88-006434 Leonard J. Mcmullen vs. Department Of Law Enforcement Status: Closed Recommended Order on Tuesday, June 20, 1989.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD McMULLEN, )

)

Petitioner, )

and )

)

METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 88-6434

)

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: Douglas C. Hartman, Esquire

Dean and Hartman, P.A.

10680 N.W. 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 N.W. 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, and called John James

as a witness. Petitioner's exhibits 1-2 were 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, Leonard McMullen (McMullen), has been employed by the

County as a correctional officer since June 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

McMullen. 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 McMullen 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 McMullen and

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

denied for lack of good moral character because:

You have unlawfully and knowingly possessed

and introduced into your body cannabis.

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

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

Statutes. In his request for hearing, McMullen 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 preemployment 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 this case, the County undertook a pre-employment

interview of McMullen on March 8, 1985, at which time he admitted limited use of

marijuana some 9 years previously. Here, the proof demonstrates that McMullen's

use of marijuana was indeed limited, probably numbering little more than twice,

and that his use occurred during high school, when he was 17 or 18 years of age.

Since that time, McMullen has not used any controlled substances.

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

and analysis of McMullen's background, that McMullen possessed the requisite

good moral character for employment and certification, the Commission proposed

to deny certification based on his isolated use of marijuana over 13 years ago.

The Commission's action is unwarranted.

13. Here, McMullen, born January 7, 1958, used marijuana approximately two

times, the last time being over 13 years ago when he was 17 or 18 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. 4/

14. Following his graduation from high school, McMullen joined the U.S.

Army, where he served honorably for three years as a military policeman. He

enjoyed a secret security clearance, and his periodic drug screenings met with

negative results. Following his discharge from the service, McMullen was

employed for a few months by Gulf Life Insurance Company, and then by Florida

Power & Light Company until he was employed by the County.

15. To date, McMullen has been employed by the County as a corrections

officer, a position of trust and confidence, for approximately four years, and

was recently promoted to the rank of corporal. His annual evaluations have been

above satisfactory, and his periodic drug screenings have all met with negative

results. By those who know of him, he is considered an excellent employee,

observant of the rules, honest, fair and respectful of the rights of others.

16. Overall, McMullen 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

17. The Division of Administrative Hearings has jurisdiction over the

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

18. 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).

19. 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...

20. 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.

21. 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.

22. 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.

23. Here, McMullen has demonstrated, as required by law, that he possesses

the requisite good moral character for employment and certification as a

correctional officer, and his isolated use of marijuana some 13 years ago does

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, Leonard McMullen, 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 McMullen was audited on August 10, 1988, a copy

of an affidavit of applicant executed by McMullen on June 24, 1985, was located.

There was, however, no affidavit of compliance, or even a copy of an affidavit

of compliance, located in his file. At hearing, McMullen 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

McMullen. Notable to this conclusion is the lack of a copy of an affidavit of

compliance in his file, 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 possess 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 disqualifer 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

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.

7-9. Addressed in paragraphs 14 and 15. The proposed findings of fact

submitted for petitioner on the 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. Addressed in paragraph 11.

7. Addressed in paragraph 5.

8. Addressed in paragraph 13.

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:

Douglas C. Hartman, Esquire

Dean and Hartman, P.A.

10680 N.W. 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 N.W. 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

Rodney Gaddy

General Counsel

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302