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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-2127PL

)

LEONARDO MARTINEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

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

on August 18, 2009, in Lakeland, Florida.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Leonardo Martinez, pro se

STATEMENT OF THE ISSUE

Whether Respondent's conduct evidenced lack of "good moral

character" as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

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

Enforcement, Criminal Justice Standards and Training Commission,

filed an Administrative Complaint alleging that on July 13,

2007, Respondent, Leonardo Martinez, "did unlawfully handle,

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

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

further, alleging that this conduct evidenced lack of "good

moral character" so as to warrant disciplining Respondent's

certifications as a correctional and law enforcement officer.

Respondent disputed the allegations of fact contained in

the Administrative Complaint and requested a formal hearing

before an Administrative Law Judge.

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

Petitioner to the Division of Administrative Hearings requesting

that the matter be assigned to an Administrative Law Judge for

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

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

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

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

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

August 18, 2009.

The final hearing took place as rescheduled. Petitioner

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

Petitioner offered four exhibits that were received into

evidence and marked Petitioner's Exhibits 1 through 4.

Respondent was present during the initial stage of the hearing

when procedural matters were discussed; however, he elected to

leave the hearing room when Petitioner presented its witnesses.

Respondent did not testify and did not offer any exhibits.

The Transcript of Proceedings was filed with the Division

of Administrative Hearings on September 16, 2009. Petitioner

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

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

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

Order Granting Extension of Time was entered. Respondent did

not file a proposed recommended order.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Respondent has two certifications: Correctional

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

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

2. At the times relevant to the allegations of impropriety

in the Administrative Complaint, Respondent was a law

enforcement officer with the Kissimmee, Florida, Police

Department.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

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

and convincing" evidence that Respondent committed the acts

alleged in the Administrative Complaint. Ferris v. Turlington ,

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

9. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

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

10. Disciplining a professional license, such as a law

enforcement certification, is penal in nature. Statutes that

authorize the imposition of penal sanctions must be strictly

construed and any ambiguity must be construed in favor of

Respondent. Elmariah v. Department of Business and Professional

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

11. Section 943.13, Florida Statutes, establishes the

minimum qualifications for law enforcement officers in Florida.

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

law enforcement officers must:

Have a good moral character as determined by

a background investigation under procedures

established by the commission.

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

Petitioner to specify by rule the definition of "good moral

character" for purposes of implementing the penalties Petitioner

may levy against an officer for violating the "good moral

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

Statutes, after the officer is certified. Subsection

943.1395(7), Florida Statutes, provides that:

(7) Upon a finding by the commission that

a certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by

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

order imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such

terms and conditions, the commission may

revoke certification or impose additional

penalties as enumerated in this subsection.

(d) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

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

defines "good moral character" for purposes of the

implementation of disciplinary action upon Florida law

enforcement and correctional officers. The rule states in

relevant portion:

(4) For the purposes of the Criminal

Justice Standards and Training Commission's

implementation of any of the penalties

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

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

maintain good moral character required by

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

* * *

(a) The perpetration by an officer of an act

that would constitute any felony offense,

whether criminally prosecuted or not.

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

felony, "lewd and lascivious" conduct, as:

(a) A person who:

1. Intentionally touches a person under 16

years of age in a lewd or lascivious manner;

(b) An offender 18 years of age or older

who commits lewd or lascivious conduct

commits a felony of the second degree,

punishable as provided in s. 775.082,

s. 775.083, or s. 775.084.

15. The evidence demonstrates that Respondent,

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

lewd and lascivious manner.

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

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

where the court ruled that evidence of a defendant brushing,

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

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

Washington case, the perpetrator made moaning noises of

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

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

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

him off as he straddled her body.

17. The only evidence in the record clearly shows that

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

manner committing a felony.

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

specifies the recommended penalty for an officer's violation of

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

revocation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent, Leonardo Martinez, be found

guilty of failure to maintain good moral character as required

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

certifications as a correctional and law enforcement officer be

revoked.

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

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of November, 2009.

COPIES FURNISHED :

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Leonardo Martinez

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.