09-002127PL Criminal Justice Standards And Training Commission vs. Leonardo Martinez
 Status: Closed
Recommended Order on Thursday, November 12, 2009.


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Summary: Respondent failed to maintain good moral character due to violation of a lewd and lascivious offense on a child under 16 years. Recommend revocation of correctional and law enforcement certifications.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CRIMINAL JUSTICE STANDARDS AND )

13TRAINING COMMISSION, )

16)

17Petitioner, )

19)

20vs. ) Case No. 09-2127PL

25)

26LEONARDO MARTINEZ, )

29)

30Respondent. )

32)

33RECOMMENDED ORDER

35Pursuant to notice, the Division of Administrative

42Hearings, by its duly-designated Administrative Law Judge,

49Jeff B. Clark, held a final administrative hearing in this case

60on August 18, 2009, in Lakeland, Florida.

67APPEARANCES

68For Petitioner: Sharon Saxler, Esquire

73Florida Department of Law Enforcement

78Post Office Box 1489

82Tallahassee, Florida 32302

85For Respondent: Leonardo Martinez, pro se

91STATEMENT OF THE ISSUE

95Whether Respondent's conduct evidenced lack of "good moral

103character" as alleged in the Administrative Complaint.

110PRELIMINARY STATEMENT

112On October 29, 2008, Petitioner, Florida Department of Law

121Enforcement, Criminal Justice Standards and Training Commission,

128filed an Administrative Complaint alleging that on July 13,

1372007, Respondent, Leonardo Martinez, "did unlawfully handle,

144fondle, or assault a minor female victim, a child under 16 years

156of age, in a lewd, lascivious, or indecent manner"; and,

166further, alleging that this conduct evidenced lack of "good

175moral character" so as to warrant disciplining Respondent's

183certifications as a correctional and law enforcement officer.

191Respondent disputed the allegations of fact contained in

199the Administrative Complaint and requested a formal hearing

207before an Administrative Law Judge.

212By letter dated April 17, 2009, the matter was forwarded by

223Petitioner to the Division of Administrative Hearings requesting

231that the matter be assigned to an Administrative Law Judge for

242hearing. On April 21, 2009, an Initial Order was sent to both

254parties. Based on the responses of the parties to the Initial

265Order, the case was scheduled for final hearing on July 1, 2009,

277in St. Cloud, Florida. On June 12, 2009, Petitioner requested a

288continuance, which was granted, and the case was rescheduled for

298August 18, 2009.

301The final hearing took place as rescheduled. Petitioner

309presented two witnesses: S. R., the minor victim, and Tom Clem.

320Petitioner offered four exhibits that were received into

328evidence and marked Petitioner's Exhibits 1 through 4.

336Respondent was present during the initial stage of the hearing

346when procedural matters were discussed; however, he elected to

355leave the hearing room when Petitioner presented its witnesses.

364Respondent did not testify and did not offer any exhibits.

374The Transcript of Proceedings was filed with the Division

383of Administrative Hearings on September 16, 2009. Petitioner

391filed its Proposed Recommended Order on September 28, 2009. On

401October 6, 2009, Respondent requested an additional ten days to

411file his proposed recommended order. On October 7, 2009, an

421Order Granting Extension of Time was entered. Respondent did

430not file a proposed recommended order.

436All statutory references are to Florida Statutes (2008),

444unless otherwise noted.

447FINDINGS OF FACT

450Based on the oral and documentary evidence presented at the

460final hearing, the following Findings of Fact are made:

4691. Respondent has two certifications: Correctional

475(No. 188545) issued on December 13, 1999; and Law Enforcement

485(No. 192621) issued on July 27, 2000.

4922. At the times relevant to the allegations of impropriety

502in the Administrative Complaint, Respondent was a law

510enforcement officer with the Kissimmee, Florida, Police

517Department.

5183. On or about July 13, 2007, while sleeping over at the

530minor victim's father's residence, Respondent picked up S.R., a

53915-year-old child, put her into a bed and straddled her, holding

550her wrists with one hand while sliding his other hand over the

562side of her body. He then "nuzzled" or "sucked" on her neck and

575ear while S.R. struggled underneath him. Respondent "jumped" or

"584flinched back" when S.R.'s younger sister came back into the

594room, while S.R. continued to struggle with Respondent.

6025. The younger sister of S.R. was in the bathroom and

613heard S.R. call out. When she ran into the bedroom, Respondent

624jumped off of the bed, and the younger sister saw S.R. jump off

637of the bed and get into a second bed in the room. The younger

651sister also noticed that S.R. was "scared."

6586. S.R. sat "quietly and cried" while telling Krista

667Davis, her father's girlfriend that "while her little

675sister . . . was in the bathroom, . . . Leo had gotten on top of

692her in her bed and started to kiss her down her neck and on her

707ear . . . and rubbed the side of her body."

718CONCLUSIONS OF LAW

7217. The Division of Administrative Hearings has

728jurisdiction over the subject matter of and the parties to this

739proceeding. § 120.569, Fla. Stat. (2009)

7458. Petitioner has the burden of proof to show by "clear

756and convincing" evidence that Respondent committed the acts

764alleged in the Administrative Complaint. Ferris v. Turlington ,

772510 So. 2d 292 (Fla. 1987).

7789. The "clear and convincing" standard requires:

785[T]hat the evidence must be found to be

793credible; the facts to which the witnesses

800testify must be distinctly remembered; the

806testimony must be precise and explicit and

813the witnesses must be lacking in confusion

820as to the facts in issue. The evidence must

829be of such weight that it produces in the

838mind of the trier of fact a firm belief or

848conviction, without hesitancy, as to the

854truth of the allegations sought to be

861established.

862In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

874v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

88510. Disciplining a professional license, such as a law

894enforcement certification, is penal in nature. Statutes that

902authorize the imposition of penal sanctions must be strictly

911construed and any ambiguity must be construed in favor of

921Respondent. Elmariah v. Department of Business and Professional

929Regulation , 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

93911. Section 943.13, Florida Statutes, establishes the

946minimum qualifications for law enforcement officers in Florida.

954Subsection 943.13(7), Florida Statutes, states, in part, that

962law enforcement officers must:

966Have a good moral character as determined by

974a background investigation under procedures

979established by the commission.

98312. Subsection 943.1395(7), Florida Statutes, authorizes

989Petitioner to specify by rule the definition of "good moral

999character" for purposes of implementing the penalties Petitioner

1007may levy against an officer for violating the "good moral

1017character" clause contained in Subsection 943.13(7), Florida

1024Statutes, after the officer is certified. Subsection

1031943.1395(7), Florida Statutes, provides that:

1036(7) Upon a finding by the commission that

1044a certified officer has not maintained good

1051moral character, the definition of which has

1058been adopted by rule and is established as a

1067statewide standard, as required by

1072s. 943.13(7), the commission may enter an

1079order imposing one or more of the following

1087penalties:

1088(a) Revocation of certification.

1092(b) Suspension of certification for a

1098period not to exceed 2 years.

1104(c) Placement on a probationary status

1110for a period not to exceed 2 years, subject

1119to terms and conditions imposed by the

1126commission. Upon the violation of such

1132terms and conditions, the commission may

1138revoke certification or impose additional

1143penalties as enumerated in this subsection.

1149(d) Successful completion by the officer

1155of any basic recruit, advanced, or career

1162development training or such retraining

1167deemed appropriate by the commission.

1172(e) Issuance of a reprimand.

117713. Florida Administrative Code Rule 11B-27.0011(4)

1183defines "good moral character" for purposes of the

1191implementation of disciplinary action upon Florida law

1198enforcement and correctional officers. The rule states in

1206relevant portion:

1208(4) For the purposes of the Criminal

1215Justice Standards and Training Commission's

1220implementation of any of the penalties

1226specified in Section 943.1395(6) or (7),

1232F.S., a certified officer's failure to

1238maintain good moral character required by

1244Section 943.13(7), F.S., is defined as:

1250* * *

1253(a) The perpetration by an officer of an act

1262that would constitute any felony offense,

1268whether criminally prosecuted or not.

127314. Subsection 800.04(6), Florida Statutes, defines the

1280felony, "lewd and lascivious" conduct, as:

1286(a) A person who:

12901. Intentionally touches a person under 16

1297years of age in a lewd or lascivious manner;

1306(b) An offender 18 years of age or older

1315who commits lewd or lascivious conduct

1321commits a felony of the second degree,

1328punishable as provided in s. 775.082,

1334s. 775.083, or s. 775.084.

133915. The evidence demonstrates that Respondent,

1345intentionally touched S.R., a person under 16 years of age, in a

1357lewd and lascivious manner.

136116. The facts in the instant case are similar to the facts

1373in Washington v. State , 766 So. 2d 325 (Fla. 4th DCA 2000),

1385where the court ruled that evidence of a defendant brushing,

1395touching or caressing a 15-year-old minor was sufficient to

1404establish a prima facie case of lewd assault on a child. In the

1417Washington case, the perpetrator made moaning noises of

1425pleasure, and while no like sounds were testified to in the

1436instant case, Respondent was "sucking" or "nuzzling" the neck

1445and ears of the child while she was squirming and trying to push

1458him off as he straddled her body.

146517. The only evidence in the record clearly shows that

1475Respondent intentionally touched S.R. in a lewd and lascivious

1484manner committing a felony.

148818. Florida Administrative Code Rule 11B-27.005(5)(a)11.,

1494specifies the recommended penalty for an officer's violation of

1503a lewd and lascivious offense on a child under 16, is

1514revocation.

1515RECOMMENDATION

1516Based upon the foregoing Findings of Fact and Conclusions

1525of Law, it is

1529RECOMMENDED that Respondent, Leonardo Martinez, be found

1536guilty of failure to maintain good moral character as required

1546by Subsection 943.13(7), Florida Statutes; and that his

1554certifications as a correctional and law enforcement officer be

1563revoked.

1564DONE AND ENTERED this 12th day of November, 2009, in

1574Tallahassee, Leon County, Florida.

1578S

1579JEFF B. CLARK

1582Administrative Law Judge

1585Division of Administrative Hearings

1589The DeSoto Building

15921230 Apalachee Parkway

1595Tallahassee, Florida 32399-3060

1598(850) 488-9675

1600Fax Filing (850) 921-6847

1604www.doah.state.fl.us

1605Filed with the Clerk of the

1611Division of Administrative Hearings

1615this 12th day of November, 2009.

1621COPIES FURNISHED :

1624Michael Crews, Program Director

1628Division of Criminal Justice

1632Professionalism Services

1634Florida Department of Law Enforcement

1639Post Office Box 1489

1643Tallahassee, Florida 32302

1646Michael Ramage, General Counsel

1650Florida Department of Law Enforcement

1655Post Office Box 1489

1659Tallahassee, Florida 32302

1662Sharon Saxler, Esquire

1665Florida Department of Law Enforcement

1670Post Office Box 1489

1674Tallahassee, Florida 32302

1677Leonardo Martinez

1679NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1685All parties have the right to submit written exceptions within

169515 days from the date of this Recommended Order. Any exceptions

1706to this Recommended Order should be filed with the agency that

1717will issue the Final Order in this case.

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PDF
Date
Proceedings
PDF:
Date: 01/21/2020
Proceedings: Agency Final Order filed.
PDF:
Date: 02/17/2010
Proceedings: Agency Final Order
PDF:
Date: 11/12/2009
Proceedings: Recommended Order
PDF:
Date: 11/12/2009
Proceedings: Recommended Order (hearing held June 12, 2009). CASE CLOSED.
PDF:
Date: 11/12/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/07/2009
Proceedings: Order Granting Extension of Time (proposed recommended order to be filed by October 16, 2009).
PDF:
Date: 10/06/2009
Proceedings: Letter to Judge Clark from L. Martinez regarding request for additional time to file Proposed Recommended Order filed.
PDF:
Date: 09/30/2009
Proceedings: Petitioner's Proposed Recommended Order (signed) filed.
PDF:
Date: 09/28/2009
Proceedings: Petitioner's Proposed Recommended Order (unsigned) filed.
Date: 09/16/2009
Proceedings: Transcript filed.
Date: 08/18/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/12/2009
Proceedings: Notice of Service of Petitioner's Witness List and Exhibits filed.
PDF:
Date: 08/06/2009
Proceedings: Notice of Transfer.
PDF:
Date: 06/16/2009
Proceedings: Order Denying Motion to Set Video Teleconference.
PDF:
Date: 06/16/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 18, 2009; 9:00 a.m.; St. Cloud, FL).
Date: 06/12/2009
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 06/05/2009
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for June 12, 2009; 10:00 a.m.).
PDF:
Date: 05/22/2009
Proceedings: Motion to Set Video Teleconference filed.
PDF:
Date: 05/04/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 05/01/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/01/2009
Proceedings: Notice of Hearing (hearing set for July 1, 2009; 9:00 a.m.; St. Cloud, FL).
PDF:
Date: 04/21/2009
Proceedings: Initial Order.
PDF:
Date: 04/21/2009
Proceedings: Election of Rights filed.
PDF:
Date: 04/21/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/21/2009
Proceedings: Agency referral

Case Information

Judge:
JEFF B. CLARK
Date Filed:
04/21/2009
Date Assignment:
08/05/2009
Last Docket Entry:
01/21/2020
Location:
St. Cloud, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

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