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 Petitioner has been repeatedly convicted of offenses against the criminal law, from vagrancy on December 31, 1958, to gambling on May 3, 1976. He has been convicted in the courts of three states on various charges, including assault and battery, aggravated assault and battery, carrying a concealed weapon, destroying city property, disturbing the peace, resisting arrest, battery on a police officer, non-support, possession of dangerous drugs and possession of marijuana. In addition, he was arrested for and charged with assignation and vagrancy; and posted bonds which were forfeited. According to a personal questionnaire petitioner filled out on March 16, 1978, petitioner is single; he has been employed at the same place since 1976; and he has lived at the same address since 1974.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Leonard McMullen (McMullen), has been employed by the County as a correctional officer since June 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of McMullen. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that McMullen had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified McMullen and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, McMullen filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, McMullen denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a preemployment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of McMullen on March 8, 1985, at which time he admitted limited use of marijuana some 9 years previously. Here, the proof demonstrates that McMullen's use of marijuana was indeed limited, probably numbering little more than twice, and that his use occurred during high school, when he was 17 or 18 years of age. Since that time, McMullen has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of McMullen's background, that McMullen possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 13 years ago. The Commission's action is unwarranted. Here, McMullen, born January 7, 1958, used marijuana approximately two times, the last time being over 13 years ago when he was 17 or 18 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Following his graduation from high school, McMullen joined the U.S. Army, where he served honorably for three years as a military policeman. He enjoyed a secret security clearance, and his periodic drug screenings met with negative results. Following his discharge from the service, McMullen was employed for a few months by Gulf Life Insurance Company, and then by Florida Power & Light Company until he was employed by the County. To date, McMullen has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years, and was recently promoted to the rank of corporal. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, McMullen has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Leonard McMullen, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact Respondent was certified as a correctional officer by the Criminal Justice Standards and Training Commission on February 13, 1987, and was issued certificate number 19-86-502- 05. Respondent is employed as a correctional officer by Metro-Dade Department of Corrections and Rehabilitation and has been so employed since June, 1986. Respondent's current assignment is at the Metro-Dade County Women's Detention Center, Miami, Florida, where she works in different correctional capacities. Respondent was born on March 18, 1956, and attended junior and senior high school in Miami, Florida. She then attended Miami-Dade Junior College on a two-year scholarship, earning an A.A. degree in criminology. She then attended Florida State University in Tallahassee, Florida, earning a Bachelor's degree in criminology. During high school Respondent lost the tips of three fingers on her right hand, as a result of an accident in the factory where she worked. Respondent worked for the Clerk of the Courts, Dade County, Florida, from 1979-1986. At first, she worked in the Clerk's Office itself. She was subsequently assigned to work as a courtroom clerk in the misdemeanor division, and later moved up to working as a courtroom clerk in the felony division. Hector A. Rocafort, a polygraph examiner with the Metro-Dade Department of Corrections and Rehabilitation, administered a polygraph pre- test to Respondent on November 5, 1985. The pre-test involves a discussion/interview between Rocafort and the person being examined prior to the time that the polygraph examination itself is administered. Rocafort made notes of his interpretation of the discussion between Respondent and him. Those notes were never shown to Respondent. Respondent was never advised that any statements made by her to Rocafort could or would be used against her in an administrative forum. The statements subsequently attributed to Respondent, as reported by Rocafort, are not verbatim statements; rather, Rocafort paraphrased statements made by Respondent to him. The statements allegedly made by Respondent were not sworn to by Respondent, and the written interpretation subsequently made a part of her personnel file by Rocafort were not sworn to by him. During the pre-test, Respondent was encouraged to disclose any conduct that was even questionable in her mind, and Rocafort explained legal ramifications to her. For example, he explained that taking items home from work, shoplifting, and petit theft were all the same thing. When a specific dimension of the pre-test format called for time periods or the number of times that conduct was engaged in, Respondent was asked to indicate a time frame or number with which she would feel comfortable. Rocafort explained that the methodology used is to have the examinee make pre-test disclosures in their worst light so that when the actual polygraph examination is administered, he can ask the question "Other than what we have already discussed, have you ever . . . ." That way, the examinee does not have to worry about exact numbers or dates or questionable incidents during the examination and can comfortably answer the polygraph examination questions so as to produce accurate readings. Accordingly, the number of occasions indicated or the time periods indicated during the pre-test need not be accurate. According to Rocafort, Respondent did very well on the actual polygraph examination. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to being arrested and charged with petit theft in 1977. In 1977 Respondent, while attending Florida State University, was in a Woolco Department Store in Tallahassee with another lady she knew. Respondent's companion took off the pair of old "thongs" which she was wearing and put on a new pair of "thongs" which the store had for sale. The "thongs" had a retail value of $1.99. She left the store without paying for them. A Woolco security guard called Respondent and her companion back to the store. Respondent returned to the store, but her companion did not, having gone elsewhere in the mall. Since Respondent had been with the person who committed the theft, the security guard called the police, and Respondent was charged with petit theft. She was taken to jail and brought before a judge the next morning. When she appeared in court, she had no attorney, was scared, and was alone. The judge explained to her that if she pled guilty, she would be required to serve 24 hours of community service. Since she was afraid of what else could happen to her if she did not plead guilty, she entered a plea of guilty and was required to perform 24 hours of community service. She performed her community service at the Salvation Army's nursery and worked there for more than the 24 hours required, working there during the evenings when she had spare time. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to purchasing stolen goods on four occasions, the last time being 1980 when she allegedly purchased a pair of sneakers for $5.00. Respondent purchased items from street vendors several times throughout her life, a common occurrence or "way of life" in her neighborhood. In approximately 1980, while Respondent was working in a restaurant with her mother a man came into the restaurant selling canvas sneakers. Respondent's sister wanted to purchase a pair, so Respondent gave her the $5.00 she needed to buy a pair of sneakers from the vendor. Currently, similar sneakers can be purchased retail for $5.99. Similarly, Respondent purchased undershirts for her baby son when Respondent was 15 years of age. Respondent never considered the fact that the sneakers or the undershirts might have been stolen until Rocafort suggested to her during the pre-test on November 5, 1985, that items bought from street vendors could be stolen property. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to shoplifting ten times, the last time being five years earlier. Respondent has never shoplifted. During the November 5, 1985, polygraph pre-test, Respondent allegedly admitted to using marijuana approximately five times, the last time being two years earlier. Respondent took a single puff from a marijuana cigarette at a party while she was in the 9th or 10th grade, at the age of 15 or 16. Respondent involuntarily took a single puff from a marijuana cigarette, at the insistence of a man she was dating in 1982 or 1983. Respondent has no recollection of puffing a marijuana cigarette other than on those two occasions. Respondent took a pre-employment physical examination on April 10, 1986, at Cedars of Lebanon Hospital, part of which was a urinalysis in which Respondent proved negative for all drugs tested, including marijuana. Respondent took an annual employment physical on March 14, 1990, at Mount Sinai Hospital, part of which was a urinalysis. Respondent proved negative for all drugs tested, including marijuana. Metro-Dade Department of Corrections and Rehabilitation considers, in determining whether an applicant's prior use of controlled substances should be a bar to employment, the severity and frequency of the usage and the lapse of time between the usage and the applicant's employment. If the usage is not severe or frequent and one year has passed between the last usage and the employment application date, then the usage is not considered proximate in time and prior use will not be a bar to employment but will simply be considered along with all of the other factors considered as a result of the background investigation of an applicant. During the November 5, 1985, polygraph pre-test Respondent allegedly admitted to taking minor office supplies totalling approximately $10.00. Respondent, while working as a courtroom clerk for the Clerk of the Courts, Dade County, Florida, was issued pens, pencils, "Wite out", and manila folders to use at her job. When Respondent "used up" the supplies issued to her or if someone took them off her desk in the courtroom, she would have to submit a written request for a replacement. Accordingly, Respondent often took these supplies home to safeguard them and generally brought them back to the job the next day, but may have forgotten on occassion. The polygraph examination, the pre-test, the physical examination, and a background investigation are required to be conducted by the employing agency prior to certification of a correctional officer by Petitioner. By virtue of the fact that Respondent was certified by Petitioner on February 13, 1987, she was determined at that time by Petitioner to be of good moral character up to that date. All allegations of misconduct made by Petitioner in this cause involve dates prior to the date that Petitioner concluded that Respondent had good moral character. Respondent is considered, by reputation, to be honest beyond reproach, to possess integrity, and to be of good moral character. She is an outstanding employee, and has the respect of her supervisors. As one supervisor testified, "She can work with me any time." Respondent possesses, and has maintained, good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against her and dismissing the Administrative Complaint with prejudice. DONE and ENTERED this 31st day of May, 1990, at Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of May, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3, 5, 6, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 11- 15 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 1-23 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 Northwest 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether Respondent, a certified law enforcement officer, committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent was certified by Petitioner on November 3, 1978, and was issued Law Enforcement Certificate Number24368. On or about July 28, 1992, Respondent became the subject of a criminal investigation by the City of Miami Beach Police Department. The criminal investigation involved an allegation of sexual assault at the Respondent's residence. The complaining witness alleged that Respondent sexually assaulted her and that during the course of the sexual assault Respondent used an artificial penis, which was an ice mold in the shape of a penis. The Respondent was read his constitutional rights by the City of Miami Beach Police officers who were conducting the investigation. At approximately 4:40 a.m. on July 29, 1992, the investigating officers began their interview of Respondent. During this interview, Respondent was questioned about the existence of the artificial penis. Respondent indicated that he had not seen an artificial penis in his house. The interview of the Respondent was concluded at approximately 5:15 a.m. on July 29, 1992. At approximately 5:30 a.m. on July 29, 1992, Respondent telephoned his son, Patrick Alzugaray, who was asleep at the residence they shared. Following this telephone call from his father, Patrick immediately got dressed, went to the kitchen of the residence, removed from the freezer section of the refrigerator the artificial penis, went outside the residence, and threw the artificial penis down a chute into a dumpster. This was the only object thrown away by Patrick. He then returned to the residence he shared with his father and went back to sleep. Shortly thereafter, police officers from the City of Miami Beach Police Department arrived at the residence. Patrick was taken to the police station and interviewed. During this interview, he said that his father had told him "you have to find that damn thing (the artificial penis) in the freezer and throw it away because its embarrassing if they come and find that in there." After being questioned, Patrick showed them where he had disposed of the artificial penis. The artificial penis was retrieved at 6:50 a.m. on July 29, 1992. Patrick initially said that he had disposed of the artificial penis at approximately 6:00 p.m. on July 28, 1992. When he was confronted with the fact that there was still ice inside the artificial penis, he admitted that he had just disposed of it. Patrick was returned to the police department where he was interviewed on tape. During this interview, Patrick said that he threw the artificial penis away because his father had told him to do so. The artificial penis matched the description given by the complaining witness and was a material piece of evidence in the investigation. At the formal hearing, Patrick recanted his story and claimed that he was intimidated by the investigating police officers into saying that his father had told him to dispose of the artificial penis. At the formal hearing, Patrick testified that his father only told him that he was being investigated and asked if he knew anything about an artificial penis. Patrick testified that he threw the artificial penis away without being asked to do so by his father. The evidence is clear and convincing that Respondent was interviewed as a suspect in a sexual assault case, that because of that interview he knew that the artificial penis was a material piece of evidence, and that he telephoned Patrick shortly after the interview. The evidence is also clear and convincing that because of that telephone conversation with his father, Patrick attempted to dispose of this material piece of evidence. Patrick's statements to the police officers at the time of this incident are more consistent with the other facts in this proceeding and are more credible than his testimony at the formal hearing. Consequently, it is found that Patrick attempted to dispose of the artificial penis because his father told him to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein and revokes Respondent's certification as a law enforcement officer. DONE AND ENTERED this 6th day of May 1996 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 6th day of May 1996. COPIES FURNISHED: Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Peter Alzugaray 3075 Northwest 28th Street Miami, Florida 33142 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner is entitled to a educator's certificate to teach in the State of Florida.
Findings Of Fact Petitioner, Leonardo Jose Rodriguez, is an applicant for a teacher's certificate. On December 14, 1994, Petitioner was arrested and charged with exposure of sexual organs in violation of Section 800.03, Florida Statutes. Such statute provides: It is unlawful to expose or exhibit one's sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A mother's breastfeeding of her baby does not under any circumstance violate this section. On the date specified, Petitioner was parked in a public lot adjacent to an adult book store. Although seated in the driver's side of his vehicle with the windows up, Petitioner and his conduct were in plain view to the public. Two Miami-Dade police officers on routine patrol observed Petitioner's parked vehicle. They noted that Petitioner had his pants down, displayed his erect penis, and appeared to be masturbating. After observing Petitioner for several minutes, they approached the vehicle, interrupted Petitioner's conduct, and placed him under arrest for exposure of sexual organs. Thereafter, Petitioner agreed to a pretrial diversion program wherein he attended classes and paid monies attendant to the program. When Petitioner successfully completed the program, the criminal case against him was nolle prossed. Although he admitted the criminal charges had been filed against him, and the subsequent course of resolution, Petitioner maintains he did not commit the underlying conduct giving rise to such charges. Moreover, Petitioner claims the two police officers fabricated the entire criminal charge. Here, Petitioner's testimony has been rejected as unpersuasive. Petitioner filed for a Florida educator's certificate in July 1995. On March 26, 1998, Petitioner was advised that his application had been denied. The Notice of Reasons for the denial cited the conduct set forth above and concluded Petitioner is not of good moral character. No witnesses testified on behalf of Petitioner regarding his moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying Petitioner's application for certification. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999. COPIES FURNISHED: Kathleen Richards, Executive Director Education Practices Commission Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Jerry W. Whitmore, Program Director Education Practices Commission Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Jana Gold Taylor, Esquire Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Leonardo J. Rodriguez 51 Southwest 59th Court Miami, Florida 33144
The Issue The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995),1 and Florida Administrative Code Rules 11B-27.0011(4)(b) and (c),2 by failing to maintain the qualifications established in Section 943.13(7) for good moral character; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for certifying and regulating law enforcement officers in the state. Respondent is certified as a law enforcement officer pursuant to certificate number 139869 and is employed as a correctional officer by the Jacksonville Sheriff's Department (the "Department"). On January 23, 1994, Deputy J. W. Strickland observed Respondent in a parked vehicle in a vacant lot in an area of town known to the deputy as an area of drugs and prostitution. A white female was in the passenger seat of the vehicle. Deputy Strickland approached the vehicle and asked Respondent what he was doing in the area. Respondent identified himself as a correctional officer. Deputy Strickland recognized the female as Ms. Sherry Reinstzell. Ms. Reinstzell has a criminal history of prostitution. Deputy Strickland completed a field investigation report. Respondent and Ms. Reinstzell drove away. Deputy Strickland filed the field investigation report with the appropriate Department office. Sgt. Donald Retzer, Internal Affairs, received a copy of the field investigation report. He opened an internal affairs investigation concerning Respondent's conduct. Sgt. Retzer obtained a sworn statement from Respondent on January 28, 1994. Respondent stated under oath that he was just giving Ms. Reinstzell a ride to see a friend and did not know she was a prostitute. He denied any sexual activity with Ms. Reinstzell. Later in the same interview on January 28, 1994, Sgt. Retzer confronted Respondent with additional evidence previously gathered by Sgt. Retzer, including a sworn statement by Ms. Reinstzell. Respondent admitted that he picked Ms. Reinstzell up on Lane Avenue and negotiated a monetary arrangement for sex. Respondent then drove to an abandoned warehouse where Ms. Reinstzell performed fellatio on Respondent. Respondent paid Ms. Reinstzell $20 for the oral sex. He then drove her to a house where she used the $20 as part of the purchase price for illegal drugs with Respondent's knowledge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 943.1395(6), guilty of violating Section 943.1395(7) and Rule 11B-27.0011(4), and suspending Respondent's certificate for two years, including the period, if any, that Respondent has been unemployed by the Department prior to the date of this Recommended Order. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character as alleged in the Amended Administrative Complaint.
Findings Of Fact Respondent was certified by the Petitioner on April 2, 1982, and was issued Law Enforcement and Instructor Certificate Number 124699. Respondent was employed by the Miami Dade Police Department from April 2, 1982, until his employment was terminated as a result of the incident at issue in this proceeding. Respondent had a good record while working for the Miami Dade Police Department. He earned several commendations and received performance evaluations of satisfactory or above. Respondent is the biological father of Shannon Delano, a female born March 10, 1973. Shannon's parents divorced when she was four, and her mother was awarded primary custody of Shannon and of Shannon's twin sister. In 1981, Respondent moved to Florida. As a consequence of the divorce and of Respondent's move to Florida, Shannon seldom saw her father while she was growing up. Shannon maintained periodic telephone contact with him over the years and visited him in Florida in 1992, while she was on Spring break. They had a pleasant visit on that occasion. After he moved to Florida, Respondent married for the second time to a woman named Patrice. Respondent and Patrice had a son named Sean. Shannon joined the United States Air Force on October 15, 1992. Her permanent assignment was as a member of the military police at Langley Air Force Base in Virginia. In 1993, she was temporarily assigned to duty in the United Arab Emirates (UAE) as a support person for Desert Storm. While in the UAE, Shannon talked to Respondent occasionally by telephone. While she was in the UAE, Shannon and Respondent agreed that she would visit Respondent and Sean when she returned to the United States from the UAE. Respondent and Patrice had divorced by that time and Respondent was living alone in a two-bedroom apartment in Broward County, Florida. Their visit began on January 8, 1994. Respondent paid for Shannon's roundtrip airline ticket from Virginia to Florida. The visit was uneventful until the evening of January 12, 1994. Respondent worked his usual hours on January 12, 1994, and thereafter returned to the two-bedroom apartment at approximately 6:00 p.m. Respondent and Shannon had made plans to go out to eat dinner and then go to a comedy club that night. Respondent and Shannon were alone in the apartment. Respondent and Shannon engaged in a conversation in the living room area of the apartment. Because Shannon thought Respondent was despondent about his child custody fight over his son and his relationship with Shannon's twin sister, she hugged him and began to rub his back. There is a conflict in the evidence as to what happened next. The record establishes clearly and convincingly that Respondent thereafter preformed oral sex on Shannon, that he placed his mouth and tongue in her vaginal area, that he penetrated her vagina with his finger, and that he penetrated her anus with his finger. The conflict is whether Shannon was a willing participant in this sexual encounter. According to her testimony, Respondent forced her to the floor using a police take-down technique; he forcibly removed her clothing, and he held her down with his body and with one arm while he performed the sexual acts on her. She testified that she asked him to stop, but that she was too stunned to physically fight him. Respondent testified that Shannon was a willing participant and that the sexual encounter was consensual. Shannon and her father went to the comedy club that night, she subsequently rode with him on patrol where she met several of his colleagues, and she stayed with him at his apartment until her scheduled return flight to Virginia. Shannon returned to active duty in Langley, Virginia, as scheduled without reporting the incident. Approximately two weeks after the incident, she reported the incident to her superiors. She thereafter contacted the Broward County Sheriff's office, who assigned Detective Deborah Cox to conduct an investigation. As part of her investigation, Detective Cox had Shannon engage in a telephone conversation with Respondent that Detective Cox monitored and taped. Detective Cox also had Patrice engage in a telephone conversation with Respondent that Detective Cox monitored and taped. In his telephone conversation with Patrice, Respondent categorically denied that he touched Shannon and lamented that he was being falsely accused. Although there are statements made by Respondent contained in his telephone conversation with Shannon that substantiate his position that the sexual encounter was consensual,2 the following excerpts establish that Respondent did what he thought Shannon wanted him to do, not what she consented for him to do: Shannon: I guess I just need to understand why you felt the need to touch me that way. Respondent: I find, to be perfectly honest, I thought you had the need for it, believe me it's nothing I wanted, it's nothing I ever thought about, it's not something I consider to be normal thing between a father and a daughter. Shannon: I mean if I had the need to have that touch, why did it have to come from you, I mean - Respondent: It's something I thought you asked for, or it's something you wanted, believe me it's not something I want to do, it's not something I thought about, something that I looked forward to or thought about afterwards as being something good. Do you think you've had sleepless night over it, I had from that day forward. It's bothered me, it's upset me, it's bothered me a lot since then. I never would have believed that I could have done that , all I've ever tried to be is what you needed at the time. Obviously what you needed or what I thought you needed wasn't what you think you need now. Whether it was or it wasn't then, I really can't tell you. I, from what you said, from what you did, from the way you acted, felt, truly believed that's what you wanted and what you felt you needed. . . . The conflict in the testimony is resolved by finding that while she did not physically resist the sexual encounter, she did not implicitly or explicitly consent to the sexual encounter. Detective Cox turned over the results of her investigation to the State Attorney's office, who prosecuted Respondent on felony charges of sexual battery and on misdemeanor charges of committing Unnatural or Lascivious Acts. Based on the sexual encounter of January 12, 1994, Respondent was convicted of five misdemeanor counts of committing Unnatural or Lascivious Acts. He was acquitted of the felony sexual battery charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of failing to maintain good moral character; and revokes his certification as a Law Enforcement Officer and Instructor (Certificate Number 124699). DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999
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 testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent was certified by the Commission on March 1, 1983, and was issued certificate number 06-83-502-01. Prior to January, 1990, the Respondent was employed as a correction officer at Tomoka Correctional Institution (TCI). During the course of his training and experience as a correction officer Respondent has become familiar with cannabis and is able to recognize the controlled substance both by sight and smell. Respondent has confiscated cannabis from inmates at TCI at least one hundred times. On January 17, 1990, Respondent went to the Cool Breeze Bar in Seminole County, Florida. On that date, the bar was under surveillance by the narcotics and vice unit as it was thought to be a known gathering place for individuals selling illegal narcotics. As part of his surveillance of the bar, Deputy Shea observed a man later known to be the Respondent passed out in an automobile. The automobile belonged to Respondent and he was its only occupant. When Deputy Shea approached the vehicle he observed what appeared to be a marijuana pipe on the dash of the car at approximately arm's length from the Respondent. On further search Deputy Shea retrieved an envelope containing a substance which he later field tested. That substance field tested positive for cannabis. Deputy Shea's investigation was initiated after he opened the car door and smelled an aroma which he identified with burnt cannabis. After the Respondent was aroused from his sleep, Deputy Shea patted him down and placed him under arrest. The Respondent was disoriented and remained so during the time Deputy Shea searched the vehicle. Respondent had been drinking heavily. Deputy Shea marked the seized items for identification and later sent them to the sheriff's laboratory for additional testing. That testing was performed by Ms. Alt. Ms. Alt weighed and tested the items seized from Respondent's vehicle and determined that the plant material was cannabis and weighed less than 20 grams. Respondent knew on the evening of January 17, 1990, that cannabis had been smoked in his car but claimed he was unaware of the illegal items which others had allegedly left behind. Respondent claimed his cousins had smoked the marijuana in his car while he was in the bar and that he had gone to the vehicle later to sleep off his intoxication. On March 19, 1990, the Respondent entered a plea of nolo contendere to the charge of possession of less than 20 grams of cannabis and was adjudicated guilty.
Recommendation Based on the foregoing, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. RECOMMENDED this 12th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3589 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: 1. Paragraphs 1 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Edward Chavers 113 Scott Drive Sanford, Florida 32771 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto, respondent, Thomas F. Gorman, Jr., was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-33145 on March 22, 1983. When the events herein occurred, Gorman was employed as a police officer for the City of Vero Beach. On an undisclosed date in 1985, but prior to May 28, 1985, the husband of Kristie Coleman made a complaint with the Vero Beach Police Department (VBPD) that his eighteen year old wife had been sexually harassed by a black police officer. After being told the City had no black police officers, the husband then apparently identified respondent, who is white, as being the culprit. An investigation of the husband's complaint was conducted by the VBPD, but it was unable to "verify" the charges. The VBPD then decided to initiate a separate investigation of respondent. To do so, it solicited the aid and assistance of Kristie Coleman, who, at the insistence of the chief of police, agreed to wear a concealed microphone on her person. The purpose of the microphone was allegedly to investigate and intercept evidence of a criminal act on the part of Gorman. Kristie was instructed to stand outside her apartment whenever she saw respondent drive by in his police car so as to make herself visible to respondent. The police chief was explicit in his instructions that their encounter take place while Gorman was on duty. At the same time, two surveillance teams were placed on or near Kristie's premises, one in her bedroom and the other outside her apartment, and they activated recording equipment designed to monitor and record conversations between the two. She was also instructed to tell Gorman that she had to use the bathroom if he entered her apartment and placed a hand on her leg. This was a predetermined signal to the surveillance team to enter the room and make their presence known to Gorman. There was no court order approving the use of the concealed microphone. At approximately 6:38 p.m. on May 28, 1985, respondent drove by Kristie's apartment. It is stipulated that respondent was in uniform and on duty at that time. Upon seeing Kristie emerge from her apartment, Gorman stopped and the two began a conversation. During the course of the evening Gorman left the premises and returned six separate times after the first visit at 6:38 p.m. These return visits occurred at 7:08 p.m., 7:34 p.m., 8:22 p.m., 8:59 p.m., 9:04 p.m. and 9:20 p.m. However, it was not until the seventh visit that Gorman actually entered Kristie's apartment. On each visit, their conversations were recorded by the hidden microphone worn by Kristie. The transcript of the conversation was not transcribed by the parties, and portion of the recorded conversation are inaudible due to external noises such as traffic and the engine noise of respondent's vehicle. As a result of the VBPD surveillance activities, respondent was offered a choice of being terminated from the police force or voluntarily resigning. Gorman chose the latter. The administrative complaint herein was then filed by petitioner thereby prompting the formal hearing in this matter. It charges that Gorman "did agree with Kristina Coleman to engage in sexual intercourse with her in Kristina's apartment while the Respondent was on duty as a Vero Beach police officer." The tape reveals that Gorman and Coleman had known each other, at least by sight, prior to May 28, 1985. The two had also recently met when Gorman, while on duty, stopped Coleman one evening for a suspected moving violation. However, she was not ticketed by Gorman, and at that time Coleman told Gorman she wanted to see him again. Throughout the tape recorded meetings on May 28, Coleman repeatedly attempted to get Gorman to acknowledge that he had not given her a ticket in return for sexual favors. Gorman denied this was true each time the subject was raised, and there is no evidence to indicate that was the case. As noted earlier, the tape recording is not of the highest quality, and several parts of the conversation are either inaudible or partially obscured by other noises. Nonetheless, the following relevant facts are found from the more than one hour of recorded conversations, most of which were nothing more than casual conversation between the two. After several return visits to her apartment that evening, Gorman made several Flattering comments to Kristie, such as how "beautiful" she was, that she had a nice personality, and how Gorman was attracted to her. Gorman asked if he could see her after he was off-duty, but Kristie declined. As the evening went on, Kristie told Gorman that her sister would arrive at her apartment at 11:00 p.m. to spend the night, and that the few hours before 11.00 p.m. would be the "only time" she had to meet with him. Although Gorman was reluctant to go to her apartment while on duty, Kristie told him that once she got "started," she wanted Gorman to finish the job. She also asked him if he was "too chicken-shit to come into (her) house." On his last visit to her apartment that evening, Gorman accepted her offer to come into the apartment. After taking off his gun and holster at Kristie's request, and declining an offer of a beer from Kristie, Gorman then said what appears to the undersigned to be "Let's do it." Kristie then gave the predetermined signal to the surveillance team to enter the room. No sexual intercourse occurred and there is no evidence that respondent was charged with a violating any state or municipal law by the foregoing conduct. There was no specific reference to sexual intercourse in the conversations, although it can be reasonably inferred that Kristie was suggesting this to Gorman, and that he intended to accept her offer. There was no evidence that Gorman's conduct constituted what the agency perceived to be a lack of good moral character within the meaning of its rules or governing statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against Thomas F. Gorman, Jr. be DISMISSED, with prejudice. DONE and ORDERED this 3rd day of April, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of April, 1986. COPIES FURNISHED: Joseph S. White, Esquire P. O. Box 1489 Tallahassee, Florida 32302 Wayne R. McDonough, Esquire P. O. Box 1690 Fort Pierce, Florida 32960 Mr. Robert R. Dempsey, Executive Director Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION Petitioner, vs. DOAH Case No.: 85-3590 CJSTC Case No.: L-33145 THOMAS F. GORMAN, JR., Certificate Number: 02-33145 Respondent. /
