88-006432 Leon Lewis vs. Department Of Law Enforcement Status: Closed Recommended Order on Tuesday, June 20, 1989.

Summary: Applicant for certification as a correctional officer demonstrated requisite good moral character notwithstanding previous use of marijuana when a minor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEON LEWIS, )

)

Petitioner, )

and )

)

METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE No. 88-6432

)

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL )

JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

above-styled case on April 7, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Denis A. Dean, Esquire

Dean and Hartman, P.A.

10680 Northwest 25th Street

Suite 200

Miami, Florida 33172

For Respondent: Joseph S. White, Esquire

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Intervenor: Lee Kraftchick, Esquire

Assistant County Attorney

Metro Dade Center

111 Northwest 1st Street

Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner possesses the requisite

good moral character for certification as a correctional officer.

PRELIMINARY STATEMENT

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

offered at the hearing held on April 7, 1989, as well as the generic record

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

on April 7, 1989, petitioner testified on his own behalf. Petitioner's exhibit

1 was received into evidence. Respondent called no witnesses, but its exhibit 1

was received into evidence. The generic record developed during the course of

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

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

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

exhibit 1. 1/

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

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

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

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

after the transcript is filed. Rule 22I-6.31, Florida Administrative Code. The

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

recommended order.

FINDINGS OF FACT

Background

1. 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.

2. 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/

3. 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.

4. 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

5. Petitioner, Leon Lewis (Lewis), has been employed by the County as a

correctional officer since September 1985 without benefit of certification.

6. On August 10, 1988, as a consequence of the aforementioned audit, the

County, as the employing agency, applied for certification on behalf of Lewis.

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 Lewis 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.

7. By letter dated November 7, 1988, the Commission notified Lewis and the

County that his application for certification as a correctional officer was

denied for lack of good moral character because:

You actually and intentionally struck Edward

Thornton against the will of the said Edward

Thornton.

You have unlawfully and knowingly possessed

and introduced into your body cannabis.

8. Following receipt of the Commission's letter of denial, Lewis filed a

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

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

the requisite good moral character necessary for certification.

Good moral character

9. 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.

10. 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.

11. Pertinent to an assessment of Lewis' moral character, the proof

demonstrates that the County undertook a pre-employment interview of Lewis on

April 20, 1984, at which time he admitted to having "tried marijuana one time,

four years ago." At the time of use, Lewis was 17 years of age and a high school

student; he has not otherwise experimented with controlled substances. The

proof also demonstrates that in October 1982, Lewis struck one Edward Thornton

on the head with an umbrella. The circumstances surrounding such blow being

struck demonstrate that, following a high school football game, Thornton was

harassing Lewis' girlfriend when she, crying, sought Lewis out. At that time,

Thornton and a number of his friends confronted Lewis and his girlfriend.

Reasonably fearing an attack, Lewis grabbed an umbrella and exclaimed "Before

you hit me, I'm going to have to get one of you," and struck Thornton on the

head. Other than a cut to the head, there is no proof that Thornton suffered

any significant injury. While Lewis was arrested as a consequence of the

incident, the matter was subsequently dismissed and the record expunged.

12. Notwithstanding the County's conclusion, based on its investigation

and analysis of Lewis' background, that Lewis possessed the requisite good moral

character for employment and certification, the Commission proposed to deny

certification based on the two isolated incidents, heretofore discussed, in

Lewis' life. The Commission's action is unwarranted.

13. Here, Lewis, born February 25, 1963, used marijuana one time, nine

years ago, when he 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. Likewise, the

isolated incident of striking Thornton over the head with an umbrella when Lewis

was 19 years of age was hardly proximate to his employment, or this

consideration of his application for certification, and does not, under the

circumstances presented, evidence bad moral character. 4/

14. To date, Lewis has been employed by the County as a correctional

officer, a position of trust and confidence, for over three and one-half years.

There is no suggestion that he has committed any act or offense that would

reflect adversely on his moral character during the term of such employment.

15. Overall, Lewis 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.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

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

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

certification as a correctional officer should be approved rests with the

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

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

18. Section 943.13, Florida Statutes, establishes the minimum

qualifications for certification, employment or appointment of a correctional

officer. Pertinent to this case, that section provides:

(7) Have a good moral character...

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

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

provides:

(2) 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.

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

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

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

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

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

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

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

237 So.2d 263 (Fla. 1st DCA 1970). In Zemour, Inc. v. Division of Beverages,

supra, at page 1105, the court concluded:

Moral character... means not only the

ability to distinguish between right and

wrong, but the character to observe the

difference; the observance of the rules of

right conduct, and conduct which indicates

and establishes the qualities generally

acceptable to the populace for positions of

trust and confidence. An isolated unlawful

act [that does not by statute or rule

specifically disqualify a person from

licensure] or acts of indiscretion wherever

committed do not necessarily establish bad

moral character. But...repeated acts in

violation of law wherever committed and

generally condemned by law abiding people,

over a long period of time, evinces the sort

of mind and establishes the sort of

character that...should not be entrusted

with a...license.

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

1987), the court concluded:

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

character" should not be restricted to those

acts that reflect moral turpitude. A more

appropriate definition of the phrase

requires an inclusion of acts and conduct

which would cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and respect for the

rights of others and for the laws of the

state and nation.

22. Here, Lewis has demonstrated, as required by law, that he possesses

the requisite good moral character for employment and certification as a

correctional officer, and the isolated events that occurred during his youth do

not detract from such showing.

RECOMMENDATION

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

RECOMMENDED that the application of petitioner, Leon Lewis, 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

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of June, 1989.

ENDNOTES

1/ The application of petitioner for certification as a correctional officer

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

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

certain witnesses would be common to most applicants, the parties agreed to

develop a generic record that would, pertinent to this case, be utilized in

addition to the proof offered individually on behalf of the petitioner.

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

affidavit of compliance that must be submitted to the Commission for

certification, some files were totally missing registrations and affidavits of

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

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

contained the documentation required by law for certification.

3/ When the personnel file of Lewis was audited on August 10, 1988, a copy of

an affidavit of compliance executed by Fred Crawford on October 23, 1985, as

well as an affidavit of applicant bearing the same date, was located. Due to

the passage of time since the first affidavit of compliance had been executed,

the Commission insisted that a new affidavit of compliance be prepared to

accompany the application. At hearing, Lewis contended that the existence of

such documentation in his file supported the conclusion that an earlier

application had been submitted to the Commission which, because of inaction, had

been approved pursuant to Section 120.60(2), Florida Statutes. The proof fails,

however, to support the conclusion that any application, other than that of

August 10, 1988, was submitted to the Commission on behalf of Lewis. Notable to

this conclusion is the disorganization of the County's records, and the lack of

reliability in its personnel practices. Here, the Commission provided the

County with semi-annual reports from 1985 through 1988, which listed each

officer its records showed employed by the County. The County, under existing

law, was charged with the responsibility of reviewing such reports and advising

the Commission of any changes that had occurred. The County failed to do so at

any time between 1985 and 1988.

As additional support for his contention that an earlier application was

submitted to the Commission, petitioner contended that the County routinely

mailed applications in bulk upon completion of each academy class, and that such

routine practice supports the conclusion that petitioner's application was

previously submitted. Such contention is rejected in this case since the

County's personnel practices do not possess the necessary reliability to render

such proof persuasive and because there was no showing that any member of

petitioner's class had been certified.

4/ Under the provisions of Rule 11B-27.0011(2), the use of a controlled

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

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

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

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

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

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

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

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

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

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

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

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

he currently possesses the requisite moral character for employment.

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

misdemeanor conviction involving perjury or false statement, do not bar

employment or certification as a correctional officer, unless they demonstrate

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

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

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

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

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

background to determine whether the applicant currently possesses the requisite

moral character for employment.

5/ Pertinent to this case, the only specified disqualifier to licensure is

Section 943.13, Florida Statutes, which provides:

On or after October 1, 1984, any person

employed or appointed as a...correctional

officer...shall:

* * *

(4) Not have been convicted of any

felony or of a misdemeanor involving perjury

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

July 1, 1981, pleads guilty or nolo

contendere to or is found guilty of any

felony or of a misdemeanor involving perjury

or a false statement is not eligible for

employment or appointment as an officer,

notwithstanding suspension of sentence or

withholding of adjudication.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-6432

The proposed findings of fact submitted on behalf of petitioner,

individually, are addressed as follows:

1. Addressed in paragraph 6 and footnote 3.

2. Addressed in paragraph 7.

3. Addressed in paragraph 8.

4. Rejected as not necessary to the result reached.

5-6. Addressed in paragraph 11.

7. Addressed in paragraphs 11 and 14.

The proposed findings of fact submitted for petitioner on the generic

record are addressed as follows:

1-14. Rejected as recitation of witness testimony, and

not findings of fact. The matters have,

however, been addressed in paragraphs 9-11, and

footnote 4.

15, 16, 18-20. Addressed in paragraphs 1-4 and footnotes 2

and 3.

17, 29, and 30. Addressed in footnote 3.

21. Addressed in paragraph 6, otherwise rejected as

unnecessary to the result reached or a legal

conclusion.

22-27. Addressed in paragraphs 2-4, and footnote 3.

Otherwise rejected as subordinate to the

conclusion reached.

28. Rejected as misleading and not supported by

competent proof. The Commission does verify at

the employing agency that the documentation

required by Section 943.13(1)-(8) and Section

943.131, Florida Statutes, is being maintained.

However, such inspection does not occur until an

application for certification has been filed with

the Commission. Where, as here, no application

has been filed, the Commission has no knowledge

of an individual's employment and, therefore, no

opportunity or responsibility to verify any

documentation. It is the employing agency's

responsibility to apprise the Commission of any

change of employment so that it can properly

verify documentation. Dade County failed to

discharge its responsibilities.

31-36. Addressed in paragraph 2 and footnote 3,

otherwise rejected as subordinate.

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

as follows:

1-2. Addressed in paragraphs 6 and 7.

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

3.

5-6. and 8-12. Addressed in paragraph 11.

7. Addressed in paragraph 13.

13. Addressed in paragraphs 5.

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

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

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

COPIES FURNISHED:

Denis A. Dean, Esquire

Dean and Hartman, P.A.

10680 Northwest 25th Street

Suite 200

Miami, Florida 33172

Joseph S. White, Esquire

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Lee Kraftchick, Esquire

Assistant County Attorney

Metro Dade Center

111 Northwest 1st Street

Suite 2810

Miami, Florida 33128

Jeffrey Long, Director

Criminal Justice Standards

and Training Commission

Post Office Box 1489

Tallahassee, Florida 32302

Daryl McLaughlin

Executive Director

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302