88-006446 Esteban Tabaoado vs. Department Of Law Enforcement
 Status: Closed
Recommended Order on Wednesday, June 28, 1989.


View Dockets  
Summary: Applicant for certification as correction officer failed to demonstrate good moral character based on recent use of controlled substances.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ESTEBAN TABAOADO, )

11)

12Petitioner, )

14)

15and )

17)

18METROPOLITAN DADE COUNTY, )

22)

23Intervenor, )

25)

26vs. ) CASE NO. 88-6446

31)

32FLORIDA DEPARTMENT OF LAW )

37ENFORCEMENT, CRIMINAL JUSTICE )

41STANDARDS AND TRAINING COMMISSION, )

46)

47Respondent. )

49___________________________________)

50RECOMMENDED ORDER

52Pursuant to notice, the Division of Administrative Hearings, by its duly

63designated Hearing Officer, William J. Kendrick, held a formal hearing in the

75above-styled case on April 4, 1989, in Miami, Florida.

84APPEARANCES

85For Petitioner: James C. Casey, Esquire

91Dade County Police

94Benevolent Association

9610680 N.W. 25th Street

100Miami, Florida 33172

103For Respondent: Joseph S. White, Esquire

109Florida Department of Law Enforcement

114Post Office Box 1489

118Tallahassee, Florida 32302

121For Intervenor: Lee Kraftchick, Esquire

126Assistant County Attorney

129Metro Dade Center

132111 N.W. 1st Street

136Suite 2810

138Miami, Florida 33128

141STATEMENT OF THE ISSUES

145At issue in this proceeding is whether petitioner possesses the requisite

156good moral character for certification as a correctional officer.

165PRELIMINARY STATEMENT

167The record in the instant case consists of the testimony and exhibits

179offered at the hearing held on April 4, 1989, as well as the generic record

194developed during the course of hearing on April 3-4, 1989. At the hearing held

208on April 4, 1989, petitioner called Hector Rocafort, Lois Spears, Sheila Dixon,

220Mitchell Spears, Nita Thomas, Olfuine Tabaoado, and Kevin Hickey as witnesses.

231Petitioner's exhibits 1-15 were received into evidence. Respondent called

240Hector Rocafort, Lois Spears, Ervie Wright, and Louviena Lee as witnesses, but

252offered no exhibits. The generic record developed during the course of hearing

264on April 3-4, 1989, consists of the testimony of Fred Crawford, Sandra Milton,

277Danny Quick, Louviena Lee and Kevin Hickey, as well as Hearing Officer exhibits

2901-38, petitioners' exhibit 1, respondent's exhibit 1, and intervenor's exhibit

3001. 1/ Intervenor's exhibit 1 was not, however, received into evidence.

311At the parties' request, a deadline was established for filing proposed

322findings of fact or other post hearing submissions that was more than ten days

336after the filing of the transcript in May 1989. Consequently, the parties

348waived the requirement that a recommended order be rendered within thirty days

360after the transcript is filed. Rule 221-6.031, Florida Administrative Code.

370The parties' proposed findings have been addressed in the appendix to this

382recommended order.

384FINDINGS OF FACT

387Background

3881. In June 1988, respondent, Florida Department of Law Enforcement,

398Criminal Justice Standards and Training Commission (Commission), acting on a tip

409from the local media that intervenor, Metropolitan Dade County, Department of

420Corrections and Rehabilitation (County), had in its employ a number of

431corrections officers who were not certified, undertook a review of the County's

443employment records. Following a comparison of the County's records and those of

455the Commission, the Commission identified 363 individuals, including the

464petitioner, who were employed by the County as correctional officers but who had

477not been certified by the Commission.

4832. On August 10-11, 1988, Commission personnel visited the County's

493personnel office, and audited the personnel file of each of the 363 individuals

506in question. The audit demonstrated that the files were disorganized, lacking

517documentation required by Rule 11B-27.002, Florida Administrative Code, to apply

527for certification, and that the County had failed to apply for certification on

540behalf of the 363 officers. 2/

5463. Over the course of their two-day visit, the Commission's personnel set

558up an "assembly line" and, together with the County's staff, attempted to

570complete the documentation on each file. Variously, registration forms and

580affidavits of compliance were prepared, and birth certificates, fingerprint

589cards and other missing documentation was assembled.

5964. On August 12, 1988, the Commission's personnel returned to Tallahassee

607with the subject registration forms and affidavits of compliance, but not with

619those of petitioner. Over the course of time, these applications were processed

631and the vast majority of the individuals were certified; however, the Commission

643declined, for reasons hereinafter discussed, to certify petitioner.

651The pending application

6545. Petitioner, Esteban Tabaoado (Tabaoado), has been employed by the

664County as a correctional officer periodically since September 11, 1984, without

675benefit of certification.

6786. On or about September 9, 1988, as a consequence of the aforementioned

691audit, the County, as the employing agency, applied for certification on behalf

703of Tabaoado. 3/ Accompanying the application (registration) was an affidavit of

714compliance, dated September 9, 1988, signed by Fred Crawford, Director of

725Metropolitan Dade County, Department of Corrections and Rehabilitation, which

734comported with existing law and which certified that such employing agency had

746collected, verified, and was maintaining on file evidence that Tabaoado had met

758the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes,

768or any rules adopted pursuant thereto. Among the provision of section 943.13 is

781the requirement that the applicant be of good moral character.

7917. By letter dated November 1, 1988, the Commission notified Tabaoado and

803the County that his application for certification as a correctional officer was

815denied for lack of good moral character because:

823You have unlawfully and knowingly possessed

829and introduced into your body cocaine.

8358. Following receipt of the Commission's letter of denial, Tabaoado filed

846a timely request for a formal hearing pursuant to Section 120.57(1), Florida

858Statutes. In his request for hearing, Tabaoado denied that he failed to possess

871the requisite good moral character necessary for certification.

879Good moral character

8829. Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County,

892as the employing agency, is responsible for conducting a thorough background

903investigation to determine the moral character of an applicant. Consistent with

914such mandate, the County routinely uses previous employment data, law

924enforcement records, credit agency records, inquiries of the applicant's

933neighbors and associates, and a pre-employment interview, at which a polygraph

944examination is administered, to assess an applicant's moral character.

95310. In assessing an applicant's character, the County is bound by the

965provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides:

974The unlawful use of any of the

981controlled substances enumerated in Rule

98611B-27.00225 by an applicant for

991certification, employment, or appointment at

996any time proximate to such application for

1003certification, employment, or appointment

1007conclusively establishes that the applicant

1012is not of good moral character as required

1020by Section 943.13(7). The unlawful use of

1027any of the controlled substances enumerated

1033in Rule 11B-27.00225 by an applicant at any

1041time remote from and not proximate to such

1049application may or may not conclusively

1055establish that the applicant is not of good

1063moral character, as required by Section

1069943.13(7), depending upon the type of

1075controlled substance used, the frequency of

1081use, and the age of the applicant at the

1090time of use. Nothing herein is intended,

1097however, to restrict the construction of

1103Section 943.13(7), only to such controlled

1109substance use.

1111The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates,

1120cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and

1127methaqualone.

112811. Under the provisions of rule 11B-27.0011(2), the use of a controlled

1140substance does not conclusively establish that an applicant lacks the good moral

1152character necessary for certification unless such use was "proximate" to his

1163application. The Commission has not defined the term "proximate," and offered

1174no proof at hearing as to what it considers "proximate" usage within the meaning

1188of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state

1199have been left with no definitive guideline from the Commission, and have

1211adopted various standards. Pertinent to this case, Dade County has adopted a

1223term of one year as the standard by which it gauges the "proximate" use of a

1239controlled substance to an application for employment. Under such policy, an

1250applicant who has refrained from such use for at least one year preceding

1263application will not be automatically rejected as lacking good moral character.

1274Rather, the applicant's entire background will be evaluated to determine whether

1285he currently possesses the requisite moral character for employment. 4/

129512. Pertinent to this case, the County undertook a pre-employment

1305interview of Tabaoado on January 31, 1984, at which time he admitted to having

1319used cocaine approximately eight times, the last time being in 1980, and to

1332having used marijuana a few times, the last time being in June of 1983.

1346Thereafter, on September 11, 1984, Tabaoado was employed by the County as a

1359correctional officer, and served satisfactorily until 1986.

136613. On December 14, 1986, evidence that Tabaoado had a substance abuse

1378problem surfaced. On that date, Tabaoado telephoned his former supervisor,

1388Lieutenant Lois Spears, a confidante, and advised her that he had been using

1401drugs and did not think he could work that night. Lt. Spears advised Tabaoado

1415not to report for work that evening, but to report the next morning to the

1430administrative offices. The following day, Tabaoado met with Lt. Spears and

1441Ervie Wright, the director of the Department's program services, which include

1452employee counseling. At that time, Tabaoado conceded that he had been abusing

1464cocaine, and Mr. Wright recommended that he seek assistance for his problem.

147614. On January 5, 1987, the County terminated Tabaoado's employment as a

1488correctional officer for failure to maintain a drug-free life-style.

149715. On October 19, 1987, following Tabaoado's attendance at a drug

1508rehabilitation program, the County re-employed him as a correctional officer.

1518To date, Tabaoado has been so employed for approximately one and one-half years

1531without incident, and his performance has been above satisfactory. By those who

1543know of him, he is considered an excellent employee, observant of the rules, and

1557of good moral character.

156116. Recently, on January 20, 1989, Tabaoado married Olfuine Tabaoado, who

1572has been a correctional officer with the County for almost three years.

1584According to Ms. Tabaoado, she has never known him to use drugs during the one-

1599year period that she has known him, and Tabaoado has proven to be a good father

1615to her son from a previous marriage.

162217. While Tabaoado may have abstained from the use of drugs since his re-

1636employment with the County, or even since January of 1987, the proof is not

1650compelling in this regard. Rather, the proof demonstrates that Tabaoado's use

1661of drugs, at least of cocaine, was frequent and protracted. Here, Tabaoado,

1673born September 2, 1960, to the extent that he would admit it, used cocaine 8

1688times until 1980 and marijuana a "few times" until 1983. Thereafter, following

1700his initial employment by the County as a correctional officer, he used cocaine

1713to such an extent that by December 14, 1986, he was unable to perform his job

1729and was in need of professional help to address his drug abuse. Such frequent

1743and protracted use on his part does not evidence the requisite good moral

1756character necessary for certification as a correctional officer.

176418. Here, Tabaoado chose not to testify at hearing, and there is no

1777competent or persuasive proof to demonstrate that he successfully completed the

1788drug rehabilitation program; when, if ever, he ceased using cocaine; whether he

1800now has an appreciation of the impropriety of his conduct; or whether he can

1814reasonably be expected to avoid such conduct in the future. Notably, on October

18275, 1987, prior to his re-employment, Tabaoado underwent another pre-employment

1837interview. At that time, Tabaoado told the interviewer, who had also conducted

1849his first interview, that he had not used any drugs since his last interview on

1864January 31, 1984. Such response was patently false, since he had abused cocaine

1877at least as recently as December 1986.

188419. Considering the totality of the circumstances, it is concluded that

1895Tabaoado has failed to demonstrate that he currently possesses the requisite

1906good moral character for certification as a correctional officer.

1915CONCLUSIONS OF LAW

191820. The Division of Administrative Hearings has jurisdiction over the

1928parties to, and the subject matter of, these proceedings.

193721. The ultimate burden of persuasion as to whether an application for

1949certification as a correctional officer should be approved rests with the

1960applicant. See Rule 28-6.08(3), Florida Administrative Code, and Florida

1969Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981).

198222. Section 943.13, Florida Statutes, establishes the minimum

1990qualifications for certification, employment or appointment of a correctional

1999officer. Pertinent to this case, that section provides:

2007(7) Have a good moral character....

201323. For purposes of assessing an applicant's good moral character, the

2024Commission has adopted Rule 11B-27.0011, Florida Administrative Code, which

2033provides:

2034(2) The unlawful use of any of the

2042controlled substances enumerated in Rule

204711B-27.00225 by an applicant for

2052certification, employment, or appointment at

2057any time proximate to such application for

2064certification, employment, or appointment

2068conclusively establishes that the applicant

2073is not of good moral character as required

2081by Section 943.13(7). The unlawful use of

2088any of the controlled substances enumerated

2094in Rule 11B-27.00225 by an applicant at any

2102time remote from and not proximate to such

2110application may or may not conclusively

2116establish that the applicant is not of good

2124moral character, as required by Section

2130943.13(7), depending upon the type of

2136controlled substance used, the frequency of

2142use, and the age of the applicant at the

2151time of use. Nothing herein is intended,

2158however, to restrict the construction of

2164Section 943.13(7) only to such controlled

2170substance use.

2172The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates,

2181cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and

2188methaqualone.

218924. Apart from rule 11B-27.0011, the Commission has adopted no rule that

2201establishes the standards by which the good moral character of an applicant are

2214to be assessed. Existent case law does, however, provide some guidance.

222525. Where, as here, the offending conduct is not of itself a disqualifier

2238to licensure, the courts have long recognized that what constitutes good moral

2250character is a matter to be developed by the facts. 5/ Zemour, Inc. v. Division

2265of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977) and White v. Beary, 237 So.2d

2280263 (Fla. 1st DCA 1970). In Zemour, Inc. v. Division of Beverages, supra, at

2294page 1105, the court concluded:

2299Moral character . . . means not only the

2308ability to distinguish between right and

2314wrong, but the character to observe the

2321difference; the observance of the rules of

2328right conduct, and conduct which indicates

2334and establishes the qualities generally

2339acceptable to the populace for positions of

2346trust and confidence. An isolated unlawful

2352act [that does not by statute or rule

2360specifically disqualify a person from

2365licensure] or acts of indiscretion wherever

2371committed do not necessarily establish bad

2377moral character. But repeated acts in

2383violation of law wherever committed and

2389generally condemned by law abiding people,

2395over a long period of time, evinces the sort

2404of mind and establishes the sort of

2411character that should not be entrusted

2417with a . . . license.

2423And, in Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla.

24371987), the court concluded:

2441. . . a finding of a lack of "good moral

2452character" should not be restricted to those

2459acts that reflect moral turpitude. A more

2466appropriate definition of the phrase

2471requires an inclusion of acts and conduct

2478which would cause a reasonable man to have

2486substantial doubts about an individual's

2491honesty, fairness, and respect for the

2497rights of others and for the laws of the

2506state and nation.

250926. Here, Tabaoado has failed to demonstrate, as required by law, that he

2522possesses the requisite good moral character for employment and certification as

2533a correctional officer.

2536RECOMMENDATION

2537Based on the foregoing findings of fact and conclusions of law, it is

2550RECOMMENDED that the application of petitioner, Esteban Tabaoado, for

2559certification as a correctional officer be DENIED.

2566DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th of June

25781989.

2579___________________________________

2580WILLIAM J. KENDRICK

2583Hearing Officer

2585Division of Administrative Hearings

2589The DeSoto Building

25921230 Apalachee Parkway

2595Tallahassee, Florida 32399-1550

2598(904) 488-9675

2600Filed with the Clerk of the

2606Division of Administrative Hearings

2610this 28th day of June 1989.

2616ENDNOTES

26171/ The application of petitioner for certification as a correctional officer was

2629but one of thirty-seven applications that were scheduled to be heard commencing

2641on April 3, 1989. At that time, perceiving that the testimony of certain

2654witnesses would be common to most applicants, the parties agreed to develop a

2667generic record that would, pertinent to this case, be utilized in addition to

2680the proof offered individually on behalf of the petitioner.

26892/ Variously, some files contained the original registration and original

2699affidavit of compliance that must be submitted to the Commission for

2710certification, some files were totally missing registrations and affidavits of

2720compliance, and some files were missing birth certificates, fingerprint cards

2730and other documentation required for certification. Overall, none of the files

2741contained the documentation required by law for certification.

27493/ At hearing, petitioner produced two affidavits of compliance executed by

2760Fred Crawford, one dated September 2, 1988, and one dated September 9, 1988, as

2774well as an affidavit of applicant dated August 18, 1988. There was no proof

2788that any other affidavits had previously been executed and no persuasive proof

2800that any application had previously been filed on behalf of Tabaoado.

28114/ Commission of offenses, unless they result in a felony conviction or a

2824misdemeanor conviction involving perjury or false statement, do not bar

2834employment or certification as a correctional officer, unless they demonstrate

2844bad moral character. Section 943.13, Florida Statutes. Consistent with

2853existent law, and the past practices of the Commission, the County does not

2866automatically reject an applicant who has been convicted of a misdemeanor that

2878does not involve perjury or false statement, or who has committed an offense

2891that did not result in a felony conviction, but evaluates the applicant's entire

2904background to determine whether the applicant currently possesses the requisite

2914moral character for employment.

29185/ Pertinent to this case, the only specified disqualifer to licensure is

2930Section 943.13, Florida Statutes, which provides:

2936On or after October 1, 1984, any person

2944employed or appointed as a correctional

2950officer . . . shall:

2955* * *

2958(4) Not have been convicted of any

2965felony or of a misdemeanor involving perjury

2972or a false statement . . . Any person who, after

2983July 1, 1981, pleads guilty or nolo

2990contendere to or is found guilty of any

2998felony or of a misdemeanor involving perjury

3005or a false statement is not eligible for

3013employment or appointment as an officer,

3019notwithstanding suspension of sentence or

3024withholding of adjudication.

3027APPENDIX

3028The proposed findings of fact submitted on behalf of petitioner,

3038individually, are addressed as follows:

30431-2. Addressed in paragraph 6 and footnote 3.

30513-4. Addressed in paragraphs 7 and 8 to the extent pertinent.

30625-7. Addressed in paragraph 12.

30678. Addressed in paragraph 17.

30729-10. Addressed in paragraph 12, otherwise rejected as subordinate.

308111. Addressed in paragraph 15, otherwise rejected as subordinate.

309012-17. Addressed in paragraph 13. Otherwise rejected as subordinate.

309918. Addressed in paragraph 15, otherwise rejected as subordinate.

310819. Not shown to be relevant to petitioner's use of drugs or otherwise to his

3123moral character.

312520. Not relevant.

312821-22. Addressed in paragraph 15, otherwise rejected as subordinate.

313723-27. To the extent pertinent, addressed in paragraph 13, otherwise rejected

3148as subordinate.

315028-32. To the extent pertinent, addressed in paragraph 14, otherwise rejected

3161as irrelevant or subordinate.

316533-41. Addressed in paragraph 15, otherwise rejected as subordinate.

317442-44. Addressed in paragraph 16.

317945-47. Addressed in paragraph 15, otherwise rejected as subordinate.

3188The proposed findings of fact submitted for petitioner on the generic

3199record are addressed as follows:

32041-14. Rejected as recitation of witness testimony, and not findings of fact.

3216The matters have, however, been addressed in paragraphs 9-11, and footnote 4.

322815, 16, 18-20. Addressed in paragraphs 1-4 and footnotes 2 and 3.

324017, 29, and 30. Addressed in footnote 3.

324821. Addressed in paragraph 6, otherwise rejected as unnecessary to the result

3260reached or a legal conclusion.

326522-27. Addressed in paragraphs 2-4, and footnote 3. Otherwise rejected as

3276subordinate to the conclusion reached.

328128. Rejected as misleading and not supported by competent proof. The

3292Commission does verify at the employing agency that the documentation required

3303by section 943.13 (1)-(8) and Section 943.131, Florida Statutes, is being

3314maintained. However, such inspection does not occur until an application for

3325certification has been filed with the Commission. Where, as here, no

3336application has been filed, the Commission has no knowledge of an individual's

3348employment and, therefore, no opportunity or responsibility to verify any

3358documentation. It is the employing agency's responsibility to apprise the

3368Commission of any change of employment so that it can properly verify

3380documentation. Dade County failed to discharge its responsibilities.

338831-36. Addressed in paragraph 2 and footnote 3, otherwise rejected as

3399subordinate.

3400The proposed findings of fact filed on behalf of respondent are addressed

3412as follows:

34141-2. Addressed in paragraphs 6 and 7.

34213-4. Addressed in paragraphs 1, 2, 5, 6 and footnote 3.

34325-7. Addressed in paragraph 12.

34378-13. Addressed in paragraph 13.

344214. Not relevant.

344515-16. Addressed in paragraph 14.

345017. Addressed in paragraph 15.

345518. Addressed in paragraph 17.

3460Intervenor did not submit proposed findings of fact but did submit a post

3473hearing brief. Accordingly, while intervenor's brief has been considered, there

3483are no proposed findings of fact to address on behalf of intervenor.

3495COPIES FURNISHED:

3497James C. Casey, Esquire

3501Dade County Police

3504Benevolent Association

350610680 N.W. 25th Street

3510Miami, Florida 33172

3513Joseph S. White, Esquire

3517Florida Department of Law

3521Enforcement

3522Post Office Box 1489

3526Tallahassee, Florida 32302

3529Lee Kraftchick, Esquire

3532Assistant County Attorney

3535Metro Dade Center

3538Ill N.W. 1st Street

3542Suite 2810

3544Miami, Florida 33128

3547Jeffrey Long, Director

3550Criminal Justice Standards

3553and Training Commission

3556Post Office Box 1489

3560Tallahassee, Florida 32302

3563Daryl McLaughlin

3565Executive Director

3567Florida Department of Law

3571Enforcement

3572Post Office Box 1489

3576Tallahassee, Florida 32302

3579Rodney Gaddy

3581General Counsel

3583Florida Department of Law

3587Enforcement

3588Post Office Box 1489

3592Tallahassee, Florida 32302

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Date
Proceedings
PDF:
Date: 08/18/1989
Proceedings: Agency Final Order
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Date: 08/18/1989
Proceedings: Recommended Order
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Date: 06/28/1989
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
WILLIAM J. KENDRICK
Date Filed:
12/28/1988
Date Assignment:
01/04/1989
Last Docket Entry:
06/28/1989
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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