STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1396

)

SAMUEL O. BEST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 15, 1991, at Panama City, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Rhonda S. Clyatt, Esquire

Post Office Box 2492 Panama City, Florida 32402

STATEMENT OF THE ISSUES

The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.

PRELIMINARY STATEMENT

On November 7, 1990, the Petitioner, Criminal Justice Standards and Training Commission, filed an Administrative Complaint against the Respondent, Samuel O. Best, seeking imposition of an appropriate penalty, namely decertification, for alleged violations of Chapter 943, Florida Statutes.

Specifically, the Commission alleged that Respondent, Samuel O. Best, lacked the requisite good moral character for a police officer because on or about February 8, Respondent was in possession of a controlled substance as described in Section 893.03, Florida Statutes, to wit: Cannabis and/or did introduce the said substance into his body. See Sections 943.1395(5)5, (6) and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c) and/or (d), Florida Administrative Code.

At the hearing, Petitioner called four witnesses and introduced two exhibits into evidence. Respondent testified in his own behalf, but did not offer any exhibits.

Petitioner and Respondent filed proposed recommended orders on November 18, 1991 and November 21, 1991, respectively. Petitioner's and Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such proposals were not supported by the weight of evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01.

   
   

2. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department.

   
   

3. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse.

   
   

4. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters.

   
   

5. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket.

   
   

6. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days.

   
   

7. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty.

   
   

8. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house.

   
   

9. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man.

   
   

10. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990.

    
    

11. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the

    porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/

    
    

12. Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed.

    
    

13. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes.

    
    

14. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch.

    
    

15. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter.

    
    

16. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department.

    
    

17. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

19. Chapter 943, Florida Statutes, regulates the certification of law enforcement officers in Florida.

    
    

20. Section 943.13(4), Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

21. Rule 11B-27.0011(4), Florida Administrative Code, defines good moral character. The Rule states in pertinent part:

    
    

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

    1. The perpetration by the officer 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 117.03, 812.014(1)(d)

       [read 812.014(2)(d)][.]

    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 of whether such act or conduct constitutes a crime[.]

    
    

    Section 943.1395 requires:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10) . . .

    
    

    1. Upon a finding of 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 in lieu of revocation of certifica- tion:

       
       

       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.

    The Criminal Justice Standards and Training Commission has also adopted a rule on the subject of discipline for the failure to maintain good moral character. Rule 11B-27.005, Florida Administrative Code, provides:

    
    

    1. The Commission sets forth below a range of disciplinary guidelines from which disci- plinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Subsection 943.13(7), Florida Statutes. The purpose of

       the disciplinary guidelines is to give notice to certified officers of the range of penalties

       which will be imposed upon particular violations of Subsection 943.13(7), Florida Statutes, except as provided in Subsections (4), herein.

       The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), Florida Statutes, will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension

       of revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

       
       

    2. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), Florida Statutes, it shall issue a final order imposing penalties within

       the ranges recommended in the following discipli- nary guidelines:

       
       

       1. For the perpetration by the officer of an act which would constitute any felony

          offense, as described in Rule 11B-27.0011(4)(a), but where there was not a violation of Sub- section 943.13(4), Florida Statutes, the usual action of the Commission shall be to impose a penalty ranging from suspension to revocation.

          
          

       2. For the perpetration by the officer of an act which would constitute any of the mis- demeanor offenses as described in Rule 11B- 27.0011(4)(b), but where there was not a violation of Subsection 943.13(4), Florida Statutes, the action of the Commission shall be to impose a penalty ranging from probation to revocation.

          
          

       3. For 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, as described in

          Rule 11B-27.001(4)(c), if such act or conduct does not constitute a crime, as described in Rule 11B-27.0011(4)(c), if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b) above, the action of the commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation.

          
          

       4. For the unlawful use by the officer of any of the controlled substances enumerated in Rule 11B-27.00225, as described in Rule

          11B-27.0011(4)(d), the action of the commission shall be to impose a penalty ranging from sus- pension to revocation.

          
          

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of

       one or more of the following mitigating circumstances:

       
       

       1. Whether the officer used his or her official authority to facilitate the misconduct;

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

       3. The officer's employment status at the time of the final hearing before the Commission;

       4. The recommendations of character or employ- ment references;

       5. The number of violations found by the Commission;

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

       8. The danger to the public;

       9. The length of time since the violation;

       10. The length of time the officer has been certified;

       11. The actual damage, physical or otherwise, caused by the misconduct;

       12. The deterrent effect of the penalty imposed;

       13. Any effort of rehabilitation by the officer;

       14. The effect of the penalty upon the officer's livelihood;

       15. The penalties imposed for other misconduct;

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

       17. The officer's compliance with the terms and conditions of any Commission-ordered probation;

           
           

    4. The Commission may impose one or more of the following penalties, listed in increasing order of severity:

    1. The issuance of a reprimand.

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

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions of probation may include, but are not limited to: periodic reports from the officer, supervisor or counselor; indirect or direct supervision by Division staff or a Commission-approved supervisor; furnishing urine drug tests; personal appearance(s) before the Commission; participation in psychological, occupational or substance

       abuse counseling; successful completion of training or retraining as specified in Subsection (5)(b) above; maintaining employ- ment; refraining from violations of Subsection 943.13(1)-(10); the payment of restitution for damages or loss created by the officer's mis- conduct; or any other terms or conditions as appropriate.

    4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

    5. Revocation of certification.

    
    

22. Respondent is charged with violating Section 943.13, Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, by virtue of his failure to maintain the qualification of good moral character as required in Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4). The lack of "good moral character" alleged by Petitioner stems from its allegation that Best did:

    
    

    "unlawfully, and knowingly be in actual

    or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes., to wit: Cannabis, and/or did introduce the said substance into his body."

    
    

23. Petitioner has the burden to prove by clear and convincing evidence that the Respondent violated Chapter 943 and is subject to discipline for that violation. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Walker v. State, 322 So.2d 612 (Fla. 3d DCA !975); Reid v. Florida Real Estate Commission,

188 So.2d 846 (Fla. 2d DCA 1966). In this case, Petitioner has not carried its burden of demonstrating that Best failed to maintain a "good moral character" as required by Section 943.13(7), Florida Statutes. See, Bachynsky v. State, Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985); McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Florida Board of Bar Examiners re: G.W.L., 364 So.2d 454 (Fla. 1978), Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). The evidence did not demonstrate that Respondent committed the acts alleged to demonstrate his lack of character, i.e., knowing use of marijuana. Likewise, the evidence failed to demonstrate that Respondent lacked good moral character. In fact, the evidence affirmatively demonstrated that Respondent continues to be of good moral

character. Thus, it must be concluded that no violation of Section 943.13(7), Florida Statutes, has occurred, and the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed.

RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1991.

ENDNOTES

1/ The insurance agent was not present at the hearing and did not offer any evidence at the hearing. Therefore his ability to identify the odor of marijuana is in serious doubt and the hearsay testimony of Chief Richter about the insurance agent's claims regarding such an ability are insufficient to establish that the substance in the cigarette was marijuana.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1396

1. The facts contained in paragraphs 1,2,3,5,6,7,8 and 9, of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

   
   

2. The facts contained in paragraphs 4,15 and 17 of Petitioner's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in paragraphs 10,11,12,13 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

   
   

4. The facts contained in the first sentence of paragraph 16 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence.

   
   

5. The facts contained in paragraphs 1,2,3,4,5,8,9,10,11 and first paragraph numbered 12, are adopted in substance, insofar as material.

   
   

6. The facts contained in paragraphs 6,7,13 and second paragraph numbered 12 of Respondent's Proposed Findings of Fact are subordinate.

7. The facts contained in the second paragraph numbered 13 of Respondent's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Joseph S. White, Esquire Post Office Box 1489 Tallahassee, FL 32302

Rhonda S. Clyatt, Esquire Post Office Box 2492 Panama City, FL 32402

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001396

Orders for Case No: 91-001396