88-006440
Anthony Perrone vs.
Department Of Law Enforcement
Status: Closed
Recommended Order on Wednesday, July 5, 1989.
Recommended Order on Wednesday, July 5, 1989.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ANTHONY PERRONE, )
11)
12Petitioner, )
14and )
16)
17METROPOLITAN DADE COUNTY, )
21)
22Intervenor, )
24)
25vs. ) CASE NO. 88-6440
30)
31FLORIDA DEPARTMENT OF LAW )
36ENFORCEMENT and 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, Claude B. Arrington, held a formal hearing in the
75above-styled case on April 10, 1989, in Miami, Florida.
84APPEARANCES
85For Petitioner: Donald D. Slesnick, III, Esquire
9210680 N.W. 25 Street
96Miami, Florida 33172
99For Respondent: Joseph S. White, Esquire
105Assistant General Counsel
108Florida Department of Law Enforcement
113Post Office Box 1489
117Tallahassee, Florida 33202
120For Intervenor: Lee Kraftchick, Esquire
125Assistant County Attorney, Dade County
130Metro Dade Center
133111 N.W. 1st Street, Suite 2810
139Miami, Florida 33128
142STATEMENT OF THE ISSUES
146At issue in this proceeding is whether Petitioner possesses the requisite
157good moral character for certification as a correctional officer.
166PRELIMINARY STATEMENT
168The record in the instant case consists of the testimony and exhibits
180offered at the hearing held on April 10, 1989, as well as the generic record
195developed during the course of hearing on April 3-4, 1989. At the hearing held
209April 10, 1989, Petitioner testified on his own behalf and called three
221additional witnesses. Petitioner introduced 19 documentary exhibits which were
230accepted into evidence. Respondent called no witnesses and offered one
240documentary exhibit which was received into evidence pursuant to stipulation of
251the parties.
253A generic record was developed because this case his one of a series of
267formal hearings heard on a docked which began April 3, 1989. Certain evidence,
280which pertains to this case as well as almost all of the other cases on the
296docket, was heard by Hearing Officer William J. Kendrick on April 3 and 4, 1989.
311This generic evidence will be considered as part of the record of this case by
326stipulation of the parties and by order of Hearing Officer Kendrick. The
338generic record consisted of the testimony of two witnesses called by the
350Intervenor, the testimony of one witness called by Respondent, and the testimony
362of two witnesses called by Petitioner. Documentary evidence was received into
373evidence as follows: Hearing Officer's Exhibits 1-38; Respondent's Composite
382Exhibit 1, and Petitioner's Exhibit 1. The only documentary exhibit not
393accepted into evidence was marked for identification purposes as Intervenor's
403Exhibit 1.
405Metropolitan Dade County, Intervenor, participated in the presentation of
414the generic evidence on April 3 and 4, 1989, and submitted a post hearing brief
429in this case, but did not otherwise participate or appear at the formal hearing
443on April 10, 1989.
447At the parties' request, a deadline was established for filing proposed
458findings of fact or other post hearing submissions that was more than ten days
472after the filing of the transcript in May. Consequently, the parties waived the
485requirement that a recommended order be rendered within thirty days after the
497transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties'
507proposed findings have been addressed in the appendix to this recommended order.
519FINDINGS OF FACT
522Background
5231. In June 1988, Respondent, Florida Department of Law Enforcement,
533Criminal Justice Standards and Training Commission, acting on a tip from local
545media that intervenor, Metropolitan Dade County, Department of Corrections and
555Rehabilitation (Metro Dade Corrections), had in its employ a number of
566correctional officers who were not certified, undertook a review of the
577employment records of Metro Dade Corrections. As a result of this review,
589Respondent identified 363 individuals, including Petitioner, who were employed
598by Metro Dade Corrections as correctional officers but who had not been
610certified by Respondent.
6132. On August 10-11, 1988, personnel employed by Respondent visited the
624Metro Dade Corrections personnel office and audited the personnel file
634maintained by Metro Dade Corrections of each of the 363 individuals in question,
647including Petitioner's personnel file. The audit demonstrated that the files
657were disorganized, lacking documentation required by Rule 11B-27.002, Florida
666Administrative Code, to apply for certification, and that Metro Dade Corrections
677had failed to apply for certification on behalf of the 363 officers.
6893. Over the course of their two-day visit, employees of Respondent worked
701with employees of Metro Dade Corrections to complete the documentation on each
713file. Variously, they prepared registration forms and affidavits of compliance
723and assembled other missing documentation, such as birth certificate and
733fingerprint cards.
7354. The 363 completed applications for certification were returned to
745Tallahassee by Respondent for processing. The vast majority of the individuals
756were certified; however, Respondent declined, for reasons hereinafter discussed,
765to certify Petitioner.
768The Pending Application
7715. Petitioner has been employed by the Metropolitan Dade County Department
782of Corrections and Rehabilitation (hereinafter called Metro Dade Corrections) as
792a correctional officer since June 9, 1987, without benefit of certification.
8036. As part of the preemployment process, Petitioner submitted to Metro
814Dade Corrections an affidavit dated June 9, 1987, which provides in pertinent
826part:
827I fully understand that, in order to qualify
835as a law enforcement or correctional officer,
842I must fully comply with the provisions of
850Section 943.13, Florida Statutes, as follows:
856* * *
8597. Be of good moral character.
865I further understand that by executing this
872document I am attesting that I have met the
881qualifications as specified...
8847. Metro Dade Corrections, as the employing agency, is responsible for
895conducting a thorough background investigation to determine the moral character
905of an applicant. Consistent with such mandate, Metro Dade Corrections routinely
916uses previous employment data, law enforcement records, credit agency records,
926inquiries of the applicant's neighbors and associates, and a pre-employment
936interview, at which a polygraph examination is administered, to assess an
947applicant's moral character. At the time Petitioner began employment on June 9,
9591987, Metro Dade Corrections had completed its investigation into Petitioner's
969background and had concluded that Petitioner possessed the good moral character
980required for certification.
9838. Fred Crawford, the Metro Dade Corrections director, executed an
993affidavit of compliance on June 9, 1987, that contained the following sworn
1005statement:
1006I hereby certify that I have collected,
1013verified, and am maintaining on file evidence
1020that the applicant has met the provisions of
1028Section 943.13(1)-(8) and Section 943.131,
1033Florida Statutes, or any rules adopted
1039pursuant thereto.
10419. There is no evidence that a complete application package for
1052Petitioner's certification was prepared in 1985. Respondent did not receive a
1063complete application for certification on Petitioner's behalf until August 11,
10731988.
107410. On August 11, 1988, Metro Dade Corrections, as the employing agency,
1086submitted to Respondent a complete application package for certification of
1096Petitioner as a correctional officer. This was the first application for
1107certification submitted on Petitioner's behalf.
111211. By letter dated November 1, 1988, Respondent notified Petitioner that
1123his application for certification was denied because Petitioner did not possess
1134the requisite good moral character for certification as a correctional officer.
1145Respondent gave the following as its reasons for concluding that Petitioner
1156lacked good moral character:
1160You have unlawfully and knowingly possessed
1166and introduced into your body cocaine,
1172cannabis and methaqualone.
117512. Petitioner used one-half of one Quaalude and three lines of cocaine
1187when he was 16 or 17 years of age and still in high school. Petitioner used
1203marijuana no more than 26 times, the last date of use being in July of 1983, at
1220which time Petitioner was 20 years of age. Petitioner freely admitted this
1232prior drug usage during his pre-employment processing and made no attempt to
1244conceal the truth. Petitioner has used no controlled substance since July of
12561983.
125713. At the time of the hearing, Petitioner was 25 years of age and had
1272worked as a Correctional Officer for 1 1/2 years. His job performance
1284evaluations have been satisfactory and above.
129014. Petitioner's reputation is that he is a dependable, reliable, and
1301trustworthy individual who possesses high moral character. Petitioner's
1309superiors value him highly as an employee.
131614. Following the denial of his request for certification as a
1327correctional officer on November 1, 1988, Petitioner timely requested a formal
1338hearing by the election of rights form he filed with Respondent.
1349CONCLUSIONS OF LAW
135215. The Division of Administrative Hearings has jurisdiction over the
1362subject matter of and the parties to this proceeding. Section 120.57(1),
1373Florida Statutes.
137516. It is Petitioner's burden to prove that he is entitled to be certified
1389by Respondent as a correctional officer. Florida Department of Transportation v.
1400J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), Irvine v. Duval County
1413Planning Commission, 466 So.2d 357 (Fla. 1st DCA 1985), Astral Liquors, Inc. v.
1426Florida Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983).
143817. Petitioner is not entitled to automatic certification under Section
1448120.60(2), Florida Statutes, because there was no proof that a completed
1459application for certification was submitted on Petitioner's behalf before August
146910, 1988. Respondent's letter dated November 1, 1988, denying Petitioner's
1479application for certification was within the time parameters set by Section
1490120.60(2), Florida Statutes.
149318. Section 943.13(7), Florida Statutes requires that a correctional
1502officer:
15037) Have a good moral character as determined
1511by a background investigation under
1516procedures established by the commission.
152119. Rule 11B-27.0011(2), Florida Administrative Code, is as follows:
1530(2) The unlawful use of any of the
1538controlled substances enumerated in Rule 11B-
154427.0025 by an applicant for certification,
1550employment, or appointment at any time
1556proximate to such application for
1561certification, employment, or appointment
1565conclusively establishes that the applicant
1570is not of good moral character as required by
1579Section 943.13(7). The unlawful use of any
1586of the controlled substances enumerated in
1592Rule 11B-27.00225 by an applicant at any time
1600remote from and not proximate to such
1607application may or may not conclusively
1613establish that the applicant is not of good
1621moral character, as required by Section
1627943.13(7), depending upon the type of
1633controlled substance used, the frequency of
1639use, and the age of the applicant at the time
1649of use. Nothing herein is intended, however,
1656to restrict the construction of Section
1662943.13(7) only to such controlled substance
1668use.
1669The controlled substances enumerated in Rule 11B-27.00225 are amphetamines,
1678barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine,
1684benzodiazepine, and methaqualone.
168720. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla.
17001st DCA 1977) the court discussed the meaning of moral character as follows:
1713Moral character ... means not only the
1720ability to distinguish between right and
1726wrong, but the character to observe the
1733difference; the observance of the rule of
1740right conduct, and conduct which indicates and
1747establishes the qualities generally
1751acceptable to the populace for positions of
1758trust and confidence.
176121. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla.
17751987), the court discussed the meaning of good moral character as follows:
1787In our view, a finding of a lack of "good
1797moral character" should not be restricted to
1804those acts that reflect moral turpitude. A
1811more appropriate definition of the phrase
1817requires an inclusion of acts and conduct
1824which would cause a reasonable man to have
1832substantial doubts about an individual's
1837honesty, fairness, and respect for the rights
1844of others and for the laws of the state and
1854nation.
185522. The only evidence that might suggest a flaw in Petitioner's moral
1867character is his admitted use of drugs which ended approximately four years
1879before he began his employment as a correctional officer in 1987.
189023. Under Rule 11B-27.0011(2), Florida Administrative Code, unlawful use
1899of drugs conclusively establishes than an applicant is not of good moral
1911character if the unlawful use of drugs is "at a time proximate to" the
1925application for certification or appointment. "Proximate" is defined as
1934immediate, nearest or direct in relationship. Black's Law Dictionary, Fifth
1944Edition, 1979, page 1103. The use of drugs some 4 years prior to his employment
1959is not at a time proximate to the employment or the application for
1972certification and does not conclusively establish that Petitioner is not of good
1984moral character.
198624. The unlawful use of drugs at a time remote from and not proximate to
2001the application or employment may or may not conclusively establish a lack of
2014good moral character under Rule 11B-27.0011(2), Florida Administrative Code,
2023depending on the type of drug used, the frequency of the use, and the age of the
2040applicant at the time of the use. The use of the drugs by Petitioner was too
2056isolated and too remote to base a conclusion that the Petitioner does not have
2070good moral character. This is particularly true in view of the very strong
2083evidence of Petitioner's good moral character.
208925. The overwhelming evidence presented by this record is that Petitioner
2100possesses all the qualifications for certification as a correctional officer,
2110including the qualification of good moral character.
2117RECOMMENDATION
2118Based on the foregoing Findings of Fact and Conclusions of Law, it is:
2131RECOMMENDED that the Florida Department of Law Enforcement, Division of
2141Criminal Justice standards and Training Issue a Final Order which approves
2152Petitioner's application for certification.
2156DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County,
2169Florida.
2170_________________________________
2171CLAUDE B. ARRINGTON
2174Hearing Officer
2176Division of Administrative Hearings
2180The DeSoto Building
21831230 Apalachee Parkway
2186Tallahassee, FL 32399-1550
2189(904) 488-9675
2191Filed with the Clerk of the
2197Division of Administrative Hearings
2201this 5th day of July, 1989.
2207APPENDIX
2208The proposed findings of fact submitted on behalf of Petitioner,
2218individually, are addressed as follows:
22231-2. Rejected as unnecessary to the result reached.
22313-6. Addressed in paragraph 12. Rejected in part as being subordinate to
2243the conclusion reached.
22467. Addressed in paragraph 6.
22518-9. Rejected as being unnecessary to the conclusion reached.
226010. Addressed in paragraph 10.
226511-20. Rejected as being subordinate to the conclusion reached.
2274The proposed findings of fact submitted for petitioner on the generic record are
2287addressed as follows:
22901-14. Rejected as recitation of witness testimony, and not findings of
2301fact. The matters have, however, been addressed in paragraph 7 so far as deemed
2315necessary to the result reached.
232015, 16, 1-20. Addressed in paragraphs 1-4.
232717. Rejected as unnecessary to the result reached.
233521. Addressed in paragraph 7, otherwise rejected as unnecessary to the
2346result reached in a legal conclusion.
235222-27. Rejected as subordinate to the conclusion reached.
236028. Rejected as misleading and not supported by competent proof.
237029-36. Rejected as being subordinate to the conclusion reached or not
2381supported by competent evidence.
2385The proposed findings of fact submitted on behalf of Respondent are addressed as
2398follows:
23991-2. Addressed in paragraphs 10-11.
24043. Addressed in paragraph 10.
24094-7. Rejected as unnecessary to result reached.
24168. Addressed in paragraph 13.
24219. Rejected as unnecessary to result reached.
242810. Addressed in paragraph 5.
2433COPIES FURNISHED:
2435Donald D. Slesnick, III, Esquire
244010680 Northwest 25th Street
2444Miami, Florida 33172
2447Joseph S. White, Esquire
2451Assistant General Counsel
2454Florida Department of Law
2458Enforcement
2459Post Office Box 1489
2463Tallahassee, Florida 32302
2466Lee Kraftchick, Esquire
2469Assistant County Attorney
2472in and for Dade County
2477Metro Dade Center
2480111 N.W. First Street, Suite 2810
2486Miami, Florida 33123
2489Daryl McLaughlin, Executive Director
2493Florida Department of Thaw
2497Enforcement
2498Post Office Box 1489
2502Tallahassee, Florida 32302
2505Jeffrey Long, Director
2508Criminal Justice standards
2511Training Commission
2513Post Office Box 1489
2517Tallahassee, Florida 32302
2520Rodney Gaddy, Esquire
2523General Counsel
2525Florida Department of law
2529Enforcement
2530Post Office Box 1489
2534Tallahassee, Florida 32302