STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARD AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1126

)

ANGELA D. COLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 29, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Elsa Lopez Whitehurst, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent unlawfully and knowingly possessed a controlled substance and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

The hearing in this case was noticed to begin at 10:00 a.m. on June 29, 1990. At the appointed time the Hearing Officer and counsel for the Petitioner were present, but there was no appearance by the Respondent. The Hearing Officer waited until shortly after 10:30 a.m. to commence the hearing, at which time there was still no appearance by or on behalf of the Respondent.

The Petitioner presented its evidence in the form of four exhibits and the testimony of three witnesses. At the conclusion of the hearing the Petitioner requested that it be allowed 20 days from the filing of the transcript within which to file a proposed recommended order. The request was granted. On July 20, 1990, the transcript of the hearing was filed with the Hearing Officer. By memorandum dated July 23, 1990, all parties were notified that the deadline for filing the parties' proposed recommended orders was August 9, 1990. The Petitioner filed a timely proposed recommended

order containing findings of fact and conclusions of law. Specific rulings on the findings of fact proposed by the Petitioner are contained in the Appendix to this Recommended Order. The Respondent did not file any post-hearing documents.

FINDINGS OF FACT

1. On July 3, 1986, the Respondent was certified by the Criminal Justice Standards and Training Commission, and was issued Certificate No. 03-86-502- 05.

   
   

2. Later that year, the Respondent was employed as a Correctional Office at the Broward Correctional Institution. The Broward Correctional Institution is a state prison that houses female prisoners. The Respondent's duties included working inside the prison and working on the perimeter posts. While on perimeter post, the Correction Officers, including the Respondent, would sit in a small car with a loaded 12-guage shotgun and a .38 caliber revolver. The primary function of the perimeter post is to observe the fences of the prison to insure that there is no unauthorized entry into or exit from the prison.

   
   

3. On several occasions the Respondent openly discussed with other Correctional Officers the fact that the Respondent used marijuana. On at least one occasion, the Respondent told another Correctional Officer that she

   (the Respondent) had reported for duty inside the prison with marijuana "joints" in her purse. On another occasion a Correctional Officer who relieved the Respondent on perimeter post smelled what seemed to be the odor of marijuana smoke and observed what appeared to be the remains of a marijuana cigarette.

   On yet another occasion the Respondent offered to provide marijuana to another Correctional Officer who worked on the same shift.

   
   

4. One of the Correctional Officers who worked with the Respondent became concerned about what she had heard and seen regarding the Respondent's use of marijuana and reported her concerns to higher authority at the prison. As a result of such report, on the evening of November 16, 1989, two prison officials approached the Respondent during her break. At that time the Respondent was sitting in her personal vehicle in the prison parking lot. The prison officials requested and received permission to search the Respondent's vehicle. A Marlboro cigarette box containing what appeared to be a partially smoked, hand-rolled marijuana cigarette was found underneath the driver's seat of the Respondent's vehicle. The hand-rolled cigarette found in the Respondent's vehicle tested positive for marijuana. The Respondent was arrested on a charge of introduction of contraband into a state correctional institution. The Respondent later pled guilty and was found guilty of the lesser included charge of possession of marijuana, less that 20 grams.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

6. The minimum qualifications for law enforcement and correctional officers are set forth in Section 943.13, Florida Statutes, subsection (7) of which provides: "Have a good moral character as determined by a background investigation under procedures established by the Commission."

7. Section 943.1395(5) and (6), Florida Statutes, contains the following relevant language:

   
   

   (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s.943.13(1)-

   (10) or who intentionally executes a false affidavit established in s.943.13(8), 5.943.133(2), or s.943.139(2)....

   (6) 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 5.943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

   1. Suspension of certification for a period not to exceed 2 years.

   2. 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.

   3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

   4. Issuance of a reprimand.

   
   

8. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. The rule states in relevant portion:

   
   

   1. For the purposes of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

      1. The perpetration of an act which would constitute any felony offense, whether criminally prosecuted or not, or

      2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

         Sections . .893.13... F.S., or

      3. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation,

         irrespective or whether such act or conduct constitutes a crime. ...

      4. The unlawful use of any of the controlled substances enumerated in Rule 11B- 27.00225.

   
   

9. The Respondent's act of being in possession of marijuana on the grounds of the prison where she was employed constitutes a failure to maintain good moral character within the meaning of subparagraphs (a), (b), and (c) of Rule 11B- 27.0011(4), Florida Administrative Code. 1/ Accordingly, one of the penalties authorized by Section 943.1395(5) and (6), Florida Statues should be imposed. In view of the specific circumstances of the Respondent's conduct, revocation appears to be the most appropriate penalty.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statues, and Rule 11B- 27.0011(4), Florida Administrative Code, and imposing a penalty of revocation of the Respondent's certification.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of August 1990.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August 1990.

ENDNOTE

1/ I do not address the question of whether the Respondent's conduct also constitutes a violation of subparagraph (d) of Rule 11B-27.0011(4), Florida Administrative Code, because the Administrative Complaint does not charge the Respondent with unlawful use of a controlled substance.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on all proposed findings of fact submitted by the parties:

Findings proposed by Petitioner:

The findings proposed in the following paragraphs have

been accepted in whole or in substance, with the omission in some cases of unnecessary details: 1, 2, 3, 5, 7, 9, 10, 13, 15, 16,

17, 18, and 24.

The findings proposed in the following paragraphs have

been rejected as constituting either subordinate or unnecessary details: 4, 6, 8, 11, 12, 14, 19, 20, 21, 22, 23, 25, 26, and

27.

The findings proposed in the following paragraph have

been rejected as based solely on hearsay evidence which would not be admissible over objection: 28.

Copies furnished:

Elsa Lopez Whitehurst, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Ms. Angela D. Coley

17524 Northwest 48th Place Miami, Florida 33055

Jeffrey Long, Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 90-001126

Orders for Case No: 90-001126