The Issue Whether Petitioner's application for licensure as a Community Association Manager by Examination should be granted.
Findings Of Fact When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than $500, or by both. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding. The application submitted by Petitioner contained the following question regarding the applicant's criminal history: Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ). This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes. Petitioner explained that he thought the withholding of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or misdemeanors and then adding "violation of the laws" as an afterthought. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 6th day of January, 1998. COPIES FURNISHED: Edward D. Broyles, Executive Director Department of Business and Professional Regulation Division of Professions Regulatory Council of Community Association Managers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Michael Kennedy, Esquire Kennedy & Pyle 687 Beeville Road, Suite A South Daytona, Florida 32119 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance, but not with those of petitioner. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Esteban Tabaoado (Tabaoado), has been employed by the County as a correctional officer periodically since September 11, 1984, without benefit of certification. On or about September 9, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Tabaoado. 3/ Accompanying the application (registration) was an affidavit of compliance, dated September 9, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Tabaoado had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Tabaoado and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine. Following receipt of the Commission's letter of denial, Tabaoado filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Tabaoado denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Under the provisions of rule 11B-27.0011(2), the use of a controlled substance does not conclusively establish that an applicant lacks the good moral character necessary for certification unless such use was "proximate" to his application. The Commission has not defined the term "proximate," and offered no proof at hearing as to what it considers "proximate" usage within the meaning of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state have been left with no definitive guideline from the Commission, and have adopted various standards. Pertinent to this case, Dade County has adopted a term of one year as the standard by which it gauges the "proximate" use of a controlled substance to an application for employment. Under such policy, an applicant who has refrained from such use for at least one year preceding application will not be automatically rejected as lacking good moral character. Rather, the applicant's entire background will be evaluated to determine whether he currently possesses the requisite moral character for employment. 4/ Pertinent to this case, the County undertook a pre-employment interview of Tabaoado on January 31, 1984, at which time he admitted to having used cocaine approximately eight times, the last time being in 1980, and to having used marijuana a few times, the last time being in June of 1983. Thereafter, on September 11, 1984, Tabaoado was employed by the County as a correctional officer, and served satisfactorily until 1986. On December 14, 1986, evidence that Tabaoado had a substance abuse problem surfaced. On that date, Tabaoado telephoned his former supervisor, Lieutenant Lois Spears, a confidante, and advised her that he had been using drugs and did not think he could work that night. Lt. Spears advised Tabaoado not to report for work that evening, but to report the next morning to the administrative offices. The following day, Tabaoado met with Lt. Spears and Ervie Wright, the director of the Department's program services, which include employee counseling. At that time, Tabaoado conceded that he had been abusing cocaine, and Mr. Wright recommended that he seek assistance for his problem. On January 5, 1987, the County terminated Tabaoado's employment as a correctional officer for failure to maintain a drug-free life-style. On October 19, 1987, following Tabaoado's attendance at a drug rehabilitation program, the County re-employed him as a correctional officer. To date, Tabaoado has been so employed for approximately one and one-half years without incident, and his performance has been above satisfactory. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Recently, on January 20, 1989, Tabaoado married Olfuine Tabaoado, who has been a correctional officer with the County for almost three years. According to Ms. Tabaoado, she has never known him to use drugs during the one- year period that she has known him, and Tabaoado has proven to be a good father to her son from a previous marriage. While Tabaoado may have abstained from the use of drugs since his re- employment with the County, or even since January of 1987, the proof is not compelling in this regard. Rather, the proof demonstrates that Tabaoado's use of drugs, at least of cocaine, was frequent and protracted. Here, Tabaoado, born September 2, 1960, to the extent that he would admit it, used cocaine 8 times until 1980 and marijuana a "few times" until 1983. Thereafter, following his initial employment by the County as a correctional officer, he used cocaine to such an extent that by December 14, 1986, he was unable to perform his job and was in need of professional help to address his drug abuse. Such frequent and protracted use on his part does not evidence the requisite good moral character necessary for certification as a correctional officer. Here, Tabaoado chose not to testify at hearing, and there is no competent or persuasive proof to demonstrate that he successfully completed the drug rehabilitation program; when, if ever, he ceased using cocaine; whether he now has an appreciation of the impropriety of his conduct; or whether he can reasonably be expected to avoid such conduct in the future. Notably, on October 5, 1987, prior to his re-employment, Tabaoado underwent another pre-employment interview. At that time, Tabaoado told the interviewer, who had also conducted his first interview, that he had not used any drugs since his last interview on January 31, 1984. Such response was patently false, since he had abused cocaine at least as recently as December 1986. Considering the totality of the circumstances, it is concluded that Tabaoado has failed to demonstrate that he currently possesses the requisite good moral character for certification as a correctional officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Esteban Tabaoado, for certification as a correctional officer be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commissions 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, Marie Elie Davis (Davis), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Davis. 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 Davis 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 Davis 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. You have unlawfully and knowingly committed petty theft. Following receipt of the Commission's letter of denial, Davis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Davis 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 Davis on April 25, 1986, at which time she admitted that she had used marijuana and cocaine, and that she had been arrested in 1979 for shoplifting. Regarding her use of controlled substances, the proof demonstrates that Davis tried marijuana one or two times prior to 1980 and that she tried cocaine one time prior to 1980. Other than these isolated incidents she has not otherwise used controlled substances. Regarding her arrest, the proof demonstrates that in December 1979 Davis was arrested for shoplifting costume jewelry. She pled guilty to the offense of petit theft, and was fined $40. Notwithstanding the County's conclusion, based on its investigation and analysis of Davis' background, that Davis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana and cocaine almost 9 years ago, and her conviction in 1979 of petit theft. The Commission's action is not warranted by the proof. Here, Davis, born September 12, 1958, used marijuana two times and cocaine one time, the last time being almost 9 years ago when she was approximately 21 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. Nor, is her arrest and conviction for petit theft almost 9 years ago current or persuasive evidence of bad moral character. 4/ Currently, Davis has been employed by the County as a corrections officer, a position of trust and confidence, for almost two and one-half years. 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. Overall, Davis 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, Marie Elie Davis, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th 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 Whether Petitioner's application for licensure as a community association manager by examination should be granted.
Findings Of Fact Petitioner, Fred Storch (Storch), filed an application with Respondent, Department of Business and Professional Regulation, Community Association Managers (Department) on April 14, 1998, for licensure as a community association manager by examination. The application contained the following question: Have you now or have you ever been licensed or certified in any profession such as real estate, insurance, securities, etc., in Florida or in any other state, province, district, territory, possession or nation? If the applicant answered "yes" to the question, the application required the applicant to list the name of the profession, the license number, the date the license was first obtained, and the current status of the license. Storch answered "yes" to the question and indicated that he currently had a real estate salesperson's license in Florida and a real estate broker's license in New York. At the final hearing, Storch testified that he had a current mortgage broker's license and a real estate salesperson's license from New York and that he was currently licensed in Florida as a real estate salesperson and had been licensed in Florida as a mortgage broker. The application contained the following question: Has any license, certification, registration, or permit to practice any regulated profession been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? This includes any disciplinary action taken against you such as a reprimand, probation, etc. Storch answered "no" to the question. The following question was also on the application: Have you ever relinquished or withdrawn from any license, certification, registration or permit to practice any regulated profession in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? Storch answered "yes" to the question and provided the following explanation. I relinquished my license as a Mortgage Broker because I was unable to submit to an audit on a timely basis due to my son's poor health. My son is afflicted with epilepsy, which cannot be controlled with medication. He is having surgery on April 21, 1998 at George Washington University Hospital, Washington, D.C., to eliminate the cause of his seizures. I have enclosed the documentation from the Comptroller's Office and my son's doctor. In 1994, Storch and the Florida Department of Banking and Finance (DBF) entered into a Stipulation and Consent Order which was incorporated in a Final Order, dated January 13, 1995. Storch and DBF agreed that Storch's mortgage broker's license was suspended until a location and occupational license was obtained. Storch agreed to pay an administrative fine of $500 and agreed to cease and desist all violations of Chapter 494, Florida Statutes. On February 12, 1997, DBF entered a Default Final Order and Notice of Rights, finding that Storch had acted as a mortgage broker without a current active license and that Storch had failed to provide his books and records for inspection as requested by DBF. Storch was ordered to cease and desist from violating Chapter 494, Florida Statutes, and all registrations and licenses previously issued to Storch, which included his mortgage broker's license, were revoked. By letter dated February 13, 1997, Storch advised DBF that he would be willing to turn in his license if DBF would not pursue any action against him then or in the future. On September 18, 1997, the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Storch alleging that Storch had violated Section 475.25(1)(s), Florida Statutes, because his residential mortgage broker's license had been revoked. On December 17, 1997, the Department of Business and Professional Regulation, Division of Real Estate, entered a Final Order, disciplining Storch's real estate salesperson's license. The Final Order stated that Storch was guilty of violating Section 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint and required Storch to pay an administrative fine of $100.00 and investigative costs of $313.60.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Fred Storch's application for licensure as a community association manager. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of March, 1999. COPIES FURNISHED: Edward Broyles, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Thomas G. Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Fred Storch 7782 Edinburough Lane Delray Beach, Florida 33446
Findings Of Fact The Respondent, Willie A. Owens, was certified by the Criminal Justice Standards and Training Commission on April 27, 1984, and was issued Certificate Number 02-84-002-01. In February, 1985, the Respondent was employed in a training position as a Highway Patrol Officer and had been in that position for about twelve months in February, 1985. T. 64. On the evening of February 10, 1985, the Hillsborough County Sheriff's Officer initiated an investigation into a complaint of involuntary sexual battery alleged to have been committed by the Respondent on February 9, 1985. T. 9-10, 24, 13. (The Respondent has not been charged with this offense in this case.) Pursuant to that investigation, between the hours of 12:30 and 1:30 A.M. on February 11, 1985, Detective David Gee, Hillsborough County Sheriff's Office, accompanied by Lieutenant P. E. Dixon, Florida Highway Patrol, Lieutenant Maxwell, and others, drove to the residence of the Respondent. T. 10, 25. The Respondent came to the door fully dressed and was reasonably alert. T. 18-19. The Respondent was asked if the group could come inside his residence, and he invited them in. T. 25. After the group was inside, Detective Gee stated that the Respondent was a suspect in a sexual battery case. T. 25, 65, 11. Detective Gee then advised the Respondent of his rights pursuant to the Miranda requirements. T. 25, 11-12. The Respondent signed a waiver of rights form and consented to be questioned at that time, and did not ask to have a lawyer present. T. 11-12. During the interview inside, the Respondent and Detective Gee were sitting on a couch. T. 15. The Respondent said that he had had a female companion (the alleged victim) in his home on the night of February 9, 1985, (he was not on-duty) and that she had produced some marijuana that she had brought with her to the Respondent's home. T. 14-15. The Respondent said that he and she smoked two marijuana cigarettes, characterized in this record by one law enforcement witness as a small amount of marijuana. T. 14-15, 29. Detective Gee then looked into an ashtray that was directly in front of him on a coffee table in front of the couch and saw the end of one used marijuana cigarette. T. 15. He asked the Respondent if that were part of the marijuana and the Respondent said yes, it was. T. 15. The used bit of marijuana was very small, the cigarette having been burned all the way to the end of the paper. T. 16-17. There was only one used marijuana cigarette in the ashtray. T. 15. (There is a conflict of testimony as to whether there were one or two remains of marijuana cigarettes in the ashtray. Detective Gee is credited with the more reliable memory of what was in the ashtray since he was the one who took the substance into custody.) Detective Gee then seized the bit of marijuana, which was in his plain view. T. 17. He did not have a search warrant. T. 33. The bit of substance seized by Detective Gee was cannabis or marijuana. T. 15, 16-17, 26-29. Detective Gee had permission to search the residence of the Respondent, but there is no evidence that the Respondent had any other marijuana or any other controlled substance in his possession. T. 34-35, 36-37, 66-67. Detective Gee did not have the substance analyzed to determine chemically if it was cannabis because he did not intend to charge the Respondent with a crime. T. 22. The authorities did not charge the Respondent with any crime connected with the substance found in the ashtray. T. 19-20. The Respondent had possession of the bit of marijuana seized by Detective Gee because he knew what it was and it was under his control and possession in his home, and his female companion was no longer there. Additionally, the Respondent possessed and consumed some small portion of marijuana provided to him by his female companion on February 9, 1985. The record does not contain precise evidence as to the amount, but it may be inferred from the visual evidence and testimony that the amount was substantially less than 20 grams. A law enforcement officer has a duty to enforce laws forbidding the possession and use of controlled substances. T. 30. A Highway Patrol Officer normally is assigned alone in a car, without direct supervision. T. 30-31. Such an officer may, on occasion, have a duty to seize controlled substances and destroy the same if a charge of illegal possession or use is not to be filed. T. 32. Saving the controlled substance for personal use would be a violation of that duty. Id. In such event, it is likely that there would be little complaint from the motorist from whom the controlled substance was seized. There have been no complaints concerning the work performed by the Respondent while employed by the Highway Patrol. T. 33. He is considered to be honest and trustworthy by reputation. T. 59-60.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order finding that the charge of a lack of good moral character has not been proven, that the law enforcement certificate issued to the Respondent, Willie A. Owens, not be revoked, and that the administrative complaint be dismissed. DONE and RECOMMENDED this 27th day of April, 1987 in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. HEARING OFFICER Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4141 The following are rulings upon proposed findings of fact; by number, which have been rejected in this recommended order. Findings of fact proposed by the Petitioner: 4-5. It appears that the Respondent was advised of the purpose of the visit after the group had entered, but the fact is not important to the result in the case. 8-9. It is true that both Detective Gee and Lieutenant Dixson have had significant experience in the identification of cannabis, but the proposed finding is subordinate. 9. The testimony of Detective Gee, that the remains of only one cigarette was in the ashtray, is adopted in this recommended order. 11. Rejected as not credible. Findings of fact proposed by the Respondent: Two cigarettes were involved initially. While possession originated with the Respondent's companion, the Respondent then also possessed the cannabis. Rejected as not credible and contrary to the evidence. 8-9. The testimony of the Respondent (admission), Lieutenant Dixson, and Detective Gee was sufficient to establish the character of the substance as cannabis. 10. The evidence cited to support this proposed finding concerning an act of bravery has been ruled inadmissible. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Marvin P. Jackson, Esquire 400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603 =================================================================
The Issue The issue for determination is whether Petitioner's application for licensure as a community association manager by examination should be approved.
Findings Of Fact By application dated January 3, 1998, Jerry George Sardone, Jr. (Petitioner), made application for licensure as a community association manager by examination. Petitioner's application was received by the Department of Business and Professional Regulation, Community Association Managers (Respondent), on or about January 15, 1998. A section entitled "ESSENTIAL INFORMATION FOR APPLICANTS" was located on the first page of the application. The section provided, among other things, the following: Pursuant to Rule 61B-55.004(5)(a)5.[sic], Florida Administrative Code, failing to provide full and complete disclosure or failing to provide accurate information on this application for licensure or in materials subsequently provided to the Division [Division of Professions] will result in the denial of this application. Question numbered 17 of the application inquired, among other things, about Petitioner's criminal background. Question numbered 17 stated in pertinent part: C) Criminal * * * 2. Have you ever been convicted or been found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ) This question applies to any violation of the laws of any state, territory or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. Petitioner checked "no" to the above inquiry. If an applicant checked "yes" to the above inquiry, the applicant was required to respond to additional inquiries regarding the applicant's criminal background. One of the additional inquiries involved the outcome of the criminal situation, and one of the possible outcomes listed was "Charges Dismissed (Nol Pros entered)." By letter dated March 5, 1998, Respondent notified Petitioner that, among other things, his application was deficient. The deficiency indicated was that the criminal history received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation indicated that Petitioner had a criminal history that he had not revealed on his application. The letter indicated the specific criminal history as follows: Specifically, you [Petitioner] were arrested on April 21, 1980 by the Sheriff's Office, West Palm Beach, Florida and charged with Failure to Appear for Arraignment/Resisting Arrest with Violence. You were arrested on November 15, 1988 by the County Police, Mineola, New York, and charged with Driving While Intoxicated. You were arrested on December 30, 1988 by the County Police, Mineola, New York, and charged with Burglary Second Degree, and Criminal Possession of a Weapon. The disposition of these incidents are either unclear or not known. The letter requested, among other things, certain information regarding the arrests, including disposition, within 60 days. By letter dated April 7, 1998, Petitioner responded to Respondent's letter dated March 5, 1998. Petitioner provided certified copies of the courts' disposition records regarding the arrests in Respondent's letter dated March 5, 1998. Petitioner also indicated in his letter that he had mistakenly recalled that the charges were dismissed and, therefore, had not included them on his application. By letter dated May 6, 1998, Respondent notified Petitioner of its intent to deny his application for licensure based upon Petitioner's failure to establish that he possessed good moral character. Respondent indicated, among other things, the basis for its determination that Petitioner lacked good moral character, namely, Petitioner's failure to include any arrests on his application, his arrest record, and his response that he submitted to the arrest record. As to the arrest and charge on April 21, 1980, Petitioner pled guilty on June 23, 1980, to and was convicted of failure to appear for arraignment and a lesser charge of resisting arrest without violence. Adjudication was withheld and Petitioner was sentenced to six months probation. As to the arrest and charge on November 15, 1988, Petitioner pled guilty on January 5, 1989, to and was convicted of a lesser charge of operating a motor vehicle while impaired by alcohol. Petitioner was ordered to pay $250 or spend five days in jail, and his license was ordered revoked. As to the arrest and charge on December 30, 1988, Petitioner pled guilty on July 21, 1989, to and was convicted of a lesser charge of attempted petit larceny. The disposition was a conditional discharge.2 Respondent included another arrest in its letter dated May 6, 1998, which was not indicated in its letter dated March 5, 1998. The arrest occurred on December 9, 1984, when Petitioner was arrested by the Fort Lauderdale Police Department in Florida and charged with willful and wanton reckless driving. The disposition of that arrest was not established at hearing. It is undisputed that Petitioner failed to include any of the criminal history on his application for licensure. Even if Petitioner thought that the charges were dismissed, as he indicated in his response letter, the application provided Petitioner an opportunity to list the charges and to indicate that they were dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Community Association Managers, enter a final order denying the application of Jerry George Sardone, Jr., for licensure as a community association manager by examination. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of April, 1999.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 11, 1983 and issued Certificate Number 502-3844. The Respondent was a correctional officer with the Palm Beach County Sheriff's Office beginning in January 1983. On August 27, 1986, the Respondent resided with Ms. Burton (who has subsequently married Respondent and is now known as Elaine Burton Edwards) and two of her children. One of her children, Karl McInis ("Karl") was twenty three months old at the time and he was in the process of being toilet trained. On August 27, 1986, the Respondent discovered that Karl had "messed" on the floor and/or in his pants. The Respondent felt that the child's actions were deliberate and that the child needed to be disciplined. Therefore, Respondent struck the child fives times with a leather belt. There is a dispute as to the type and size of the belt used. While Petitioner contends that Respondent used his heavy Sheriff's Deputy belt, the greater weight of the evidence indicates that Respondent used a typical men's trousers belt. As a result of the discipline described in paragraph 5 above, Karl suffered bruises on his buttocks and legs. Subsequent to the incident, the child was removed from the home by HRS. He currently resides out of state with his grandparents. Criminal charges were brought against Respondent after HRS reported the incident to the police. However, after Respondent successfully completed a counseling program as part of a pre-trial intervention program, the charges were nolle prossed on November 10, 1988. As a result of his arrest, Respondent was suspended from his job at the Palm Beach County Sheriff's Department pending the outcome of the criminal case. Respondent has not been reinstated. After completing the counseling program, Respondent altered his methods of disciplining his children. On most occasions, Respondent has refrained from using corporal punishment and instead attempts to apply the assertive discipline procedures he learned in the counseling program. However, Respondent admits that on a few occasions when he felt the children did not respond to the assertive discipline techniques, he has resorted to corporal punishment. On March 2, 1989, Respondent disciplined one of his children, Julius Edwards, by striking him five times on the palms of the hands with a belt. At the time of the incident described in paragraph 10, Julius was five years old. Julius and at least one other sibling from Respondent's previous marriage were living with Respondent and Ms. Burton. Respondent punished Julius because he felt the child was deliberately engaging in a pattern of obstinate conduct in an attempt to be returned to the custody of his natural mother. That conduct included eating excessive amounts of food after being instructed not to. During the punishment, Julius struggled and at least one of the blows landed on his arms. As a result of the punishment, Julius had bruises on his arms which measured approximately four inches long and one inch wide. As a result of the corporal punishment administered by Respondent to Julius, Respondent was arrested and ultimately adjudicated guilty of a misdemeanor for violating Section 827.04, Florida Statutes (child abuse) on March 29, 1989 in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, in case no. 89-5869MMA08. As a result of this conviction, Respondent was required to undergo additional counseling. While the bruises suffered by the children in the two incidents described above are significant cause for concern, neither of the children required medical attention. At the time of both of the incidents in question, none of the other children evidenced bruises, they all appeared well-fed and there was no other evidence of any neglect. Indeed, the evidence reflects that the Respondent is a dedicated and caring father. He is extremely concerned about the many negative influences that affect children in our society. As a result, he believes it is important for him to discipline the children in an attempt to ensure that they choose the right path in life. Respondent contends that he was raised with a similar type of discipline and finds it difficult to understand the commotion caused by his attempts to discipline his children in the manner in which he was raised. While his motives are good, he has used very poor judgment in certain situations and imposed excessive punishment given the age of the children and the nature of their behavior. Respondent has aspired to be a law enforcement officer since his high school days. He has spent hundreds of hours as a volunteer for various school projects and programs involving children. He has strived hard to be a good role model and an active member of his community. However, he needs to temper his concerns and enthusiasm with more sensitivity to the rights of others. There is no indication of any deficiencies or problems in Respondent's job performance. Indeed, the only evidence introduced regarding his performance as a law enforcement officer indicated that he was dedicated, concerned and responsible.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order placing Respondent Glenn S. Edwards' correctional officer certification on probation for a period of two years and requiring him to complete an appropriate counseling program for parents while refraining from any further violations of Section 943.13(1)-(10). DONE AND ENTERED this 10th day of April 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April 1990.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. 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, Theresa Devergiles-Lamary (Lamary), has been employed by the County as a correctional officer since October 23, 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 Lamary.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 Lamary 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 Lamary 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 cannabis. Following receipt of the Commission's letter of denial, Lamary filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Lamary 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 Lamary on March 10, 1985, at which time she admitted that she had used marijuana. Regarding such use, the proof demonstrates that Lamary used marijuana no more than five times, and more probably three times, and that she last used marijuana in 1982 when she was in high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Lamary's background, that Lamary possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana. The Commission's action is not warranted by the proof. Here, Lamary, born July 8, l964, used marijuana no more than five times, the last time being over 7 years ago when she was 17 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, Lamary has been employed by the County as a corrections officer, a position of trust and confidence, for over four 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, honest, fair and respectful of the rights of others. Overall, Lamary 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, Theresa Devergiles-Lamary, 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 to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, 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 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
