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, John Hawks (Hawks), has been employed by the County as a correctional officer since February 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 Hawks. 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 Hawks 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 Hawks 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 cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks 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 Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over 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. Overall, Hawks 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, John Hawks, 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.
The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what penalty is appropriate.
Findings Of Fact Respondent is a certified correctional officer. His certification number is 184024. Respondent worked for the Department of Corrections (DOC) as a correctional officer for six and one-half years. He resigned from DOC on March 15, 2005. Respondent’s resignation followed an investigation by DOC’s Office of the Inspector General (OIG) into allegations that Respondent posted photographs of himself on an adult website and that he was involved in an escort service. The investigation, which was conducted by Senior Prison Inspector R. M. Spurlock, commenced after the OIG was provided a copy of a webpage printed from the Internet by Stephen Ruble, a correctional officer who worked with Respondent. The webpage printed by Officer Ruble is dated December 7, 2004, and contains two photographs of Respondent along with a photograph of an unidentified white female referred to as “Heavenly Blonde.” In one of the photographs, Respondent is standing and wearing only G-string underwear. In the other photograph, Respondent is sitting and wearing a tank-top shirt and tight shorts through which Respondent is displaying the outline of his penis. The text accompanying the photographs on the webpage printed by Officer Ruble states: Top Secret If you are looking for a classy and friendly, bi, black male who is 11x6 inches thick and can take you to the next level, then you’ve come to the right place! I am d/d free, and I have the papers to show this. I have sexy friends who can join us. Also available for doubles sessions with my friend Heavenly Blonde. I’m based in Orlando but travel the entire state of Florida, plus out of state, so please check in with me. Just give me a call and see what we can come up with! If you like to view me on camera, please contact me. Incall rates: $65 / ½ hour $150 / each additional hour Couples, join me and Heavenly Blonde: $200 / hour $100 / each additional hour $250 / hour for men to join us Heavenly Blonde by herself: $150 / ¾ hour Top Secret [phone number1] Mr. Spurlock visited the same webpage on March 9, 2005, as part of his investigation. The copy of the webpage printed by Mr. Spurlock on that date contains the photograph in which Respondent is standing and wearing only G-string underwear, but Respondent’s head had been cropped from the photograph and the photograph had been enlarged to focus on the outline of Respondent’s penis that is clearly visible through his underwear. The photograph in which Respondent was sitting and displaying the outline of his penis through his shorts was no longer on the webpage. The photograph of Heavenly Blonde was also no longer on the webpage, but there was a photograph of an unidentified black female referred to as “Secret Angel” who was posed in a sexually-provocative position wearing only a bra and G-string underwear. The text accompanying the photographs on the webpage viewed and printed by Mr. Spurlock states: Top Secret Hi, I am Topsecretone from the Orlando area. I am very put together and love to have fun. I have many friends that can join us, male or female. For example, my friend Secret Angel is available to join us! I only want to talk to someone that knows what they are into and what they want. I am a Black male with a truly thick 11”x6” of manhood. Please contact me for all info, leave your full name, number and if you are at a hotel room number. Top Secret topsecretone@cfl.rr.com[2] Mr. Spurlock interviewed Respondent on March 15, 2005, as part of his investigation. Respondent voluntarily appeared for the interview, which was conducted at Respondent’s place of employment, DOC’s Central Florida Reception Center. The interview lasted for approximately 20 minutes, and Respondent’s statements during the interview were made under oath. In the interview, Respondent initially denied that he posted any photographs of himself online or that he was involved with an escort service. However, after Mr. Spurlock showed him copies of the webpages that he and Officer Ruble had printed, Respondent changed his story and admitted that he posted the photographs of himself on the webpage; that in connection the posting he offered to provide, and did provide, his sexual services for money; and that he had been advertising his sexual services over the Internet since 2001. Respondent’s admissions during the interview are found to be reliable. The admissions were accompanied by details regarding the operation of webpage, the manner in which Respondent was compensated for his sexual services, and the reasons why Respondent cropped his head out of the photograph after its original posting. There is no credible evidence that the admissions were coerced and, indeed, Respondent expressly acknowledged as much at the end of the interview. Respondent testified at the final hearing that the reason that he ended up making the admissions during the interview was that he was under a great deal of stress at the time, as evidenced by the fact that “just before the interview” he was given 30 days of “stress leave” by his doctor. That explanation is not persuasive because Respondent later testified that the leave occurred in November and December 2004, which was more than three months before the interview. Respondent resigned from DOC approximately 15 minutes after the interview concluded. In his testimony at the final hearing, Respondent did not deny that he is depicted in the photographs on the webpage printed by Officer Ruble and Mr. Spurlock. However, Respondent did deny that that he posted the photographs on the webpage. Respondent testified that several months after his interview with Mr. Spurlock, he learned that his ex-girlfriend posted the photographs on the webpage to “set [him] up” and “get [him] in trouble” because she was upset with him because he would not marry her. He further testified that he was unaware that his ex-girlfriend had posted the photographs on the Internet. Respondent’s explanation at the final hearing as to how the photographs appeared on the Internet is not credible. His uncorroborated, self-serving testimony on the issue was not persuasive. For example, Respondent’s claim that his ex- girlfriend posted the photographs on the webpage out of spite is illogical because he testified that he and his ex-girlfriend did not break-up until June 2005, whereas the photographs printed by Officer Ruble (in December 2004) and by Mr. Spurlock (in March 2005) predated the break-up. Respondent testified that he had no disciplinary problems during the course of his employment with DOC. The Commission offered no evidence to the contrary. The record does not reflect whether Respondent is being criminally prosecuted for the escort services that he advertised on the webpage.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order revoking Respondent’s certification. DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 2nd day of May, 2006.
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, Kenneth Hart (Hart), has been employed by the County as a correctional officer since June 30, 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 Hart. 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 Hart 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 Hart 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, Hart filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hart 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 Hart on May 22, 1986, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Hart used marijuana on approximately three occasions and cocaine on approximately three occasions, that such use was sporadic and infrequent, and that such use occurred more than two years prior to the interview. Notwithstanding the County's conclusion, based on its investigation and analysis of Hart's background, that Hart possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his infrequent and sporadic use of marijuana over 5 years ago. The Commission's action is not warranted by the proof. Here, Hart, born February 15, 1962, used marijuana and cocaine approximately three times over 5 years ago when he was 21-22 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, Hart has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hart 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, Kenneth Hart, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989.
Findings Of Fact The Petitioner, James A. Detzel, age 40, was born in Miami, Florida, and he lived there until sometime during his junior high school years when he went into the United States Marine Corps. He subsequently earned and received a GED diploma from high school. At age 19 the Petitioner began to get into trouble with the law. He was arrested and convicted in Atlanta, Georgia, for armed robbery in 1960, and served a two year sentence. Between this occurrence and the year 1968 he was arrested and convicted three more times, for robbery, escape while serving the robbery sentence, and for possession of burglary tools. In 1968 the Petitioner was arrested for breaking and entering-grand larceny in Dade County, Florida, and sentenced to 15 years. He served nine and one-half years, and received a conditional release in 1976. A conditional release is the same as parole, but the Petitioner had previously violated parole and was not again eligible to receive parole. Thus, he received the conditional release. In October of 1981, the Petitioner's conditional release was terminated, after it had been satisfactorily completed. During the years, the Petitioner has also been arrested and convicted of breaking and entering-petit larceny, receiving stolen property, and larceny of an automobile. At the present time, however, he has paid his debts to society on all of these charges. Nevertheless, the Petitioner has not yet had his civil rights restored, although he is apparently eligible to apply therefor. The Petitioner contends that he has been rehabilitated, and thus is now eligible to be licensed as a repossessor. He is married and has two children. He is buying a home in Tampa. He has been steadily employed since 1976, and is now working as repossessor in Tampa. His employers have found him to be reliable and trustworthy employee. The Petitioner has not been in any trouble with the law since 1968, and he has a satisfactory work record since his release from prison. The Petitioner has been honest and loving with his wife and family. He is a changed man now, his wife contends, and is a good family provider. The Petitioner's Parole Officer confirms that his life seems to have become stabilized now.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of James A. Detzel for a Class E (Repossessor) License, be denied. THIS RECOMMENDED ORDER entered on this 5 day of February, 1982. WILLIAM B. THOMAS 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 5th day of February, 1982. COPIES FURNISHED: Richard S. Blunt, Esquire 112 South Armenia Avenue Tampa, Florida 33609 James V. Antista, Esquire Room 106 Gray Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE JAMES A. DETZEL, Petitioner, vs. DOAH CASE NO. 81-2847S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 3/Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Fialko had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of food moral character. By letter dated November 1, 1988, the Commission notified Fialko and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, David Fialko, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
Findings Of Fact Petitioner has been repeatedly convicted of offenses against the criminal law, from vagrancy on December 31, 1958, to gambling on May 3, 1976. He has been convicted in the courts of three states on various charges, including assault and battery, aggravated assault and battery, carrying a concealed weapon, destroying city property, disturbing the peace, resisting arrest, battery on a police officer, non-support, possession of dangerous drugs and possession of marijuana. In addition, he was arrested for and charged with assignation and vagrancy; and posted bonds which were forfeited. According to a personal questionnaire petitioner filled out on March 16, 1978, petitioner is single; he has been employed at the same place since 1976; and he has lived at the same address since 1974.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, 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.
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.
The Issue The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995),1 and Florida Administrative Code Rules 11B-27.0011(4)(b) and (c),2 by failing to maintain the qualifications established in Section 943.13(7) for good moral character; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for certifying and regulating law enforcement officers in the state. Respondent is certified as a law enforcement officer pursuant to certificate number 139869 and is employed as a correctional officer by the Jacksonville Sheriff's Department (the "Department"). On January 23, 1994, Deputy J. W. Strickland observed Respondent in a parked vehicle in a vacant lot in an area of town known to the deputy as an area of drugs and prostitution. A white female was in the passenger seat of the vehicle. Deputy Strickland approached the vehicle and asked Respondent what he was doing in the area. Respondent identified himself as a correctional officer. Deputy Strickland recognized the female as Ms. Sherry Reinstzell. Ms. Reinstzell has a criminal history of prostitution. Deputy Strickland completed a field investigation report. Respondent and Ms. Reinstzell drove away. Deputy Strickland filed the field investigation report with the appropriate Department office. Sgt. Donald Retzer, Internal Affairs, received a copy of the field investigation report. He opened an internal affairs investigation concerning Respondent's conduct. Sgt. Retzer obtained a sworn statement from Respondent on January 28, 1994. Respondent stated under oath that he was just giving Ms. Reinstzell a ride to see a friend and did not know she was a prostitute. He denied any sexual activity with Ms. Reinstzell. Later in the same interview on January 28, 1994, Sgt. Retzer confronted Respondent with additional evidence previously gathered by Sgt. Retzer, including a sworn statement by Ms. Reinstzell. Respondent admitted that he picked Ms. Reinstzell up on Lane Avenue and negotiated a monetary arrangement for sex. Respondent then drove to an abandoned warehouse where Ms. Reinstzell performed fellatio on Respondent. Respondent paid Ms. Reinstzell $20 for the oral sex. He then drove her to a house where she used the $20 as part of the purchase price for illegal drugs with Respondent's knowledge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 943.1395(6), guilty of violating Section 943.1395(7) and Rule 11B-27.0011(4), and suspending Respondent's certificate for two years, including the period, if any, that Respondent has been unemployed by the Department prior to the date of this Recommended Order. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Savage is a certified correctional officer in the State of Florida. As such, he holds a position of high trust. Savage abused that trust by lying on his application for employment as a court bailiff in Palm Beach County. The deception came to light between March 4, 2002, and April 15, 2002, when Elizabeth McElroy (McElroy) in her official capacity as background investigator for the Palm Beach County Sheriff’s Office, attempted to verify information provided under oath by Savage, and to search law enforcement databases to assure that he had been truthful in claiming that he had no criminal record. Instead, McElroy's investigation revealed that Savage failed to disclose two arrests, one of which involved the use of a firearm. Florida law requires, as a minimum qualification for its correctional officers, that they be of good moral character. Florida law further provides that officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement. The public has every right to expect that those who work in law enforcement will, at a minimum, tell the truth under oath. Individuals can be rehabilitated and can go on to occupy positions of trust, but that decision is to be made by duly authorized licensing authorities acting upon complete information. It should not be necessary for a background investigator to have to unearth information which the individual concealed on an employment application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Savage's correctional certificate be permanently revoked. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 3rd day of September, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Savage 7547 Edisto Drive Lake Worth, Florida 33467
