Findings Of Fact Respondent was certified as a law enforcement officer on April 6, 1984, and has been continuously so certified since that time. After the Tampa police arrested Doug Jernigan in August, 1986, on charges of armed robbery committed between January and July, 1986, including bank robberies, the Tampa police learned that on July 18, 1986, Jernigan rented a limousine and visited several bars with one of his companions being a police officer. When this information was passed to the Bureau of Internal Affairs, an investigation was started, and it was learned that Respondent was the police officer involved with Jernigan on the evening of July 18-19, 1986. Thereafter, the investigation centered on Respondent's knowledge of Jernigan and any criminal offenses of which Respondent may have been aware. During this investigation, Respondent cooperated fully with the investigators, including the taking of a polygraph test, and two or more taped interrogations. In addition, the investigator interrogated the chauffeur of the limousine, Jernigan, and at least one other passenger who was in the limousine on July 18, 1986. All of these witnesses denied that any drugs were used in Respondent's presence, stated that the party continued for several hours during which time the four people involved consumed a large quantity of alcohol, and that all were quite intoxicated. Respondent was only casually acquainted with Jernigan who he had seen as an employee of the Temple Terrace Bar on previous occasions. On July 18, Respondent encountered Jernigan at the Temple Terrace Bar as a patron who told Respondent that he had hired a limo for the evening and invited Respondent to join him for some drinks. Jernigan had a large roll of bills which he told Respondent he had won at the gambling table at Atlantic City. Respondent joined Jernigan, and they proceeded to another bar where a third and perhaps fourth companion was picked up. The limo then drove the new companion (McGahee) to his residence to change clothes, and while McGahee and Jernigan were let off, the driver took Respondent to Respondent's apartment to change clothes, waited for him, returned to pick up Jernigan and McGahee, and then they proceeded on the bar hopping escapade. The investigation by the Internal Affairs Division disclosed that Respondent had no knowledge of the crimes Jernigan had committed between January and July, 1986. During a second interrogation of Respondent which continued for two hours by an experienced investigator, Respondent was repeatedly told that the other occupants of the limo had acknowledged use of drugs during the night of July 18-19, and that the polygraph exam showed Respondent was not telling the whole truth about his knowledge of Jernigan's criminal activities and of the use of drugs on July 18. Respondent, after earlier denying that any drugs were used in his presence, finally acknowledged that maybe a joint (of marijuana) was passed around in the limo, but that he never took a puff. Once Respondent acknowledged during this two hour interrogation that maybe marijuana was smoked that evening, this became a fact in all further questioning of Respondent regarding his knowledge of Jernigan's criminal activities and further questioning regarding the use of cocaine on that evening. Respondent steadfastly denied any knowledge of any other activities of Jernigan or that he ever saw anyone use cocaine on July 18-19, 1986. James McGahee was one of the passengers in the limo July 18-19. Either he or Jernigan had some that evening, and when they were dropped off at McGahee's apartment for McGahee to change clothes, they ingested some cocaine. McGahee does not smoke marijuana, and to his knowledge, no marijuana was used in the limo that evening. McGahee operated a heavy duty wrecker and had seen Respondent on several occasions at the scene of an accident to which McGahee and his wrecker had been called. He had never socialized with Respondent prior to or since July 18- 19, 1986. Respondent denies that, to his knowledge, any marijuana or other drugs were used in his presence on the evening of July 18-19, 1986, and that his sworn statement taken during his two hour interrogation that a joint had been passed around in the limo was not true. He gave the statement because the interrogator had convinced him the other passengers had admitted using drugs, and he assumed they had done so. To Respondent marijuana was deemed less serious than cocaine.
The Issue The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.
Findings Of Fact Petitioner filed an application for licensure as a real estate salesman on or about January 22, 1991. Respondent denied Petitioner's application on or about April 25, 1991. The sole basis for Respondent's denial of Petitioner's application was Petitioner's status as a defendant in multiple civil lawsuits filed in the United States District Court for the Southern District of Florida. Petitioner voluntarily stated in answer to Question 8(b) on his application that he was a defendant in those suits. The lawsuits at issue arose from the failure of Centrust Savings Bank. Petitioner was President of Centrust Savings from sometime in February, 1988, to sometime in July, 1989. Petitioner served on the Board of Directors of Centrust from sometime in August, 1987, to sometime in July, 1989. The lawsuits allege that Petitioner and other officers and directors of Centrust breached their fiduciary duties to the corporation and violated federal securities laws. The allegations against Petitioner in the law suits at issue are nothing more than allegations in civil suits. Petitioner has motions to dismiss in each law suit. There has been no judicial determination or finding of wrongdoing by Petitioner in any of the law suits in which Petitioner is a named defendant. The uncontroverted evidenced established that Petitioner is an honest, truthful, and trustworthy individual. Petitioner is of good moral character and has an impeccable reputation for honesty and fair dealing in the business community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for licensure as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of January 1992. DANIEL MANRY 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 23rd day of January 1992.
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, Roberto Mera (Mera), has been employed by the County as a correctional officer for approximately two years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Mera. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Mera had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Mera and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. You have unlawfully and knowingly purchased stolen property. Following receipt of the Commission's letter of denial, Mera filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Mera denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Mera on April 16, 1987, at which time he divulged that he had used marijuana one time in 1977, that he had used cocaine one time in 1982, and that he had purchased a stolen VCR for $100 in 1982. While the used VCR he purchased was apparently stolen property, Mera did not know such fact when he purchased it, and turned it over to the police when they advised him it was stolen property. Other than heretofore noted, Mera has never used marijuana or cocaine. Notwithstanding the County's conclusion, based on its investigation and analysis of Mera's background, that Mera possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidents. The Commission's action is unwarranted. Here, Mera, born August 20, 1963, used marijuana one time 12 years ago when he was 14-15 years of age, and cocaine one time 7 years ago when he was 19 years of age. At no time did he knowingly purchase stolen property. Such isolated and dated usage of marijuana and cocaine can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Mera has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Mera has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Roberto Mera, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact The Respondent, Willie A. Owens, was certified by the Criminal Justice Standards and Training Commission on April 27, 1984, and was issued Certificate Number 02-84-002-01. In February, 1985, the Respondent was employed in a training position as a Highway Patrol Officer and had been in that position for about twelve months in February, 1985. T. 64. On the evening of February 10, 1985, the Hillsborough County Sheriff's Officer initiated an investigation into a complaint of involuntary sexual battery alleged to have been committed by the Respondent on February 9, 1985. T. 9-10, 24, 13. (The Respondent has not been charged with this offense in this case.) Pursuant to that investigation, between the hours of 12:30 and 1:30 A.M. on February 11, 1985, Detective David Gee, Hillsborough County Sheriff's Office, accompanied by Lieutenant P. E. Dixon, Florida Highway Patrol, Lieutenant Maxwell, and others, drove to the residence of the Respondent. T. 10, 25. The Respondent came to the door fully dressed and was reasonably alert. T. 18-19. The Respondent was asked if the group could come inside his residence, and he invited them in. T. 25. After the group was inside, Detective Gee stated that the Respondent was a suspect in a sexual battery case. T. 25, 65, 11. Detective Gee then advised the Respondent of his rights pursuant to the Miranda requirements. T. 25, 11-12. The Respondent signed a waiver of rights form and consented to be questioned at that time, and did not ask to have a lawyer present. T. 11-12. During the interview inside, the Respondent and Detective Gee were sitting on a couch. T. 15. The Respondent said that he had had a female companion (the alleged victim) in his home on the night of February 9, 1985, (he was not on-duty) and that she had produced some marijuana that she had brought with her to the Respondent's home. T. 14-15. The Respondent said that he and she smoked two marijuana cigarettes, characterized in this record by one law enforcement witness as a small amount of marijuana. T. 14-15, 29. Detective Gee then looked into an ashtray that was directly in front of him on a coffee table in front of the couch and saw the end of one used marijuana cigarette. T. 15. He asked the Respondent if that were part of the marijuana and the Respondent said yes, it was. T. 15. The used bit of marijuana was very small, the cigarette having been burned all the way to the end of the paper. T. 16-17. There was only one used marijuana cigarette in the ashtray. T. 15. (There is a conflict of testimony as to whether there were one or two remains of marijuana cigarettes in the ashtray. Detective Gee is credited with the more reliable memory of what was in the ashtray since he was the one who took the substance into custody.) Detective Gee then seized the bit of marijuana, which was in his plain view. T. 17. He did not have a search warrant. T. 33. The bit of substance seized by Detective Gee was cannabis or marijuana. T. 15, 16-17, 26-29. Detective Gee had permission to search the residence of the Respondent, but there is no evidence that the Respondent had any other marijuana or any other controlled substance in his possession. T. 34-35, 36-37, 66-67. Detective Gee did not have the substance analyzed to determine chemically if it was cannabis because he did not intend to charge the Respondent with a crime. T. 22. The authorities did not charge the Respondent with any crime connected with the substance found in the ashtray. T. 19-20. The Respondent had possession of the bit of marijuana seized by Detective Gee because he knew what it was and it was under his control and possession in his home, and his female companion was no longer there. Additionally, the Respondent possessed and consumed some small portion of marijuana provided to him by his female companion on February 9, 1985. The record does not contain precise evidence as to the amount, but it may be inferred from the visual evidence and testimony that the amount was substantially less than 20 grams. A law enforcement officer has a duty to enforce laws forbidding the possession and use of controlled substances. T. 30. A Highway Patrol Officer normally is assigned alone in a car, without direct supervision. T. 30-31. Such an officer may, on occasion, have a duty to seize controlled substances and destroy the same if a charge of illegal possession or use is not to be filed. T. 32. Saving the controlled substance for personal use would be a violation of that duty. Id. In such event, it is likely that there would be little complaint from the motorist from whom the controlled substance was seized. There have been no complaints concerning the work performed by the Respondent while employed by the Highway Patrol. T. 33. He is considered to be honest and trustworthy by reputation. T. 59-60.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order finding that the charge of a lack of good moral character has not been proven, that the law enforcement certificate issued to the Respondent, Willie A. Owens, not be revoked, and that the administrative complaint be dismissed. DONE and RECOMMENDED this 27th day of April, 1987 in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. HEARING OFFICER 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 27th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4141 The following are rulings upon proposed findings of fact; by number, which have been rejected in this recommended order. Findings of fact proposed by the Petitioner: 4-5. It appears that the Respondent was advised of the purpose of the visit after the group had entered, but the fact is not important to the result in the case. 8-9. It is true that both Detective Gee and Lieutenant Dixson have had significant experience in the identification of cannabis, but the proposed finding is subordinate. 9. The testimony of Detective Gee, that the remains of only one cigarette was in the ashtray, is adopted in this recommended order. 11. Rejected as not credible. Findings of fact proposed by the Respondent: Two cigarettes were involved initially. While possession originated with the Respondent's companion, the Respondent then also possessed the cannabis. Rejected as not credible and contrary to the evidence. 8-9. The testimony of the Respondent (admission), Lieutenant Dixson, and Detective Gee was sufficient to establish the character of the substance as cannabis. 10. The evidence cited to support this proposed finding concerning an act of bravery has been ruled inadmissible. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards 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 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Marvin P. Jackson, Esquire 400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603 =================================================================
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
Findings Of Fact In May of 1977, petitioner filled out respondent's form DBR 710-L, with the help of Lee Brewer from whom petitioner proposed to buy a bar. Ms. Brewer typed answers to the questions on the form, which petitioner dictated. One of the questions on the form inquired "Have you ever been arrested?" Although petitioner told Ms. Brewer that he had been arrested for traffic offenses, they decided after some discussion to answer the question no. Petitioner signed the form in the place provided, right under the words, "I swear or affirm under penalty of perjury . . . that the foregoing information is true to the best of my knowledge Joint exhibit No. 3. On October 26, 1977, petitioner amended his answer to the question as to arrests by listing six arrests, two of which were for traffic offenses. Joint exhibit No. 2. No other evidence as to petitioner's moral character was adduced.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for transfer of a beverage license. DONE and ENTERED this 10th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Manuel W. James, Esquire 419 Fleming Street Key West, Florida 33040 Mr. Frances Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 3/Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Fialko had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of food moral character. By letter dated November 1, 1988, the Commission notified Fialko and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, David Fialko, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
Findings Of Fact On March 23, 1981, the Petitioner, Isidro R. Crucet, applied to the Respondent, Department of State, for licensure as a Class "D" (unarmed) and Class "G" (armed) security guard. The application for Class "D" and "G" licensure was denied on September 23, 1981, by the Director of the Division of Licensing pursuant to Section 493.306(2)(b)(1), 493.309(1)(e), 493.319(1)(a), (c), (g) and (p), Florida Statutes. On October 6, 1981, the Petitioner Crucet requested a hearing on the licensure denial. The basis for the Department's denial was the Petitioner's guilty plea on April 24, 1981, on a charge of carrying a concealed weapon following an information being filed against him in Dad County Circuit Court on April 5, 1981, which alleged violations of Section 790.01, Florida Statutes, carrying a concealed firearm, and Section 790.10, Florida Statutes, improper exhibition of a dangerous weapon. Following his guilty plea, the Petitioner Crucet was sentenced to eighteen months probation beginning April, 1981, and adjudication and sentence were withheld. At the final hearing, the Petitioner Crucet, through his interpreter, explained the events which led to his being charged and convicted of carrying a concealed firearm. Since early 1981, the Petitioner has been employed by Minutemen Security Patrol. In April, 1981, he was working the 6:00 p.m.-6:00 a.m. shift guarding a warehouse located at 3050 North River Drive in Miami. Adjacent to the warehouse area which he was guarding was a bar. A patron of the bar wanted to park his car in the warehouse area which the Petitioner was guarding since the bar parking area was full. When the Petitioner refused to allow the bar patron to park in the warehouse parking area, the patron became abusive and threatening. After the bar patron grabbed his neck and shoved him aside, the Petitioner went to his car and returned carrying a 33 caliber gun retrieved from the glove compartment which was lawfully purchased and for which he had received a temporary gun permit. When he reached the area where the bar patron had threatened him and the individual saw the gun, he left in his car. Although the gun was loaded, the Petitioner did not point the gun at anyone nor did he leave the area he was responsible for guarding. Approximately one hour after the incident the police arrived at the warehouse and asked the Petitioner if he had a gun. The Petitioner replied that he did and turned the gun over to the police. He was then arrested and booked on April 5, 1981. The Petitioner arrived in the United States from Cuba on May 1, 1980. He testified that while in Cuba he had worked on trains. He is presently working as an unarmed security guard for the same company which employed him when the incident in question occurred. Since the Petitioner arrived from Cuba, it is impossible at this time for the Respondent Department of State to ascertain from official records his criminal history in that country, if any. In this regard, the Petitioner is not unique and this is a situation that confronts all entrants from countries with whom the United States does not maintain formal or informal diplomatic relations. The Petitioner Crucet produced affidavits from individuals who were friends and neighbors in Cuba and who now reside in the United States. All of these individuals, who include an auto store clerk, a grocery store owner, a Community Service Agency owner and a supermarket owner, attest to his good moral character in Cuba and in the United States since his arrival in 1980. Additionally, the Petitioner's attorney, Jorge Fernandez, testified at the formal hearing that he knew the Petitioner, his family and his employer and would vouch for the good moral character and reputation of the Petitioner. Counsel for the Petitioner informed the Hearing Officer at the close of the final hearing that one of the conditions of his probation prohibit him from receiving a license as an armed security guard without the permission of his probation officer. However, once the Petitioner's probationary period has ended, it is the intention of Mr. Fernandez to attempt to expunge the Petitioner's record and reapply for a license as an armed security guard. The Respondent Department of State offered no evidence to refute the Petitioner's account of the incident which resulted in his guilty plea for carrying a concealed weapon or the character affidavits filed following the close of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner Isidro R. Crucet for licensure as a Class "D" unarmed security guard be granted. DONE AND ENTERED this 6th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Department of Administration Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: Jorge Luis Fernandez, Esquire 221 S.W. 22nd Avenue Suite 200 Miami, Florida 33135 James V. Antista, Esquire Assistant General Counsel Department of State Room 106, R. A. Gray Building Tallahassee, Florida 32301 Honorable George Firestone R. Stephen Nall, Esquire Secretary of State General Counsel The Capitol Department of State Tallahassee, Florida 32301 The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE ISIDRO R. CRUCET, Petitioner, vs. CASE NO. 81-2625S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida, Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Johnny Johnson (Johnson), has been employed by the County as a correctional officer for approximately three years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Johnson. Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Johnson had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. 3/ By letter dated November 1, 1988, the Commission notified Johnson and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Johnson filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Johnson denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a preemployment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Johnson on May 14, 1985, at which time he admitted that he had used marijuana on two occasions. At that time he estimated the date he last used marijuana to have been 1972; however, the proof demonstrates that he misapprehended the date of last usage, and that the proper date was December 1970. His last use consisted of "passing a joint" ,with some college friends when he was 23 years of age. Prior to that, he had used marijuana once while a solider in Vietnam. Notwithstanding the County's conclusion, based on its investigation and analysis of Johnson's background, that Johnson possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 18 years ago. The Commission's action is unwarranted. Here, Johnson used marijuana two times, the last time being over 18 years ago when he was 23 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Currently, Johnson has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, Johnson was employed as an administrative assistant by Dade County, Department of County and Economic Development, for two and one-half years. He has been certified as a substitute teacher in Dade County since 1982, and has been a member of the Air Force Reserve for three years, with several letters of commendation Overall, Johnson has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Johnny Johnson, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1989.
