99-004951 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Pedro Alvarez Status: Closed Recommended Order on Tuesday, May 2, 2000.

Summary: The act of providing information, known to be false, to an employer shows lack of good moral character and warrants the revocation of Respondent`s certificate from the Criminal Justice Standards and Training Commission.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 99-4951

)

PEDRO ALVAREZ, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 25, 2000, by video teleconference at sites in

Tallahassee and Key West, Florida, before Administrative Law

Judge Michael M. Parrish, of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Manuel E. Garcia, Esquire

515 Whitehead Street

Key West, Florida 33040

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner

seeks to take disciplinary action against the Respondent on the

basis of alleged misconduct set forth in an Administrative

Complaint.

PRELIMINARY STATEMENT

At the final hearing the Petitioner presented the testimony

of four witnesses and also offered six exhibits, all of which

were received in evidence. The Respondent presented the

testimony of one witness. 1/ The Respondent also had two

exhibits marked for identification, but ultimately withdrew both

exhibits as unnecessary.

At the request of the Respondent, the parties were allowed

20 days from the filing of the transcript within which to file

their proposed recommended orders. The transcript was filed on

March 8, 2000. Thereafter, both parties filed proposed

recommended orders containing proposed findings of fact and

conclusions of law. The parties' proposals have been carefully

considered during the preparation of this Recommended Order. 2/

FINDINGS OF FACT

1. The Respondent, Pedro Alvarez, was certified by the

Criminal Justice Standards and Training Commission on August 23,

1991, and was issued Corrections Certificate number 73083. The

Respondent is currently certified by the Criminal Justice

Standards and Training Commission as a Corrections Officer.

2. At all times material to this case, the Respondent was

employed by the Monroe County Sheriff's Office as a Corrections

Officer. 3/

3. During the latter part of 1998, the Respondent was

having recurring migraine headaches. The Respondent sought

medical treatment for the migraine headaches by going to the

Southern Medical Group. He was seen by a physician or by a

physician's assistant at the Southern Medical Group on

November 11, 1998, and on November 20, 1998. The Respondent did

not go to the Southern Medical Group on November 16, 1998.

4. During the course of the Respondent's visit to the

Southern Medical Group on November 20, 1998, the physician's

assistant who saw him that date wrote a note on a prescription

pad and gave the note to the Respondent. The note was correctly

dated "11/20/98," and correctly stated: "Seen today for

migraine headaches." The note written by the physician's

assistant also correctly stated: "Also seen 11/11/98."

5. After receiving the above-described note from the

physician's assistant, the Respondent intentionally altered the

text of the note by changing the date "11/11/98" to read

"11/16/98." As altered by the Respondent, the note read "Also

seen 11/16/98," where it had originally read "Also seen

11/11/98."

6. Later in the day on November 20, 1998, the Respondent

took the altered note to a notary public and had the notary

public make a photocopy of the altered original note. The

Respondent then had the notary public prepare a certification

statement on the photocopy reading: "This document is a true

copy of a doctor's notice from Lorraine M. Pelletier to Pedro

Alvarez." The notary public placed her signature and seal

following the certification statement. At that time, the

Respondent knew that the original note had been altered, but the

notary public was unaware of the alteration.

7. Due to the number of days on which the Respondent had

been absent from work because of illness, he was required to

provide his supervisors with written doctor's notes when he was

absent due to illness. In fulfillment of that requirement,

later in the day on November 20, 1998, the Respondent delivered

to his immediate supervisor a notarized copy of the altered

note, which falsely stated that the Respondent had been seen at

the Southern Medical Group on November 16, 1998.

8. The immediate supervisor suspected that the notarized

copy of the note had been altered. He reported his suspicion to

his supervisor and to internal affairs. He also asked the

Respondent to provide the original of the note written by the

physician's assistant. The Respondent never provided the

original note to his supervisor.

9. On December 7, 1998, the Respondent was advised by an

officer in internal affairs that they were investigating the

Respondent for what appeared to be an act of providing false

information to his employer. Later on December 7, 1998, the

Respondent resigned from his employment as a Corrections Officer

with the Monroe County Sheriff's Office. The Respondent also

admitted that he had altered the date on the note from the

physician's assistant.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

11. In a case of this nature, the Petitioner bears the

burden of proving the facts alleged in the Administrative

Complaint by clear and convincing evidence. It has met that

burden in this case. 4/

12. Subsections (7) and (8) of Section 943.1395, Florida

Statutes, read as follows, in pertinent part:

(7) Upon a finding by the commission that

a certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such

terms and conditions, the commission may

revoke certification or impose additional

penalties as enumerated in this subsection.

(d) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

(8)(a) The commission shall, by rule,

adopt disciplinary guidelines and procedures

to administer the penalties provided in

subsections (6) and (7). The commission

may, by rule, prescribe penalties for

certain offenses. The commission shall, by

rule, set forth aggravating and mitigating

circumstances to be considered when imposing

the penalties provided in subsection (7).

(b) The disciplinary guidelines and

prescribed penalties must be based upon the

severity of specific offenses. The

guidelines must provide reasonable and

meaningful notice to officers and to the

public of penalties that may be imposed for

prohibited conduct. The penalties must be

consistently applied by the commission.

13. The Commission has by rule defined the acts which

constitute "a certified officer's failure to maintain good moral

character" as required by Section 943.13(7), Florida Statutes.

5/ The definition includes: "The perpetration by an officer

of an act that would constitute any of the following misdemeanor

or criminal offenses whether criminally prosecuted or not." The

offenses itemized in the rule include Section 837.06, Florida

Statutes. The Respondent's actions described in the foregoing

findings of fact constitute the offense described in Section

837.06, Florida Statutes.

14. As required by Section 943.1395(8), Florida Statutes,

the Commission has, by rule, adopted disciplinary guidelines and

procedures to administer the penalties authorized by statute.

6/ Those rules provide that, absent aggravating or mitigating

circumstances, the penalty for a false report or statement in

violation of Section 837.06, Florida Statutes, is revocation of

the officer's certificate. 7/ There is no persuasive evidence

in the record of this case sufficient to provide a basis for

mitigation of the guideline penalty. 8/

RECOMMENDATION

On the basis of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that the Commission issue

a final order revoking the Respondent's certificate.

DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May, 2000.

ENDNOTES

1/ The Respondent recalled one of the witnesses who had

previously been called by the Petitioner.

2/ The proposed findings and proposed conclusions set forth in

the Petitioner's Proposed Recommended Order are, for the most

part, consistent with the findings and conclusions reached in

this Recommended Order. Substantial portions of the proposals

submitted by the Petitioner have been incorporated into this

Recommended Order.

3/ For some unexplained reason, paragraph 2 of the proposed

findings of fact in the Petitioner's Proposed Recommended Order

reads: "The Respondent was employed with the Miami-Dade Police

Department on July 17, 1972." There is no evidence of such

employment in the record of this case, and, in any event, any

employment at such time and place would be irrelevant to the

issues in this case.

4/ In his Proposed Recommended Order, the Respondent does not

dispute the sufficiency of the Petitioner's evidence. Rather,

the principal argument in the Respondent's Proposed Recommended

Order is that there are mitigating factors to be considered in

determining the appropriate penalty in this case.

5/ Rule 11B-27.0011(4), Florida Administrative Code.

6/ Rule 11B-27.005, Florida Administrative Code.

7/ Rule 11B-27.005(5)(b)4, Florida Administrative Code.

8/ In his Proposed Recommended Order, the Respondent argues that

there are several mitigating factors that should be applied to

reduce the penalty in this case. Those arguments all fail for

the following reasons. A number of the mitigating factors

asserted by the Respondent are not identified as mitigating

factors in Rule 11B-27.005(6)(b), Florida Administrative Code.

The other mitigating factors asserted by the Respondent lack a

factual predicate in the record of this case.

COPIES FURNISHED:

Karen D. Simmons, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Manuel E. Garcia, Esquire

515 Whitehead Street

Key West, Florida 33040

A. Leon Lowry, II, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.