The Issue Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character. At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26) On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle, Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against Respondent. DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143 Respondent filed no post-hearing proposals. The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes: Covered in FOF 1. Covered in FOF 2. 3, 4, 7. Covered in FOF 3. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4. Covered in FOF 4. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found. Except as subordinate and unnecessary, covered in FOF 6. Rejected as unnecessary. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7. Except as subordinate and unnecessary, covered in FOF 8. Rejected as unnecessary. 14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9. 17-18. Rejected as unnecessary. 19, 20, 21. Covered in FOF 10-11, and 14. 22. Rejected as unnecessary. 23, 24. Covered in FOF 12. 25. Rejected as unnecessary. 26, 27. Except as subordinate and unnecessary, covered in FOF 13. 28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14. Covered in FOF 16. Except as subordinate and unnecessary, covered in FOF 17. 33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17. 36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18. Rejected as unnecessary. Covered in FOF 20. Except as subordinate and unnecessary, covered in FOF. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Gerald T. Ping 6690 Southwest 88th Trail Okeechobee, Florida 34574 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined is whether Respondent, Larry Beard, violated section 473.323(1)(l), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Based on the testimony of the witnesses and documentary evidence presented in this proceeding, the following Findings of Fact are found: Petitioner is the state agency charged with regulating the practice of certified public accounting in the State of Florida, pursuant to section 20.165 and chapters 455 and 473, Florida Statutes. At all times relevant to these proceedings, Respondent has been licensed as a certified public accountant by the State of Florida, having been issued license number AC 007921 on September 4, 1979. Respondent’s license is currently listed as “current, inactive,” and expires December 31, 2015. No evidence of any prior discipline against Respondent’s license was offered. On or about November 10, 1994, an Information was filed against Respondent by the State Attorney for the Sixth Judicial Circuit in and for Pinellas County, charging him with six counts: 1) sexual battery, a capital felony; 2) lewd and lascivious act in the presence of a child under the age of 16 years, a second-degree felony; 3) handling and fondling a child under the age of 16 years, a second-degree felony; 4) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; 5) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; and 6) handling and fondling a child under the age of 16, a second- degree felony. The victim in the criminal proceedings was nine years old. Counts 3 and 4 were nolle prossed. After a jury trial, on October 16, 1996, Respondent was found guilty of Counts 1 and 2. Respondent pled nolo contendere to Counts 5 and 6. On November 1, 1996, Respondent was originally sentenced to life in prison for Count 1 and 40 years in prison for Count 2, to be imposed consecutively. Respondent appealed his conviction and sentence to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 96-4909 (Fla. 2d DCA Mar. 24, 1999), the Second District affirmed the convictions for Counts 1 and 2, but vacated the judgments with respect to Counts 5 and 6, because the trial court failed to renew the offer of assistance of counsel to Mr. Beard at the plea hearing. For the same reason with respect to the sentencing hearing, the sentences for all four counts were reversed, and the case was remanded for resentencing for Counts 1 and 2. The Court directed that Respondent be given the opportunity to withdraw his plea with respect to Counts 5 and 6. On November 24, 1999, Respondent was re-sentenced to the same sentences for Counts 1 and 2. Counts 5 and 6 were nolle prossed. Respondent again appealed the sentencing order to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 2D00-271 (Fla. 2d DCA June 26, 2002), the Second District affirmed the judgment and sentence for Count 1 and found no error in the application of a sexual predator designation. With respect to Count 2, the State conceded that the 40-year sentence was a scrivener’s error (the trial judge orally imposed a 40-month sentence at the sentencing hearing), and the court found that it was imposed based upon an incorrect sentencing scoring sheet. The case was again remanded to the trial court to address the sentence in Count 2. The sentence ultimately imposed for Count 2 is not in the record of this proceeding. Regardless of the changes in sentencing, the fact remains that Respondent was convicted of capital sexual battery in violation of section 794.011(2), Florida Statutes, and a lewd act upon a child, in violation of section 800.04, Florida Statutes (1993). Respondent has been incarcerated within the Florida Department of Corrections since November 7, 1996, and remains incarcerated. On or about January 6, 1998, Respondent requested that his license be placed in a “current, inactive” status. He did not at that time, or anytime thereafter before December 2012, notify the Department that he had been convicted of any crime. Respondent used two other individuals, James Galloway and Penny Loulargous, to assist him in maintaining his license in an inactive status after his incarceration. His address was at different times listed “in care of” these individuals. In December 2012, Respondent wrote to the Department requesting that his address be changed from Mr. Galloway’s address to the Okaloosa Correctional Institution located in Crestview, Florida. Upon receiving the address change request, the Department opened an investigation to determine why he was in prison. However, in June 2013, the investigation was closed, in error, for lack of jurisdiction. In July 2014, correspondence was sent to accountancy licensees whose licenses were in inactive or delinquent status about an amnesty program authorized by legislation passing during the 2014 session. Respondent responded to the Department correspondent with a letter of his own, asking questions regarding the continuing education requirements for attaining active status. As a result, the Department re-opened the investigation that was closed in June 2013. This re-opened investigation led to the charges at issue in these proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Accountancy enter a final order finding Respondent guilty of violating section 473.323(1)(l), Florida Statutes, and revoking his license. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2015.
The Issue The issue is whether Respondent has failed to maintain the qualifications for certification as a correctional officer, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on August 31, 1994. She was issued correctional certificate number 145457. At all times material to this proceeding, Respondent was employed as a corrections officer at the Union Correctional Institution (UCI). She worked the 4:00 p.m.-12:00 midnight shift. R. E. Jernigan, Correctional Officer Inspector at UCI, received an anonymous telephone call on January 6, 1995. The caller stated that Respondent would be attempting to bring drugs into the institution on that date. As a result of this information, Inspector Jernigan arranged for a search of the correctional officers beginning the 4:00 p.m.-12:00 midnight shift. This included a search of the Respondent and her belongings. Correctional Officer Dana L. Alverez assisted in the search. Respondent gave her jacket to Officer Alverez to search. In the upper left pocket of the jacket, Officer Alverez discovered three fingertips cut from a rubber glove, containing what appeared to be marijuana. Officer Alverez removed the substance from the jacket and turned it over to Lieutenant D.L. Nichols. Lieutenant Nichols retained the substance until he turned it over to Inspector Jernigan. Inspector Jernigan notified the Union County Sheriff's Office about the results of the search. Lieutenant Gary Seay of that office responded to the institution. Lieutenant Seay took possession of the substance and placed Respondent under arrest. Lieutenant Seay packaged and sealed the substance in an evidence envelope. He mailed the package via certified mail to the Florida Department of Law Enforcement laboratory in Jacksonville for analysis. Crime Laboratory Analyst Niels H. Bernstein, tested the substance submitted by Lieutenant Seay in this case. Mr. Bernstein examined the package in which the substance was enclosed. He determined that the package was properly sealed. Mr. Bernstein then opened the package and tested the substance according to industry approved methods. He determined that the submitted substance was cannabis, 0.6 grams. UCI terminated Respondent's employment. Respondent entered into and successfully completed a Pre-Trial Intervention Program in regards to the criminal charges filed against her. Upon completion of the program, the criminal charges were dismissed. Respondent's testimony that she did not know her jacket contained cannabis is not credible.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Petitioner enter a Final Order revoking Petitioner's certification as a correctional officer. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Linda L. Paige-James Post Office Box 614 Macclenny, Florida 32063 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire 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. Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Linda Dunham (Dunham), has been employed by the County as a correctional officer since February 26, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Dunham. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Dunham had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Dunham and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine, cannabis and amphetamine. Following receipt of the Commission's letter of denial, Dunham filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Dunham denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Dunham on November 23, 1987, at which time she admitted that she had used marijuana, cocaine, and amphetamines. Regarding such use, the proof demonstrates that in 1970 Dunham was traveling with a dinner theatre and would occasionally take amphetamines, which she obtained from a friend, to stay awake. In the early 1970s, Dunham also used marijuana approximately twice a month over a three-year period. After terminating such use in the early 1970s, she did not again use marijuana until 1985 when she tried it one time at a birthday party. Dunham's use of cocaine was sporadic and infrequent, totalling no more than 5 times over the course of her life, with the last time being in 1985. Other than as heretofore found, Dunham has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Dunham's background, that Dunham possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her prior use of controlled substances. The Commission's action is not warranted by the proof. Here, Dunham, born January 22, 1953, was 18-20 years of age when she used amphetamines and marijuana in the early 1970s, and her use of cocaine was limited to approximately five times during the course of her life, with the last time being in 1985. But for having tried marijuana one more time in 1985, Dunham has not otherwise used controlled substances. Considering the totality of the circumstances, Dunham's use of controlled substances was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Dunham has been employed by the County as a correctional officer, a position of trust and confidence, for over one year. Her annual evaluations have been satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Dunham was certified by the Commission on June 17, 1988, for completion of the 675-hour basic correctional officer course, and has received two commendations during the course of her employment with the County. She is current on all her financial obligations, and otherwise enjoys a good reputation in the community. Overall, Dunham has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Linda Dunham, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On August 10, 1988, Metropolitan Dade County Department of Corrections and Rehabilitation, as the employing agency, applied for certification as a correctional officer on behalf of petitioner, Eddie Lewis (Lewis). Accompanying such application was an affidavit of compliance, dated August 10, 1988, signed by the Director of Metropolitan Dade County Department of Corrections and Rehabilitation (Department of Corrections) which comported with existing law, and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lewis had met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provisions of section 943.13 is the requirement that the applicant of good moral character. 1/ By letter dated November 7, 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission) notified Lewis and the Department of Corrections that his application for certification as a correctional officer was denied for lack of good moral character because: You made an intentional, unlawful threat by word or act, with a deadly weapon, a shotgun, but without intent to kill, to do violence to Walter Harrell, coupled with an apparent ability to do so, and did an act which created in Walter Harrell a well-founded fear that such violence was imminent. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a Section 120.57(1), Florida Statutes, hearing. In his request for hearing, Lewis specifically denied that he had committed any of the acts which the Commission contended demonstrated a lack of good moral character. The Commission forwarded Lewis' request for hearing to the Division of Administrative Hearings to conduct a formal hearing. At hearing, the Commission offered no proof that Lewis had committed any of the acts contained in its letter of denial, or which otherwise rendered questionable the prima facie showing of good moral character demonstrated by Lewis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order approving Lewis' application for certification as a correctional officer. DONE AND ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April 1989.
Findings Of Fact 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.
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. /
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 31st day of December, 1991.
