STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 86-4141

)

WILLIE A. OWENS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held in Tampa, Florida, on February 25, 1987. Appearing for the parties were:

For the Petitioner: Joseph S White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For the Respondent: Marvin P. Jackson, Esquire

400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603

The Respondent, who holds a law enforcement certification from the Petitioner, has been charged by administrative complaint with possession and consumption of a controlled substance, cannabis, on or about February 9, 1985. The issue is whether the allegation is true, end whether if true, the Respondent no longer has good moral character such that his certification should be revoked by the Petitioner.

FINDINGS OF FACT

1. The Respondent, Willie A. Owens, was certified by the Criminal Justice Standards and Training Commission on April 27, 1984, and was issued Certificate Number 02-84-002-01. In February, 1985, the Respondent was employed in a training position as a Highway Patrol Officer and had been in that position for about twelve months in February, 1985. T. 64.

   
   

2. On the evening of February 10, 1985, the Hillsborough County Sheriff's Officer initiated an investigation into a complaint of involuntary sexual battery alleged to have been committed by the Respondent on February 9, 1985.

   T. 9-10, 24, 13. (The Respondent has not been charged with this offense in this case.)

3. Pursuant to that investigation, between the hours of 12:30 and 1:30

   A.M. on February 11, 1985, Detective David Gee, Hillsborough County Sheriff's Office, accompanied by Lieutenant P. E. Dixon, Florida Highway Patrol, Lieutenant Maxwell, and others, drove to the residence of the Respondent. T. 10, 25.

   
   

4. The Respondent came to the door fully dressed and was reasonably alert. T. 18-19.

   
   

5. The Respondent was asked if the group could come inside his residence, and he invited them in. T. 25.

   
   

6. After the group was inside, Detective Gee stated that the Respondent was a suspect in a sexual battery case. T. 25, 65, 11. Detective Gee then advised the Respondent of his rights pursuant to the Miranda requirements. T. 25, 11-12.

   
   

7. The Respondent signed a waiver of rights form and consented to be questioned at that time, and did not ask to have a lawyer present. T. 11-12.

   
   

8. During the interview inside, the Respondent and Detective Gee were sitting on a couch. T. 15. The Respondent said that he had had a female companion (the alleged victim) in his home on the night of February 9, 1985, (he was not on-duty) and that she had produced some marijuana that she had brought with her to the Respondent's home. T. 14-15. The Respondent said that he and she smoked two marijuana cigarettes, characterized in this record by one law enforcement witness as a small amount of marijuana. T. 14-15, 29.

   
   

9. Detective Gee then looked into an ashtray that was directly in front of him on a coffee table in front of the couch and saw the end of one used marijuana cigarette. T. 15. He asked the Respondent if that were part of the marijuana and the Respondent said yes, it was. T. 15.

   
   

10. The used bit of marijuana was very small, the cigarette having been burned all the way to the end of the paper. T. 16-17.

    
    

11. There was only one used marijuana cigarette in the ashtray. T. 15. (There is a conflict of testimony as to whether there were one or two remains of marijuana cigarettes in the ashtray. Detective Gee is credited with the more reliable memory of what was in the ashtray since he was the one who took the substance into custody.)

    
    

12. Detective Gee then seized the bit of marijuana, which was in his plain view. T. 17. He did not have a search warrant. T. 33.

    
    

13. The bit of substance seized by Detective Gee was cannabis or marijuana. T. 15, 16-17, 26-29.

    
    

14. Detective Gee had permission to search the residence of the Respondent, but there is no evidence that the Respondent had any other marijuana or any other controlled substance in his possession. T. 34-35, 36-37, 66-67.

    
    

15. Detective Gee did not have the substance analyzed to determine chemically if it was cannabis because he did not intend to charge the Respondent with a crime. T. 22.

16. The authorities did not charge the Respondent with any crime connected with the substance found in the ashtray. T. 19-20.

    
    

17. The Respondent had possession of the bit of marijuana seized by Detective Gee because he knew what it was and it was under his control and possession in his home, and his female companion was no longer there.

    
    

18. Additionally, the Respondent possessed and consumed some small portion of marijuana provided to him by his female companion on February 9, 1985. The record does not contain precise evidence as to the amount, but it may be inferred from the visual evidence and testimony that the amount was substantially less than 20 grams.

    
    

19. A law enforcement officer has a duty to enforce laws forbidding the possession and use of controlled substances. T. 30.

    
    

20. A Highway Patrol Officer normally is assigned alone in a car, without direct supervision. T. 30-31. Such an officer may, on occasion, have a duty to seize controlled substances and destroy the same if a charge of illegal possession or use is not to be filed. T. 32. Saving the controlled substance for personal use would be a violation of that duty. Id. In such event, it is likely that there would be little complaint from the motorist from whom the controlled substance was seized.

    
    

21. There have been no complaints concerning the work performed by the Respondent while employed by the Highway Patrol. T. 33. He is considered to be honest and trustworthy by reputation. T. 59-60.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of this proceeding.

    
    

23. The administrative complaint alleges that the Respondent has violated sections 943.1395(5) and 943.13(7), Fla. Stat., on or about February 9, 1985, by "unlawfully and knowingly [being] in actual or constructive possession of a controlled substance, named or described in section 893.03, Florida Statutes, to-wit: cannabis, and did consume the said controlled substance by smoking."

    
    

24. In an administrative hearing, the identity of marijuana may be established by lay testimony. Forehand v. School Board of Washington County,

    481 So.2d 953, 956 (Fla. 1st DCA 1986). The identity of the substance in question in this case was established by the testimony of experienced law enforcement officers. Moreover, the Respondent agreed with the identity of the substance as cannabis.

    
    

25. Law enforcement officers had permission from the Respondent to be in his home in the early morning hours of February 11, 1985. Seizure of the cannabis without a warrant was proper since the law enforcement officers were properly on the premises and the substance was in plain view.

    
    

26. Possession of cannabis by the Respondent has been proved. Brown v. State, 428 So.2d 250 (Fla. 1983). The Respondent consumed a small quantity of cannabis on or about February 9, 1985, and was in possession of the small amount consumed.

27. The amount possessed was less than 20 grams. Thus, if the Respondent had been charged and convicted of possession, the offense would have been a third degree misdemeanor pursuant to section 893.13(1)(f), Fla. Stat.

    
    

28. Section 943.1395(5), Fla. Stat. provides in part:

    
    

    The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) and shall, by rule, adopt revocation-

    of-certification procedures pursuant to chapter 120.

    
    

29. Section 943.13(7), Fla. Stat. provides that any person employed or appointed as an officer shall:

    
    

    [h]ave a good moral character as determined by a background investigation under procedures established by the commission.

    
    

30. Proof of an act of moral turpitude would justify a finding of a lack of good moral character. Florida Board of Bar Examiners, re: G.W.L., 364 So.2d 454, 458 (Fla. 1978). Moral turpitude is defined as involving . . . the idea of baseness or depravity in the private social relations or duties owed by man to man or by man to society." Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981). In the Pearl case, the court held that conviction of three felony counts of possession of controlled substances was not moral turpitude or evidence of bad moral character sufficient for suspension of a real estate license. The Court reasoned that the intent of the good moral character standard with respect to real estate licenses was to protect the public from dishonest real estate brokers, and that the conviction regarding possession of controlled substances did not directly pertain to honesty in the real estate profession.

    
    

31. The Florida Supreme Court, however, has not restricted the concept of good moral character to the common law notion of moral turpitude. Florida Board of Bar Examiners, supra, 364 So.2d at 458. In that case, the Supreme Court ruled that:

    
    

    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. (E.S.)

    
    

    364 So.2d at 458.

32. In Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), the Court defined moral character to mean:

    
    

    . . . 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. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral

    character. But . . . repeated acts in violation of law wherever committed and generally condemned

    by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature

    has determined should not be

    entrusted with a liquor license. (E.S.)

    
    

33. Finally, when the proceeding is one that may result in the loss of a valuable professional license, "the critical matters in issue must be shown by evidence which is indubitably as `substantial' as the consequences." Purvis v. Department of Professional Regulation, Board of Veterinary Medicine, 461 So.2d 134, 138 (Fla. 1st DCA 1984). (This is construed to mean not that the standard of proof is different from a mere preponderance of the evidence, but that where revocation of a license is at issue, the underlying basis for revocation must not just be supported by evidence of a technical violation: the evidence must show a substantial basis for revocation.)

    
    

34. From these cases, it is clear that proof of bad moral conduct requires proof of (1) an act which would cause a reasonable person to have substantial doubts as to the Respondent's honesty, fairness, and respect for the rights of others and the law, (2) or an act of moral turpitude, that is, one of baseness and depravity. An isolated act of indiscretion normally would not show a lack of good moral character. Finally, the evidence must show a substantial lack of good moral character sufficient to justify revocation of certification.

    
    

35. The Criminal Justice Standards and Training Commission has adopted a rule to implement section 943.13(7), Fla. Stat. That rule, rule 11B-27.0011 (effective January 7, 1985), provides in part that:

    
    

    1. For purpose of revocation pursuant to Section 943.1395(5), F.S., the employing agency shall forward to the Commission a report in accordance with procedures established in Rule 115-27.003 when:

       1. An officer has been found guilty of violating Sections . . . 893.13(1)(a)3., (1)(d)3., (1)(f),

          . . . .

       2. An officer has perpetrated any act which would constitute a felony or an offense under subsection (2)(a) of this rule, or committed an egregious act which establishes that the officer is not of good moral character. (E.S.)

          
          

36. The foregoing rule, by its explicit terms, establishes a required reporting procedure when certain acts become known to employing agencies. It is also logical to infer that the rule additionally establishes some guidance for determining what is "good moral character" in conjunction with the guidance that already exists from the Courts. It would be inappropriate, however, to construe the foregoing rule as providing a mandatory definition of moral character since the rule does not expressly state that to be its purpose, but focuses rather upon the reporting duties of employing agencies. With respect to law enforcement certification, penal law is to be construed strictly, and no conduct is to be regarded as included within a penal statute that its not reasonably proscribed by it. If there are any ambiguities, such ambiguities must be construed in favor of the licensee. McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887, 888 (Fla. 5th DCA 1984).

    
    

37. Possession of various quantities of controlled substances as a basis for revocation of a professional license has resulted in varying decisions concerning "moral character." Critical to these decisions is the link between the offense and the nature of the professional license.

    
    

38. In the Pearl case, three felony convictions for possession of a controlled substance was held to not be sufficient evidence of bad moral character for only the suspension of a real estate license. As discussed above, the Court found no critical nexus between honesty in real estate transactions and possession of a controlled substance.

    
    

39. In Adams v. State of Florida, Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), however, the Court found that possession of 52 marijuana plants was a sufficient basis for revocation of teaching certificates. The Court distinguished the Pearl case, holding that teachers differ from realtors in that teachers hold a unique leadership role in the community. The Court further found that the local newspaper had widely publicized that the teachers involved had had possession of the marijuana plants, and that such evidence showed that such possession was evidence that the local community deemed the offense to be very serious and morally wrong. The Court thus concluded that the evidence showed that the effectiveness of the teachers had been seriously impaired and that revocation of their licenses was proper. 406 So.2d at 1172.

    
    

40. Finally, in the McClung case, supra, the Court held that an isolated period of use of marijuana by a police officer (during a period of marital difficulties), where no criminal charges were ever filed, did not constitute "gross misconduct" to warrant revocation of law enforcement certification. The Court noted that there was no evidence of other misconduct or neglect of duty by the officer.

    
    

41. In summary, if rule 11B-27.011(2) explicitly provided a definition of lack of good moral character, then Respondent's use and possession of a single marijuana cigarette as shown in this case would prove lack of good moral

    character as so defined. This would be so because the rule includes the third degree misdemeanor of possession of less than 20 grams of marijuana as one of the offense sections, and further, includes the perpetration of "an offense under subsection (2)(a) of this rule" even without a finding of guilt of the offense. It would appear that otherwise, the offense "perpetrated" would either have to have been a felony or "an egregious act which establishes that the officer is not of good moral character." Rule 11B-27.011(2)(b). (E.S.)

    
    

42. The rule, however, does not establish a mandatory definition of moral character. Indeed, proposed findings of fact and conclusions of law submitted on behalf of the Criminal Justice Standards and Training Commission do not argue that the rule provides a mandatory definition and does not even mention the rule.

    
    

43. The evidence in this case shows that the Respondent has had no other blemishes upon his record during the twelve months that he was a training recruit for the Florida Highway Patrol. There is no evidence that he has been a routine user of marijuana. Unlike the teachers in the Adams case, the Respondent possessed only a single marijuana cigarette. He did not grow plants in a quantity sufficient for routine use and sale. Moreover, the Respondent did not seek out the marijuana, but was provided it by another person under circumstances consistent with a finding that his involvement did not occur through a predisposition to violate the law. It was circumstantial and an isolated event. The law enforcement agency that seized the evidence determined that the event was of too little importance to bring to trial, and did not have the substance chemically analyzed. Finally, the offense involved was not an "egregious act" or a felony. See rule 11B-27.0011(2)(b). The offense was a misdemeanor, and the amount involved was at the lowest end of the weight range (20 grams) for that misdemeanor.

    
    

44. The evidence in the record connecting the Respondent's offense with his duties as a law enforcement officer has been discussed in findings of fact

    19 and 20 above. Clearly the Respondent violated his duty to enforce the law by not arresting his guest when the marijuana was produced. A law enforcement officer, however, does not have "bad moral character" as a result of a single failure to arrest. Further, the connection between the potential that the Respondent would fail in his duty to properly handle seized marijuana when working alone on patrol is tenuous on this record. The evidence does not show that the Respondent is a frequent user of marijuana, but that he succumbed to temptation in an isolated instance in a social situation. Were this his second offense, or were the quantity of marijuana sufficient to show frequent use (such as growing 52 plants), then the connection to such official abuse of trust would be shown.

    
    

45. In summary, the instant case appears to fall short of proof of such bad moral character as to warrant revocation of law enforcement certification. The event was an isolated act, Zemour, Inc., supra. It was not such an act, standing alone as it must in this case, that "would cause reasonable [men] to have substantial doubts about [the respondent's] honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners, supra.

    
    

46. The Respondent sought to present evidence of his act of bravery in assisting the saving of two persons from a smoke-filled and burning home. This evidence is not admissible since it is an attempt to prove character by a

specific act of conduct, and such evidence is admissible only if the trait of character evidenced by the specific instance of conduct is at issue in the case. Here, bravery in the face of physical danger is not relevant to the fundamental issue of the case. Sections 90.405(2) and 90.404(1)(a), Fla. Stat.

RECOMMENDATION

For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order finding that the charge of a lack of good moral character has not been proven, that the law enforcement certificate issued to the Respondent, Willie A. Owens, not be revoked, and that the administrative complaint be dismissed.

DONE and RECOMMENDED this 27th day of April, 1987 in Tallahassee, Florida.

WILLIAM C. SHERRILL, JR. HEARING OFFICER

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4141

The following are rulings upon proposed findings of fact; by number, which have been rejected in this recommended order.

Findings of fact proposed by the Petitioner:

4-5. It appears that the Respondent was advised of the purpose of the visit after the group had entered, but the fact is not important to the result in the case.

8-9. It is true that both Detective Gee and Lieutenant Dixson have had significant experience in the identification of cannabis, but the proposed finding is subordinate.

9. The testimony of Detective Gee, that the remains of only one cigarette was in the ashtray, is adopted in this recommended order.

11. Rejected as not credible.

Findings of fact proposed by the Respondent:

1. Two cigarettes were involved initially.

2. While possession originated with the Respondent's companion, the Respondent then also possessed the cannabis.

3. Rejected as not credible and contrary to the evidence.

8-9. The testimony of the Respondent (admission), Lieutenant Dixson, and Detective Gee was sufficient to establish the character of the substance as cannabis.

10. The evidence cited to support this proposed finding concerning an act of bravery has been ruled inadmissible.

COPIES FURNISHED:

Rod Caswell, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Robert R. Dempsey Executive Director

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

Janet E. Ferris, Esquire General Counsel

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

Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Marvin P. Jackson, Esquire

400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

-vs.- DOAH CASE NO.: 86-4141

CJSTC CASE NO.: 0-1039

WILLIE A. OWENS,

Certificate Number: 02-84-002-01

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public hearing on July 23, 1987, in Naples, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was not present.

Upon a complete review of the transcript of record of hearing held on February 25, 1987, in Tampa, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated April 27, 1987, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed thereto, (which are attached hereto and incorporated by reference) the Commission adopts the Hearing Officer's Conclusion of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number: 02-84-002-01, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 2nd day of October, 1987.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

COLONEL BOBBY R. BURKETT, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to Willie A. Owens, 1004 North Kingsway Road, Brandon, Florida 33511 and Marvin P. Jackson, Esquire, 400 East Buffalo Avenue, Suite 110, Tampa, Florida 33603, by U.S. Mail on or before 5:00 P.M., this 2nd day of October, 1987.

cc: All Counsel of Record

Docket for Case No: 86-004141

Orders for Case No: 86-004141