The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida, Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Johnny Johnson (Johnson), has been employed by the County as a correctional officer for approximately three years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Johnson. Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Johnson had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. 3/ By letter dated November 1, 1988, the Commission notified Johnson and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Johnson filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Johnson denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a preemployment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Johnson on May 14, 1985, at which time he admitted that he had used marijuana on two occasions. At that time he estimated the date he last used marijuana to have been 1972; however, the proof demonstrates that he misapprehended the date of last usage, and that the proper date was December 1970. His last use consisted of "passing a joint" ,with some college friends when he was 23 years of age. Prior to that, he had used marijuana once while a solider in Vietnam. Notwithstanding the County's conclusion, based on its investigation and analysis of Johnson's background, that Johnson possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 18 years ago. The Commission's action is unwarranted. Here, Johnson used marijuana two times, the last time being over 18 years ago when he was 23 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Currently, Johnson has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, Johnson was employed as an administrative assistant by Dade County, Department of County and Economic Development, for two and one-half years. He has been certified as a substitute teacher in Dade County since 1982, and has been a member of the Air Force Reserve for three years, with several letters of commendation Overall, Johnson has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Johnny Johnson, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1989.
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, Jorge Cobas (Cobas), has been employed by the County as a correctional officer since April 6, 1987, 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 Cobas. 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 Cobas 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 Cobas and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Cobas filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Cobas 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 Cobas on May 1, 1986, at which time he admitted that he had used marijuana "one time years ago." Other than this isolated occasion, there is no proof that Cobas otherwise used any controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Cobas' background, that Cobas possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana. The Commission's action is not warranted by the proof. Here, Cobas, born December 29, 1956, admitted to having used marijuana one time, years ago. Such isolated 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, Cobas has been employed by the County as a corrections officer, a position of trust and confidence, for over two years. His annual evaluations have ranged from satisfactory to above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Cobas 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, Jorge Cobas, 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 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, Signe Anthony (Anthony), has been employed by the County as a correctional officer for approximately one and one-half 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 Anthony. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Anthony 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 Anthony 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, Anthony filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Anthony 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 Anthony on May 9, 1987, at which time she admitted that she had tried marijuana. Regarding such use, the proof demonstrates that on one occasion, at age 13 and while a student in junior high school, Anthony took three or four "drags" from a marijuana cigarette. Other than that one occasion Anthony has not used marijuana or any controlled substance. In reaching this conclusion, the Commission's contention that Anthony's application with the City of Miami for employment as a police officer was denied in 1985 because her pre- employment urinalysis ostensibly proved positive for the presence of marijuana has not been overlooked. However, the proof offered to demonstrate that her urinalysis proved positive for the presence of marijuana was not credible or reliable. Contrasted to such unpersuasive proof was the credible testimony of Anthony that she had used marijuana on but the one occasion during junior high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Anthony's background, that Anthony possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Anthony, currently 26 years of age, used marijuana on one occasion approximately 13 years ago when she was 13 years of age. Such an 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, Anthony has been employed by the County as a correctional officer, a position of trust and confidence, for approximately one and one-half years. Her annual evaluations have ranged from satisfactory to outstanding, 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, Anthony 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, Signe Anthony, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th 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 7th 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 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, Humberto Jimenez (Jimenez), has been employed by the County as a correctional officer for approximately two and one-half 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 Jimenez. 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 Jimenez 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 Jimenez and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Jimenez filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Jimenez denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.OO11 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 Jimenez on July 24, 1986, at which time he admitted that he had used cocaine and marijuana in the past. His use of cocaine occurred in 1983, when he was 19 years of age, and consisted of using the drug twice on the same day. His use of marijuana occurred in 1981 or 1982, while he was a high school student, and occurred on no more than four occasions. But for these isolated occasions, Jimenez has not used cocaine or marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Jimenez's background, that Jimenez possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of cocaine and marijuana. The Commission's proposed action is not warranted by the proof. Here, Jimenez, born January 1, 1964, used marijuana infrequently, the last time being about 7 years ago when he was 17 years of age and a high school student. His use of cocaine occurred on but one day in his life, and at the time he was 19 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Currently, Jimenez is married and the father of a fourteen-month-old daughter. He has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations demonstrated that his performance has been 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, Jimenez 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, Humberto Jimenez, 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 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 On February 6, 1992, Respondent received Petitioner's application for a Class "D" Security Officer License. In processing the application, Respondent conducted a criminal background check on Petitioner and received his criminal history as compiled by the Federal Bureau of Investigation (FBI). By letter dated July 24, 1992, Respondent informed Petitioner of its intent to deny his application for licensure based upon grounds cited in the letter. On August 17, 1992, Respondent received Petitioner's request for a formal hearing and his explanation for the various arrests cited in the denial letter. On August 14, 1992, Respondent mailed Petitioner an amended denial letter citing additional grounds for the denial of his application. Respondent asserts that it is within its discretion to deny Petitioner's application because his criminal history reflects a lack of good moral character. All other grounds for denial of licensure of Petitioner were abandoned by Respondent at the formal hearing. The following arrests are cited by Respondent as justifying its denial of licensure to Petitioner. CHARGE ONE On August 21, 1968, Petitioner was arrested on charges of aggravated assault and forgery in Dyersburg, Tennessee. In 1968, Petitioner was discharged from the Army after having served in Viet Nam. He accompanied a friend he had met in the Army to Dyersburg, Tennessee, where he became involved in an altercation with someone who tried to run him off the road while he was riding his motorcycle. The person who tried to run Petitioner off the road stopped and attempted, without success, to hit Petitioner with a tire iron. Petitioner took the tire iron away from this person and hit the person on the head with the tire iron. Petitioner was arrested for aggravated assault and placed in the county jail. At the same time, he and two companions were charged with forgery for purchasing beer with worthless bank checks. Petitioner was told that he would not be tried until after the grand jury convened, and that he would have to wait in the county jail in the interim, a period of four months. Petitioner escaped from the county jail with the help of two other inmates and made his way to Chicago, Illinois. He was subsequently arrested and returned to Tennessee after he waived extradition. Petitioner was thereafter tried and convicted of aggravated assault, forgery, and grand theft and sentenced to three years imprisonment. On January 30, 1970, Petitioner's grand larceny conviction was reduced to a misdemeanor charge of attempt to commit a felony. His three year sentence was commuted and he was granted parole and immediately released after having served eighteen months in jail. Petitioner received a pardon from the governor of Tennessee for the felony convictions resulting from the 1968 arrests. CHARGE TWO In 1973, Petitioner was arrested and convicted of drunk driving in California and placed on probation. On August 2, 1974, in Palm Springs, California, Petitioner was arrested and charged with suspicion of burglary, a violation of California Penal Code 459. His probation from the 1973 conviction was violated, and he was sentenced to sixty days in jail and given two years of probation. The charge of suspicion of burglary was reduced to trespassing. Petitioner was intoxicated and was trespassing when arrested in August 1974. Petitioner testified without contradiction that he was not attempting to steal anything. CHARGE THREE In September 1980 in Riverside, California, Petitioner was arrested and charged with possession of a device for arson. Petitioner had been threatened by a gang after he identified a gang member as having stabbed a member of another gang. When three carloads of gang members came to his place of residence to threaten him, Petitioner made a Molotov cocktail and threw it in the street to disperse the gang members and to get the attention of the police. This charge was subsequently dismissed. CHARGES FOUR AND FIVE On May 13, 1988, Petitioner was arrested in Chicago, Illinois, and charged with unlawful use of a weapon and aggravated assault. On July 26, 1988, he was charged with aggravated assault; unlawful use of a weapon/gun; unlawful use of a weapon/tear gas; unlawful use of a weapon/blackjack; and failure to register a firearm. These arrests resulted from Petitioner's attempts to reduce drugs and prostitution in his neighborhood as a pro-active vigilante. On May 13, he fired two warning shots from a .25 caliber pistol into the ground to discourage three would-be attackers. Though the assailants left, an eyewitness filed a complaint with the police which resulted in Petitioner's arrest. On July 26, 1988, Petitioner was arrested while again acting as a vigilante by the same officer who had arrested him on May 13. He had on his person at the time of his arrest an unregistered firearm, a blackjack, and mace. These charges were dismissed when the arresting officer failed to appear in court. CHARGE SIX Petitioner heard threats against himself and his family because of his efforts to cleanup his neighborhood. On February 3, 1989, Petitioner went to a bar which the people who had been threatening him frequented. He confronted these persons and fired four shots from a .357 firearm into the ceiling. Petitioner was charged with criminal damage to property, reckless conduct, and unlawful use of a weapon. The charge of criminal damage to property was dismissed, but he was found guilty on the other two charges. Petitioner was given a conditional discharge and ordered to pay $264.00. The conditional discharge was revoked in June 1990. CHARGE SEVEN On May 18, 1989, Petitioner was arrested in Chicago on a traffic violation and charged with resisting or eluding an officer. Petitioner was intoxicated and was driving around setting off firecrackers in the street when the police attempted to pull him over. Because he could not find a place to stop, he circled the block a few times before stopping the car. He was adjudicated guilty and had his driver's license revoked for three years. REHABILITATION Petitioner is an alcoholic, and his arrests can be attributable, in part, to the influence of alcohol. Petitioner has been an active participant in the Miami, Florida, Veterans Affairs (VA) Medical Center Substance Abuse Clinic since October 11, 1989, and has consistently abstained from alcohol since September 7, 1989. Since 1989, Petitioner has lived and worked in Florida. Petitioner has no criminal record since moving to Florida in 1989 and enrolling in the VA substance abuse program. Petitioner has worked for Kent Security since January of 1991, and his employer considers Petitioner to be an outstanding employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which grants Petitioner's application for licensure as a Class D Security Officer. DONE AND ORDERED this 3rd day of February, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Division of Licensing The Capitol MS 4 Tallahassee, Florida 32399-0250 Mr. James J. Killacky #206 1660 Northeast 150th Street North Miami, Florida 33181 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue in this cause is whether Respondent's certification as a law enforcement officer should be revoked, or otherwise disciplined, for failure to maintain qualifications.
Findings Of Fact Respondent was employed by the Dade County public schools and worked as a guard in the school system's administration building for several years. As a public school employee, he was subjected to random drug testing. None of those tests indicated the presence of drugs in Respondent's system. Over time, persons employed as police officers by the school system's Special Investigative Unit became impressed with Respondent's character and job performance and approached him regarding becoming certified as a police officer and working with the Special Investigative Unit of the Dade County public schools. Since Respondent had always wanted to be a police officer, he attended the police academy under the sponsorship of the Dade County school system. After graduation from the police academy, Respondent was certified by Petitioner on January 4, 1988, and was issued Certificate Number 03-87-002-04. Thereafter, he was employed as a police officer with the Dade County public schools' Special Investigative Unit. In mid-April, 1988, Respondent and his then-fiancee went down to the Florida Keys with, and at the invitation of, another couple to spend the weekend in a time-share condominium, from Friday through Sunday. After lunch on Saturday, Respondent and the other couple began drinking beer. They drank beer until the time that the four vacationers went to dinner. At dinner Respondent consumed several mixed drinks. After dinner they returned to the condominium where Respondent consumed more beer. By this time Respondent was drunk. He fell asleep on the couch while his fiancee and the other couple continued talking and listening to music. At some point Respondent began waking up. Respondent's male "friend" reached into his own wallet, took out what appeared to be a cigarette, lit it, and placed it in Respondent's hand. When Respondent, who smokes cigarettes, began smoking the item placed in his hand, he began choking. When Respondent's fiancee demanded to know what was occurring, the "friend" replied that he was only playing a joke on Respondent and took the "cigarette" back from the Respondent. Respondent lay back down on the couch and again fell asleep. Due to the amount of alcohol he had consumed on Saturday, Respondent remembers going back to the time-share condominium after dinner but has no recollection of anything that happened thereafter. On the following day, the vacationers returned to Miami. No one told Respondent about the joke his "friend" had played on him. On Monday Respondent was advised that his annual employment physical, including drug screening, would take place on Tuesday. Respondent made no attempt to avoid that physical examination, but rather appeared for his physical as scheduled. On Tuesday, April 19, 1988, Respondent underwent his annual employment physical at Mt. Sinai Hospital. He was administered a drug test as part of that routine annual physical mandated by his employer. The employer had no reasonable suspension to drug test the Respondent. The subsequent gas chromatography, mass spectrometry analysis performed on Respondent's urine sample produced a reading of 27 nanograms of THC metabolites, i.e., his urine test was positive for the metabolite associated with the drug marijuana or cannabinoids. When Respondent was advised by his supervisor that his test was positive for marijuana, Respondent was shocked. He denied ever having smoked marijuana and also denied being around anyone who was smoking marijuana. Respondent took the position that his sample must have been contaminated. When advised by his supervisors that he could have the sample re- tested, Respondent declined believing that if the sample was contaminated, the results of any re-testing would be the same. Respondent's supervisors were also shocked that Respondent's test proved positive. They held him in the highest regard and testified at the final hearing that Respondent is an excellent police officer, that he is conscientious and reliable, and that he possesses honesty and integrity. One of his supervisors testified that he would let Respondent "watch my back" without hesitation in any situation -- the highest tribute a police officer can give to another police officer. In spite of his supervisors' high opinion of Respondent, Respondent was fired from his employment with the school system's police unit as a result of the positive urine test results because that was that department's policy. Respondent consistently maintained that he had never used marijuana. Believing his urine sample to have been contaminated, he hired an attorney to represent him in proving that the test results were erroneous. Respondent consistently maintained that he did not use drugs. He maintained that he could not understand why his test was positive. At some point in an informal discussion with one of his supervisors, Respondent maintained that he did not use drugs and told that supervisor the only thing unusual that had happened prior to the drug test was that he had spent the weekend in the Keys and perhaps he had been some how exposed to marijuana there. Some time after Respondent's termination from the school system, Petitioner filed formal charges to revoke his certification as a police officer. Some where around that time, his then-fiancee finally told Respondent what had happened in the Keys the night that Respondent was drunk. She told him she had been afraid to tell him about it since she had not told him earlier. She thought that if she had told him before he was fired, then he might have been able to avoid being fired. Since she had not told him then, she had not told him subsequently since she thought he would consider it her fault that he had been fired and would refuse to marry her. She finally told him because of the pain he was suffering not knowing and because of the need for honesty in their relationship. Although Respondent had no recollection of the incident described to him by her, he believed her when she told him that it had happened. Respondent then accepted responsibility for having smoked marijuana on that one occasion when he was drunk. Respondent did not knowingly and voluntarily possess marijuana and did not knowingly and voluntarily introduce that substance into his body during that weekend in the Keys. Respondent's consumption of marijuana in the Keys on that weekend was an isolated incident, and Respondent has not possessed or consumed marijuana prior to or subsequent to that incident. Although Respondent exhibited poor judgment in becoming so intoxicated that evening in the Keys, Respondent does possess good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against Respondent in this cause. DONE and ENTERED this 18th day of July, 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 18th day of July, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6484 Petitioner's proposed findings of fact numbered 1-6, 8-10, and 12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 11, and 15 have been rejected as being unnecessary to the issues involved in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not being supported by the weight of the credible evidence in this cause. The first through fourth, fifth, eighth, ninth, and fourteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been adopted either verbatim or in substance in this Recommended Order. The sixth, seventh, and tenth through thirteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Copies furnished: Mark Richard, Esquire 304 Palermo Avenue Coral Gables, Florida 33134 Elsa Lopez Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 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 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.
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, Leon Lewis (Lewis), has been employed by the County as a correctional officer since September 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 Lewis. 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 Lewis had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the 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 Lewis and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You actually and intentionally struck Edward Thornton against the will of the said Edward Thornton. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Lewis 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 an assessment of Lewis' moral character, the proof demonstrates that the County undertook a pre-employment interview of Lewis on April 20, 1984, at which time he admitted to having "tried marijuana one time, four years ago." At the time of use, Lewis was 17 years of age and a high school student; he has not otherwise experimented with controlled substances. The proof also demonstrates that in October 1982, Lewis struck one Edward Thornton on the head with an umbrella. The circumstances surrounding such blow being struck demonstrate that, following a high school football game, Thornton was harassing Lewis' girlfriend when she, crying, sought Lewis out. At that time, Thornton and a number of his friends confronted Lewis and his girlfriend. Reasonably fearing an attack, Lewis grabbed an umbrella and exclaimed "Before you hit me, I'm going to have to get one of you," and struck Thornton on the head. Other than a cut to the head, there is no proof that Thornton suffered any significant injury. While Lewis was arrested as a consequence of the incident, the matter was subsequently dismissed and the record expunged. Notwithstanding the County's conclusion, based on its investigation and analysis of Lewis' background, that Lewis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the two isolated incidents, heretofore discussed, in Lewis' life. The Commission's action is unwarranted. Here, Lewis, born February 25, 1963, used marijuana one time, nine years ago, when he 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. Likewise, the isolated incident of striking Thornton over the head with an umbrella when Lewis was 19 years of age was hardly proximate to his employment, or this consideration of his application for certification, and does not, under the circumstances presented, evidence bad moral character. 4/ To date, Lewis has been employed by the County as a correctional officer, a position of trust and confidence, for over three and one-half years. There is no suggestion that he has committed any act or offense that would reflect adversely on his moral character during the term of such employment. Overall, Lewis 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, Leon Lewis, 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.
