88-006441 Charles Pino vs. Department Of Law Enforcement Status: Closed Recommended Order on Friday, July 7, 1989.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES PINO, )

)

Petitioner, )

and )

)

METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 88-6441

)

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, 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 two additional

witnesses. Petitioner introduced ten 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 docket 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 22I-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 March 1, 1985, without benefit of certification.

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

Dade Corrections an affidavit dated March 1, 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. ...

7. 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 March

1, 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.

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

affidavit of compliance on March 1, 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.

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

Petitioner's certification was prepared before August 11, 1988. Respondent did

not receive a complete application for certification on Petitioner's behalf

until August 11, 1988, when 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.

10. By letter dated November 1, 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

an introduced into your body cocaine,

cannabis, tetrahydrocannabinol, and lysergio

acid diethylamide..

11. Petitioner, born December 10, 1955, grew up in the economically

deprived areas of Miami, Florida, known as Overtown and Liberty City. He began

using marijuana when he dropped out of school at age 15. He last used marijuana

at least three years- before he took the polygraph examination on February 11,

1985. The use of cocaine, THC, and LSD occurred when Petitioner was 15 to 17

years old with the last such usage occurring in 1974. In 1973 Petitioner

received a very stern lecture from his mother that turned his life around.

Shortly thereafter, Petitioner joined the U.S. Marine Corps where he rose to the

rank of E3 Lance Corporal. Following his honorable discharge from the Marine

Corps, Petitioner renewed his formal education. Petitioner completed the two

years of work necessary to achieve his high school diploma and then went on to

graduate from college.

12. Petitioner freely admitted his prior drug usage during his pre-

employment processing and made no attempt to conceal the truth. Petitioner has

used no controlled substance since 1981.

13. At the time of the hearing, Petitioner was 33 years of age and had

worked as a correctional officer since March 1, 1985. Petitioner's job

performance evaluations as a correctional officer have been above satisfactory.

Petitioner has received several commendations for his service.

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

trustworthy individual who possesses high moral character.

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

correctional officer on November 1, 1988, Petitioner timely requested a formal

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

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

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

Florida Statutes.

17. 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).

18. 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 1, 1988, denying Petitioner's

application for certification was within the time parameters set by Section

120.60(2), Florida Statutes.

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

officer possess good moral character:

7) Have a good moral character as determined

by a background investigation under

procedures established by the commission.

20. 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-

27.00225 by an applicant for certification,

employment, or appointment at any time

proximate to such application for

certification, employment, or appointment

conclusively established 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, Florida Administrative Code, are

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

phencyclidine, benzodiazepines, and methaqualone.

21. 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.

22. 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 the individual's

honesty, fairness, and respect for the rights

of others and for the laws of the state and

nation.

23. The only evidence that suggests a flaw in Petitioner's moral character

is his admitted use of drugs before he began his employment as a correctional

officer in 1985.

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

of drugs conclusively establishes that 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 110. The use of cocaine, THC and LSD some 11 years prior to

his employment were not at a time proximate to the employment or the application

for certification and do not conclusively establish that Petitioner is not of

good moral.

25. The unlawful use of drugs at a time remote from an 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. If only the type of the drugs used by

Petitioner and the frequency of the use of those drugs were considered, it could

be conclusively established under Rule 11B-27.0011(2), Florida Administrative

Code, that Petitioner lacked good moral character. No one condones the usage of

those killer drugs. The rule, however, also provides for consideration of the

age of the applicant at the time of the use. It is clear that Petitioner's drug

use came at a time when he was being heavily influenced by other high school

dropouts in Liberty City and Overtown. Petitioner has shown considerable moral

character in bettering himself through military service and through education

and in turning his back on drugs.

26. The Petitioner has made a prima facie showing of good moral character,

which Respondent has failed to rebut or contradict.

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 7th 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, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of July, 1989.

APPENDIX

The proposed findings of fact submitted on behalf of Petitioner, individually,

are addressed as follows:

1. Rejected as unnecessary to result reached.

2.-5. Addressed in paragraphs 11-12.

6. Addressed in paragraphs 6 and 8.

7.-8. Addressed in paragraph 11.

9.-10. Rejected as being unnecessary to result reached.

11. Addressed in paragraph 13.

12. Rejected as unnecessary to result reached.

13. Addressed in paragraph 13.

14.-20. Rejected as being subordinate to conclusion

reached.

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 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 submitted on behalf of Respondent are addressed as

follows:

1-2 Addressed in paragraphs 10-11.

3. Addressed in paragraph 10.

4. Rejected as unnecessary to result reached.

5.-6. Addressed in paragraphs 10-11.

7. Addressed in paragraph 11.

8. Addressed in paragraph 5.

COPIES FURNISHED:

Donald D. Slesnick, II

Attorney at Law

Law Offices of

Slesnick and Lober

10680 Northwest 25th Street

Suite 202

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

Jeffrey Long, Director

Criminal Justice Standards

Training Commission

Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, Esquire

General Counsel

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302