07-003657PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Lazaro R. Morera Status: Closed Recommended Order on Wednesday, September 17, 2008.

Summary: Revocation of certification of law enforcement officer who knowingly provided insurance claim forms for treatments not received and who lied under oath during an internal affairs investigation, an official proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case Nos. 07-3656PL

) 07-3657PL

LAZARO R. MORERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on April 10 and 11, 2008, by video

teleconference with sites in Miami and in Tallahassee, Florida.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Department of Law Enforcement - 7100

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: David H. Nevel, Esquire

Nevel & Greenfield, P. A.

6741 Orange Drive

Davie, Florida 33314

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations in the two Administrative Complaints filed against

him, and, if so, what disciplinary action should be taken

against him, if any.

PRELIMINARY STATEMENT

By two separate Administrative Complaints, the Criminal

Justice Standards and Training Commission alleged that

Respondent Lazaro R. Morera had violated several statutes and

rules regulating his conduct as a law enforcement officer.

Respondent requested an administrative hearing regarding each

Administrative Complaint, and both requests were transmitted to

the Division of Administrative Hearings to conduct the

evidentiary proceeding. Upon being advised in the Commission's

Unilateral Response to the Initial Order in each case that these

cases were related, the cases were consolidated by Order of

Consolidation entered September 4, 2007.

Petitioner Department of Law Enforcement, Criminal Justice

Standards and Training Commission, presented the testimony of

Violeta Serrano, Arnaldo Bugallo, Jose Gustavo Coutin,

Jose Arturo Coutin, Eldris Rodriguez, and Cornelious T. O'Regan.

Respondent Lazaro R. Morera testified on his own behalf and

presented the testimony of Ana Ruiz, Patrick Devaney, and

Leidys Plas-Morera. Additionally, Petitioner's Exhibits

numbered 1, 7, and 8 and Respondent's Exhibit numbered 1 were

admitted in evidence.

The four-volume Transcript of the final hearing was filed

on June 11, 2008. The exhibits were filed July 21, 2008.

Respondent filed his proposed recommended order on September 4,

2008, and Petitioner filed its proposed recommended order on

September 5, 2008.

FINDINGS OF FACT

1. On September 24, 1996, Respondent Lazaro R. Morera was

certified by Petitioner Department of Law Enforcement, Criminal

Justice Standards and Training Commission, and was issued law

enforcement certificate number 166884.

2. At all times material hereto, Respondent was employed

as a police officer by the City of Miami Beach.

3. Jose G. Coutin (hereafter referred to as "Coutin, Sr.")

owned and operated a business in Miami known as Manhattan

Medical Center, a medical clinic providing therapy for persons

injured in auto accidents. The procedure at Manhattan Medical

was the same for all patients. When a new patient came in, the

patient filled out a form. Thereafter, the patient was

scheduled for 34 therapy sessions, starting with three sessions

a week. Every 30 days the patient signed a therapy sheet, which

was a form confirming the patient had received the prescribed

treatments, whether the patient had received treatment or not.

4. Manhattan Medical billed the patient's insurance

company every 30 days. After the usual 34 therapy sessions,

Manhattan Medical then sent a final bill to the patient's

insurance company.

5. The patient made no payments or co-payments to

Manhattan Medical for treatment. Manhattan Medical accepted

whatever amounts the insurance company paid and then gave the

patient a percentage of the money Manhattan Medical received.

Coutin, Sr., who was not a medical doctor and had no medical

training, privately advised the patients coming to Manhattan

Medical that in addition to giving them part of the money

Manhattan Medical received from that patient's insurance

company, Manhattan Medical would also pay patients for referring

others to the clinic.

6. Arnaldo Bugallo is a "meter maid" for the City of Miami

Beach Parking Department. He frequently spoke with Respondent

when they saw each other during work activities. They were not

personal friends.

7. Bugallo was treated at Manhattan Medical for a back

injury received in an auto accident. He never paid any monies

related to his numerous treatments. Although he testified that

he thought he could get additional free treatments for referring

patients to Manhattan Medical, he denied knowing that he would

receive from Manhattan Medical a portion of the money the clinic

received from Bugallo's insurance company.

8. When Coutin, Sr., quietly slipped a check for

approximately $350 into Bugallo's backpack, Bugallo simply

cashed it without questioning the reason he was receiving a

check from Manhattan Medical.

9. In early 2000 Respondent was involved in an auto

accident. Some time later, Respondent complained at work to

Bugallo that his back hurt, and Bugallo gave Respondent the

address and telephone number of Manhattan Medical.

10. When Respondent went to Manhattan Medical, Coutin,

Sr., explained to him how the billings to Respondent's insurance

company would work. Since Respondent had not come to the clinic

shortly after his auto accident, Coutin, Sr., explained to

Respondent that they would back-date the dates of his treatments

in order to relate his treatments to his car accident.

Respondent signed his therapy forms in blank. Thereafter, he

seldom came in for treatment, but signed more blank forms at the

clinic when the clinic called to say he had to come in to sign

forms so they could bill his insurance company.

11. The percentage that Manhattan Medical would pay each

patient out of the monies received from that patient's insurance

company varied. The usual amount was twenty percent. Coutin,

Sr., paid Respondent thirty percent, however, because he knew

Respondent was a police officer. He paid Respondent $1,932 on

August 3, 2000, by check written on one of his other businesses,

representing thirty percent of the approximately $6,000 which

Manhattan Medical received from Respondent's insurance company.

12. Based upon information received in 2000 from insurance

companies, the Department of Financial Services initiated an

investigation of Manhattan Medical. Violeta Serrano, one of the

Department's insurance fraud investigators, reviewed insurance

claim files and interviewed patients who gave sworn statements

that they were paid money to treat at Manhattan Medical even

though they received no treatments. She also interviewed

runners who brought accident participants to Manhattan Medical

and were paid by the clinic to do so.

13. Based upon her investigation, she concluded that the

clinic was billing for services not rendered and was paying

alleged patients for treatments not received by them. She also

discovered that doctors were not even present at the clinic

every day.

14. She participated in the execution of a search warrant,

interviewed clinic employees, and took records from the clinic.

The clinic owner, Coutin, Sr., was arrested. Serrano

subsequently presented evidence to the State Attorney's Office,

and Respondent was arrested.

15. Coutin, Sr., already a convicted felon, was charged

with insurance fraud (state charges) and possession of three

guns by a convicted felon (a federal charge). Serrano arrested

Coutin, Sr., for insurance fraud a second time when he attempted

to collect more money while he was out on bond following his

first arrest by her.

16. Following his guilty plea, Coutin, Sr., received a

sentence of two years in a federal prison for 20 counts of

insurance fraud concurrent with two years for the weapons

charge.

17. Prior to Coutin, Sr., entering into his plea

agreement, Serrano questioned him regarding the information she

had on Respondent allegedly being treated at the clinic. He

agreed to cooperate in her investigation and told her about

Respondent's lack of treatments and about the check that he gave

to Respondent.

18. Coutin, Sr., has completed his prison term, has paid

$137,000 in restitution, and has completed five years of

probation.

19. The charges against Respondent were dropped by the

State Attorney's Office after he gave a sworn statement.

20. Also arrested about the same time as Coutin, Sr., were

Jose A. Coutin (hereinafter "Coutin, Jr.") and Coutin, Jr.'s,

wife. Coutin, Jr., operated a similar clinic near Manhattan

Medical. He also worked for Manhattan Medical, and Manhattan

Medical processed the billing and claims forms for his clinic.

21. Respondent never sold Luxor gold wire automobile rims

to Coutin, Jr., and Coutin, Sr., never gave Respondent any money

to pay for those rims.

22. An investigation regarding Respondent was commenced by

the internal affairs division of the City of Miami Beach Police

Department. On November 12, 2003, the case was re-assigned to

Officer Dale Twist.

23. Eldris Rodriguez is a claims processor for Allstate

Insurance. One of her co-workers is Ana Ruiz, who is currently

Respondent's fiancé. Rodriguez and Ruiz were very good friends,

who socialized together. Rodriguez' children and Respondent's

children played together.

24. On February 18, 2004, Respondent called Rodriguez at

work and asked if she would play a prank on someone for him.

She agreed to do so. He gave her a telephone number and asked

her to call that number and tell Dale Twist's wife that

Rodriguez was Dale Twist's mistress. After work, Rodriguez

called the telephone number, but received no answer. She called

Respondent to report that, and he told her to try again.

Rodriguez waited for a few moments and placed the call again.

This time a woman answered, and Rodriguez told the woman what

Respondent had instructed her to say, including where Rodriguez

and the woman's husband allegedly met each other. When that

telephone call was completed, Rodriguez called Respondent and

told him what had been said.

25. Rodriguez did not know Dale Twist and did not know

that he was a police officer with the City of Miami Beach Police

Department. When Respondent gave Rodriguez the name Dale Twist,

Respondent did not tell her that Twist was a police officer. He

merely told Rodriguez that Twist worked for the City.

26. Before long, Rodriguez was contacted by Cornelious

O'Regan of the City of Miami Beach Police Department internal

affairs division regarding her telephone call. She gave

statements to internal affairs twice during the month of March.

27. On May 21, 2004, Respondent gave a sworn statement as

part of the internal affairs investigation. He denied giving

Dale Twist's telephone number to Rodriguez and denied asking her

to make the telephone call to Twist's wife claiming to be

Twist's mistress.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

29. Petitioner seeks to take disciplinary action against

Respondent in this proceeding. The burden of proof, therefore,

is on Petitioner, and Petitioner must prove the allegations in

each of its Administrative Complaints by clear and convincing

evidence. Dept. of Banking & Finance, Division of Securities &

Investor Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996). Petitioner has met its burden as to the allegations in

both Administrative Complaints.

30. The Administrative Complaint against Respondent in

Case No. 21178 (DOAH Case No. 07-3656PL), essentially, alleges

that between March 31 and July 31, 2000, Respondent, with the

intent to defraud or deceive an insurance company, presented

statements in support of a claim for payment pursuant to an

insurance policy knowing that such statements contained false or

misleading information. The Administrative Complaint further

alleges that between those same dates Respondent knowingly

obtained or endeavored to obtain money valued at $300 or more,

which was the property of an insurance company, with the intent

to deprive the owner of that property or to appropriate the

property to his own use or to the use of any person not entitled

thereto. The Administrative Complaint alleges, therefore, that

Respondent violated Sections 817.234, 812.014, and 943.1395(7),

Florida Statutes, and Florida Administrative Code Rule 11B-

27.0011(4)(a), in that Respondent has failed to maintain the

qualifications established in Section 943.13(7), Florida

Statutes, which requires that a law enforcement officer in the

State of Florida have good moral character.

31. The evidence is clear and convincing that Respondent

signed blank therapy forms verifying that he had received

treatments which he had not received to support claims that

Manhattan Medical was filing on his behalf in order to

wrongfully obtain insurance benefits for himself and for

Manhattan Medical. Section 817.234(11), Florida Statutes, makes

the filing of false and fraudulent insurance claims a felony of

the third degree if the value of the property involved is less

than $20,000. Similarly, Section 812.014(1) and (2), Florida

Statutes, defines as theft the knowing obtaining or endeavoring

to obtain another's property with the intent to appropriate the

property to the use of any person not entitled to the use, and

classifies such conduct as a felony of the third degree.

32. Section 943.1395(7), Florida Statutes, authorizes

Petitioner to take disciplinary action against a law enforcement

officer who has not maintained good moral character, the

definition of which is adopted by rule and is established as a

statewide standard. Florida Administrative Code Rule 11B-

27.0011(4)(a), includes within the definition of failure to

maintain good moral character the perpetuation by an officer of

an act that would constitute any felony offense, whether

criminally prosecuted or not. Despite the fact that at least

one of the witnesses against Respondent regarding Respondent's

insurance fraud is a convicted felon, Petitioner has proven by

clear and convincing evidence that Respondent has failed to

maintain good moral character.

33. The Administrative Complaint against Respondent in

Case No. 22842 (DOAH Case No. 07-3657) alleges that Respondent

made a false statement under oath in an official proceeding on

May 21, 2004. The Administrative Complaint further alleges that

Respondent, therefore, violated Sections 837.02(1) and

943.1395(7), Florida Statutes, and Florida Administrative Code

Rule 11B-27.0011(4)(a).

34. Section 837.02(1), Florida Statutes, prohibits making

a false statement, which the person does not believe to be true,

under oath in an official proceeding with regard to a material

matter and classifies such conduct as a felony of the third

degree. The evidence is clear and convincing that Respondent,

under oath during the statement he gave to internal affairs,

falsely denied giving Twist's phone number to Rodriguez and

asking her to call Twist's wife and pretend she was Twist's

mistress.

35. Petitioner has, therefore, proven that Respondent

violated Section 837.02(1), Florida Statutes, by committing

perjury in an official proceeding. Petitioner has also proven,

therefore, that Respondent violated Florida Administrative Code

Rule 11B-27.0011(4)(a), and, therefore, Section 943.1395(7),

Florida Statutes.

36. Section 943.1395(7), Florida Statutes, authorizes the

Commission to discipline an officer who fails to maintain good

moral character, using a wide range of penalties. One of those

is revocation. Signing false statements and lying under oath

during an official investigation are very serious offenses for a

law enforcement officer and severely undermine the public's

trust in its law enforcement officers. No credible mitigating

evidence has been offered to offset the serious nature of

Respondent's conduct. Revocation of Respondent's certification

as a law enforcement officer is the appropriate penalty in this

case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent guilty of the allegations contained in both

Administrative Complaints and revoking Respondent's

certification as a law enforcement officer.

DONE AND ENTERED this 17th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September, 2008.

COPIES FURNISHED :

David H. Nevel, Esquire

Nevel & Greenfield, P. A.

6741 Orange Drive

Davie, Florida 33314

Sharon Saxler, Esquire

Department of Law Enforcement - 7100

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.