STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

v. ) CASE NO. 86-0987

)

TERESA A. COLLINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled cause on August 1, 1986, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: Gene "Hal" Johnson, Esquire

223 West College Avenue Tallahassee, Florida 32302

By administrative complaint dated February 25, 1986, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke the certificate of Teresa A. Collins, Respondent, as a law enforcement officer. As grounds therefor it is alleged that between February and April of 1985, Respondent was in possession of and smoked a controlled substance to wit: Cannabis, and that these acts demonstrate Respondent failed to maintain good moral standards required of a law enforcement officer.

At the commencement of the hearing Respondent admitted paragraph one of the Administrative Complaint to the effect that Collins is a certified law enforcement officer. Thereafter Petitioner called six witnesses and Respondent called five witnesses, including herself. The issue in this case is whether Respondent was in possession of and smoked marijuana after February 22, 1985, the date she was employed as a police recruit by the City of Tampa Police Department and assigned to the Police Academy.

Proposed findings have been submitted by the parties. Those proposed findings are accepted except for the testimony of Gina Rodriguez. Although

Rodriguez testified she observed Respondent smoke marijuana at least once subsequent to February 22, 1985, her failure to better describe the occasion, state whether others were present, the conflicting statements she made prior to the hearing and her obvious hostility towards Respondent detract from her credibility.

FINDINGS OF FACT

1. Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02.

   
   

2. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department.

   
   

3. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer.

   
   

4. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette.

   
   

5. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa.

   
   

6. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this

   occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible.

   
   

7. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit.

   
   

8. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time.

   
   

9. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Respondent is charged with violating Section 943.1395(5), Florida Statutes, by reason of failure to maintain the qualifications prescribed by Section 943.13(7), Florida Statutes, which requires Respondent to have a good moral character. The lack of good moral character stems from the allegation that Respondent "did then unlawfully be in actual or constructive possession of a controlled substance, named or described in Section 893.09, Florida Statutes, to wit: Cannabis, and did unlawfully consume the said controlled substance by smoking."

    
    

12. License revocation proceedings are penal in nature. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). The violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Thus, in license revocation proceedings, which this case involves, the standards of proof is clear and convincing evidence and Petitioner has the burden of proof. Bowling v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

13. While the evidence is clear that Respondent has used marijuana prior to her entry into the police academy, the evidence is not clear and convincing that such use occurred after she entered the police academy on February 22, 1985.

    
    

14. From the foregoing it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent possessed or used a controlled substance to-wit: Cannabis, after commencing her training to become a certified law enforcement officer and has failed to prove Respondent has not adhered to the requirement that she maintain good moral character subsequent to her employment by the Tampa Police Department. It is

RECOMMENDED that the Administrative Complaint filed against Teresa A. Collins be DISMISSED.

ENTERED this 22nd day of September, 1986, in Tallahassee Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0987

Treatment accorded Petitioner's proposed findings 1-8. Accepted.

9. Rodriguez's testimony changed so many times it was not deemed credible. Furthermore she was clearly out to "get" Respondent.

Treatment accorded Respondent's proposed findings.

14. Rejected. Rodriguez testified she saw Respondent smoke marijuana at least once subsequent to February 22, 1985, but for failure to better describe the occasion and whether others were present detracts from the credibility of this testimony.

COPIES FURNISHED:

Joseph S. White, Esquire

P.O. Box 1489

Tallahassee, Florida 32302-1489

Gene "Hal" Johnson, Esquire

223 W. College Ave. Tallahassee, Florida 32302

Mr. Daryl G. McLaughlin, Director Criminal Justice Standards

And Training

P.O. Box 1489

Tallahassee, Florida 32302-1489

Docket for Case No: 86-000987

Orders for Case No: 86-000987