88-006439 Robert Pereira vs. Department Of Law Enforcement Status: Closed Recommended Order on Wednesday, July 5, 1989.

Summary: Strong evidence that correctional officer had good moral character and was entitled to certification wasn't overcome by evidence of remote use of drugs

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT PEREIRA, )

)

Petitioner, )

)

and )

)

METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 88-6439

)

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

designated Hearing Officer, Claude B. Arrington, held a formal hearing in the

above-styled case on April 10, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Donald D. Slesnick, III, Esquire

10680 N.W. 25 Street

Miami, Florida 33172

For Respondent: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 33202

For Intervenor: Lee Kraftchick, Esquire

Assistant County Attorney

in and for Dade County

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 10, 1989, as well as the generic record

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

April 10, 1989, Petitioner testified on his own behalf and called three

additional witnesses. Petitioner introduced 15 documentary exhibits which were

accepted into evidence. Respondent called no witnesses and offered one

documentary exhibit which was received into evidence pursuant to stipulation of

the parties.

A generic record was developed because this case is one of a series of

formal hearings heard on a docked which began April 3, 1989. Certain evidence,

which pertains to this case as well as almost all of the other cases on the

docket, was heard by Hearing Officer William J. Kendrick on April 3 and 4, 1989.

This generic evidence will be considered as part of the record of this case by

stipulation of the parties and by order of Hearing Officer Kendrick. The

generic record consisted of the testimony of two witnesses called by the

Intervenor, the testimony of one witness called by Respondent, and the testimony

of two witnesses called by Petitioner. Documentary evidence was received into

evidence as follows: Hearing Officer's Exhibits 1-38; Respondent's Composite

Exhibit 1, and Petitioner's Exhibit 1. The only documentary exhibit not

accepted into evidence was marked for identification purposes as Intervenor's

Exhibit 1.

Metropolitan Dade County, Intervenor, participated in the presentation of

the generic evidence on April 3 and 4, 1989, and submitted a post hearing brief

in this case, but did not otherwise participate or appear at the formal hearing

on April 10, 1989.

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. Consequently, the parties waived the

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

transcript is filed. Rule 221-6.031, 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, acting on a tip from local

media that intervenor, Metropolitan Dade County, Department of Corrections and

Rehabilitation (Metro Dade Corrections), had in its employ a number of

correctional officers who were not certified, undertook a review of the

employment records of Metro Dade Corrections. As a result of this review,

Respondent identified 363 individuals, including Petitioner, who were employed

by Metro Dade Corrections as correctional officers but who had not been

certified by Respondent.

2. On August 10-11, 1988, personnel employed by Respondent visited the

Metro Dade Corrections personnel office and audited the personnel file

maintained by Metro Dade Corrections of each of the 363 individuals in question,

including Petitioner's personnel file. 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 Metro Dade Corrections

had failed to apply for certification on behalf of the 363 officers.

3. Over the course of their two-day visit, employees of Respondent worked

with employees of Metro Dade Corrections to complete the documentation on each

file. Variously, they prepared registration forms and affidavits of compliance

and assembled other missing documentation, such as birth certificate and

fingerprint cards.

4. The 363 completed applications for certification were returned to

Tallahassee by Respondent for processing. The vast majority of the individuals

were certified; however, Respondent declined, for reasons hereinafter discussed,

to certify Petitioner The pending application

5. Petitioner has been employed by the Metropolitan Dade County Department

of Corrections and Rehabilitation (hereinafter called Metro Dade Corrections) as

a correctional officer since June 24, 1985, without benefit of certification.

6. As part of the pre-employment process, Petitioner submitted to Metro

Dade Corrections an affidavit dated June 24, 1985, which provides in pertinent

part:

I fully understand that, in order to qualify

as a law enforcement or correctional officer,

I must fully comply with the provisions of

Section 943.13, Florida Statutes, as follows:

* * *

7. Be of good moral character.

I further understand that by executing this

document I am attesting that I have met the

qualifications as specified.

8. Metro Dade Corrections, as the employing agency, is responsible for

conducting a thorough background investigation to determine the moral character

of an applicant. Consistent with such mandate, Metro Dade Corrections 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. At the time Petitioner began employment on June

24, 1985, Metro Dade Corrections had completed its investigation into

Petitioner's background and had concluded that Petitioner possessed the good

moral character required for certification.

9. Fred Crawford, the Metro Dade Corrections director, executed an

affidavit of compliance on June 24, 1985, that contained the following sworn

statement:

I hereby certify that I have collected,

verified, and am maintaining on file evidence

that the applicant has met the provisions of

Section 943.13(1)-(8) and Section 943.131,

Florida Statutes, or any rules adopted

pursuant thereto.

10. There is no evidence that a complete application package for

Petitioner's certification was prepared in 1985. Respondent did not receive a

complete application for certification on Petitioner's behalf until August 11,

1988.

11. On August 11, 1988, Metro Dade Corrections, as the employing agency,

submitted to Respondent a complete application package for certification of

Petitioner as a correctional Officer. This was the first application for

certification submitted on Petitioner's behalf.

12. By letter dated November 7, 1988, Respondent notified Petitioner that

his application for certification was denied because Petitioner did not possess

the requisite good moral character for certification as a correctional officer.

Respondent gave the following as its reasons for concluding that Petitioner

lacked good moral character:

You have unlawfully and knowingly possessed

and introduced into your body cannabis.

13. Petitioner used marijuana on one occasion that predated his employment

with Metro Dade Corrections by fourteen years. Petitioner freely admitted the

usage of marijuana on this occasion during his pre-employment processing and

made no attempt to conceal the truth. Petitioner has used no controlled

substance since that one incident.

14. At the time of the hearing, Petitioner was 42 years of age and had

worked as a Correctional Officer since June 24, 1985. Petitioner's job

performance evaluations with Metro Dade Corrections have been satisfactory or

above. Petitioner has received several commendations for his service with Metro

Dade Corrections. Prior to his service with Metro Dade Corrections, Petitioner

served in the U.S. Army with distinction where he had a top secret security

clearance. Petitioner also had a good record as a security officer for the

Veterans Administration.

15. Petitioner's reputation is that he is a dependable, reliable, and

trustworthy individual who possesses high moral character.

16. Following the denial of his request for certification as a

correctional officer on November 7, 1988, Petitioner timely requested a formal

hearing by the election of rights form he filed with Respondent.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes.

18. It is Petitioner's burden to prove that he is entitled to be certified

by Respondent as a correctional officer. Florida Department of Transportation

v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), Irvine v. Duval County

Planning Commission, 466 So.2d 357 (Fla. 1st DCA 1985), Astral Liquors, Inc. v.

Florida Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983).

19. Petitioner is not entitled to automatic certification under Section

120.60(2), Florida Statutes, because there was no proof that a completed

application for certification was submitted on Petitioner'S behalf before August

11, 1988. Respondent's letter dated November 7, 1988, denying Petitioner's

application for certification was within the time parameters set by Section

120.60(2), Florida Statutes.

20. Section 943.13(7), Florida Statutes requires that a correctional

officer:

7) Have a good moral character as determined

by a background investigation under

procedures established by the commission.

21. Rule 11B-27.0011(2), Florida Administrative Code, is as follows:

(2) The unlawful use of any of the

controlled substances enumerated in Rule 11B-

27.0025 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 controlled substances enumerated in Rule 1B-27.00225 are amphetamines,

barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine,

benzodiazepine, and methaqualone.

22. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla.

1st DCA 1977) the court discussed the meaning of moral character as follows:

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. . . .

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

1987), the court discussed the meaning of good moral character as follows:

In our view, 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.

24. The only evidence that might suggest a flaw in Petitioner's moral

character is his admitted use of marijuana on one occasion fourteen years before

he began his employment as a correctional officer in 1985.

25. Under Rule 11B-27.0011(2), Florida Administrative Code, unlawful use

of drugs conclusively establishes than an applicant is not of good moral

character if the unlawful use of drugs is "at a time proximate to" the

application for certification or appointment. "Proximate: is defined as

immediate, nearest or direct in relationship. Black's Law Dictionary, Fifth

Edition, 1979, page 1103. The use of marijuana some 14 years prior to his

employment is not at a time proximate to the employment or the application for

certification and does not conclusively establish that Petitioner is not of good

moral character.

26. The unlawful use of drugs at a time remote from and not proximate to

the application or employment may or may not conclusively establish a lack of

good moral character under Rule 11B-27.0011(2), Florida Administrative Code,

depending on the type of drug used, the frequency of the use, and the age of the

applicant at the time of the use. The use of marijuana on one occasion, 14

years before employment, is too isolated and too remote to base a conclusion

that the Petitioner does not have good moral character.

27. The overwhelming evidence presented by this record is that Petitioner

possesses all the qualifications for certification as a correctional officer,

including the qualification of good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Florida Department of Law Enforcement, Division of

Criminal Justice standards and Training issue a Final Order which approves

Petitioner'S application for certification.

DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County,

Florida.

___________________________________

CLAUDE B. ARRINGTON

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 5th day of July 1989.

APPENDIX

The proposed findings of fact submitted on behalf of petitioner,

individually, are addressed as follows:

1-2. Rejected as unnecessary to the result reached.

3. Addressed in paragraph 12.

4. Addressed in paragraph 12.

5. Rejected as being subordinate to findings of paragraph 12.

6. Addressed in paragraph 6 and 8.

7-8. Rejected as unnecessary to result reached.

9. Addressed in paragraph 13.

10. Rejected as being unnecessary to result reached and as being subordinate to

findings of paragraph 12.

11. Rejected as being unnecessary to result reached.

12-19. Addressed in paragraphs 13 and 14 so far as relevant. Rejected in part

as being subordinate to the findings of paragraphs 13 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 paragraph 7 so far as deemed

necessary to the result reached.

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

17. Rejected as unnecessary to the result reached.

21. Addressed in paragraph 7, otherwise rejected as unnecessary to the result

reached in a legal conclusion.

22-27. Rejected as subordinate to the conclusion reached.

28. Rejected as misleading and not supported by competent proof.

29-36. Rejected as being subordinate to the conclusion reached or not supported

by competent evidence.

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

as follows:

1-2 Addressed in paragraphs 10-d11.

3. Addressed in paragraph 10.

4. Rejected as being unnecessary to result reached.

5-6. Addressed in paragraph 12.

7-8. Addressed in paragraph 13.

COPIES FURNISHED:

Donald D. Slesnick, III, Esquire

10680 Northwest 25th Street

Miami, Florida 33172

Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Lee Kraftchick, Esquire

Assistant County Attorney

in and for Dade County

Metro Dade Center

111 N.W. First Street, Suite 2810

Miami, Florida 33128

Daryl McLaughlin, Executive Director

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, Esquire

Florida Department of Law

Training Commission Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director General Counsel

Criminal Justice Standards

Post Office Box 1489

Tallahassee, Florida 32302