave Ms. Williams a money order for $159. On May 25, 1994, the state attorney filed a nolle prosequi declining to prosecute Respondent. In November, 1994, Respondent obtained custody of the only child of the marriage with Ms. Williams. Respondent has retained custody of the child. The Knife On February 1, 1995, Ms. Williams went to Respondent's house to deliver some clothes for their son. They went into the kitchen. Ms. Williams asked about reconciliation. Respondent stated that he wanted nothing to do with Ms. Williams. She became angry. She told him that she was going to "fix him." Respondent told Ms. Williams to leave, and she did. On February 2, 1995, Ms. Williams telephoned the Sheriff. She claimed Respondent had threatened her with a knife and beaten her for 15 to 30 minutes when she was at his home the previous day. Respondent did not batter Ms. Williams. He did not threaten her with a dangerous weapon. The investigating officer observed no injuries on Ms. Williams. She did not seek medical treatment for the alleged injuries even though she knew she was pregnant at the time with her boyfriend's child. A neighbor observed Ms. Williams leaving Respondent's home on February 1, 1995. She had no observable injuries and was gesturing to Respondent as she left. The state attorney charged Respondent with two misdemeanors, battery and exhibiting a dangerous weapon. The court found respondent not guilty of the latter offense but guilty of the former. The court sentenced Respondent to one year of unsupervised probation with the special condition that there be no contact with Ms. Williams. The Handgun On February 10, 1995, Respondent and Ms. Williams were driving in separate cars near the Gateway Plaza. Ms. Williams filed a complaint with the Sheriff's Office. She alleged that Respondent drove beside her and pointed a handgun at her. The state attorney charged Respondent with improper exhibition of a dangerous weapon. On October 3, 1995, the court found Respondent not guilty of the offense. Respondent did not exhibit a dangerous weapon. Paternity In 1995, Ms. Williams became pregnant with the child of her boyfriend. Ms. Williams charged Respondent with paternity. Paternity tests proved that Respondent was not the father of the child. Respondent had not had sex with Ms. Williams since 1993. Other Matters After their divorce, Ms. Williams repeatedly threatened Respondent by stating that she would get him fired and get custody of their child. She filed approximately 20 complaints against Respondent with the Sheriff's Office. She also contacted the former Department of Health and Rehabilitative Services to report Respondent for child abuse. Respondent did not report the criminal actions filed by Ms. Williams to his employer and received a written reprimand for not reporting the criminal matters. Respondent is still employed by the Department of Corrections.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 943.1395(6) and (7) and Rules 11B-27.0011(4)(a) and (b) and dismissing the Administrative Complaint. RECOMMENDED this 6th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.
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.
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.
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, Kenneth Hart (Hart), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hart. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hart had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hart and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Hart filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hart denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hart on May 22, 1986, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Hart used marijuana on approximately three occasions and cocaine on approximately three occasions, that such use was sporadic and infrequent, and that such use occurred more than two years prior to the interview. Notwithstanding the County's conclusion, based on its investigation and analysis of Hart's background, that Hart possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his infrequent and sporadic use of marijuana over 5 years ago. The Commission's action is not warranted by the proof. Here, Hart, born February 15, 1962, used marijuana and cocaine approximately three times over 5 years ago when he was 21-22 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Currently, Hart has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hart has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Kenneth Hart, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989.
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.
