STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3589

)

EDWARD CHAVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on August 15, 1991, in Sanford, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel Florida Department of

Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Edward Chavers, pro se

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on March 29, 1991, when the Criminal Justice Standards and Training Commission (Commission) issued an administrative complaint against the Respondent, Edward Chavers, and alleged that he had violated Sections 943.1395(5), (6), and 943.13(7), Florida Statutes, together with Rule 11B- 27.0011(4)(b), Florida Administrative Code. More specifically, the complaint alleged that Respondent had failed to maintain good moral character as he had unlawfully and knowingly been in the actual or constructive possession of a controlled substance. Respondent completed an election of rights form in which he disputed the allegations of fact and requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 7, 1991.

At the hearing, the Commission presented the testimony of the following witnesses: Kevin Shea, a deputy employed by the Longwood Police Department; and Christine Alt, a forensic chemist employed by the Seminole County Sheriff's department. The Commission's exhibit #1 was admitted into evidence. The Respondent testified in his own behalf.

The transcript of the proceedings was filed with the Division of Administrative Hearings on August 27, 1991. After the hearing, the parties were granted ten days from the filing of the transcript within which to file a proposed recommended order. The Commission's timely filed proposed recommended order has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. The Respondent failed to timely file a proposed order.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Respondent was certified by the Commission on March 1, 1983, and was issued certificate number 06-83-502-01.

   
   

2. Prior to January, 1990, the Respondent was employed as a correction officer at Tomoka Correctional Institution (TCI).

   
   

3. During the course of his training and experience as a correction officer Respondent has become familiar with cannabis and is able to recognize the controlled substance both by sight and smell.

   
   

4. Respondent has confiscated cannabis from inmates at TCI at least one hundred times.

   
   

5. On January 17, 1990, Respondent went to the Cool Breeze Bar in Seminole County, Florida. On that date, the bar was under surveillance by the narcotics and vice unit as it was thought to be a known gathering place for individuals selling illegal narcotics.

   
   

6. As part of his surveillance of the bar, Deputy Shea observed a man later known to be the Respondent passed out in an automobile. The automobile belonged to Respondent and he was its only occupant. When Deputy Shea approached the vehicle he observed what appeared to be a marijuana pipe on the dash of the car at approximately arm's length from the Respondent. On further search Deputy Shea retrieved an envelope containing a substance which he later field tested. That substance field tested positive for cannabis.

   
   

7. Deputy Shea's investigation was initiated after he opened the car door and smelled an aroma which he identified with burnt cannabis.

   
   

8. After the Respondent was aroused from his sleep, Deputy Shea patted him down and placed him under arrest. The Respondent was disoriented and remained so during the time Deputy Shea searched the vehicle. Respondent had been drinking heavily.

   
   

9. Deputy Shea marked the seized items for identification and later sent them to the sheriff's laboratory for additional testing. That testing was performed by Ms. Alt.

10. Ms. Alt weighed and tested the items seized from Respondent's vehicle and determined that the plant material was cannabis and weighed less than 20 grams.

    
    

11. Respondent knew on the evening of January 17, 1990, that cannabis had been smoked in his car but claimed he was unaware of the illegal items which others had allegedly left behind. Respondent claimed his cousins had smoked the marijuana in his car while he was in the bar and that he had gone to the vehicle later to sleep off his intoxication.

    
    

12. On March 19, 1990, the Respondent entered a plea of nolo contendere to the charge of possession of less than 20 grams of cannabis and was adjudicated guilty.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 943.1395(5), Florida Statutes, provides, in part:

    
    

    (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of

    s. 943.13(1)-(10)...

    
    

15. Section 943.13, Florida Statutes, sets forth the minimum qualifications for certification as a law enforcement officer. Subsection (7) provides:

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

16. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the court described what is meant by "moral character" as follows:

    
    

    Moral character... means 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.

    
    

17. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1987), the court stated:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. 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.

    
    

18. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity.

    
    

19. Rule 11B-27.0011(4)(b), Florida Administrative Code, provides that a certified officer fails to maintain good moral character if that individual perpetrates any of the listed misdemeanor and criminal offenses whether prosecuted or not. Among the listed offenses is the possession of less than 20 grams of cannabis.

    
    

20. In this case, the Commission has established by clear and convincing evidence that the Respondent was in possession of less than 20 grams of cannabis. Accordingly, the Commission has also established that the Respondent has failed to maintain good moral character, a requisite for certification. Respondent's explanation regarding his cousins' alleged use of his vehicle does not absolve him of the consequences of the unlawful possession.

RECOMMENDATION

Based on the foregoing, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification.

RECOMMENDED this 12th day of September, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3589

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION:

1. Paragraphs 1 through 14 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None submitted.

COPIES FURNISHED:

Joseph S. White

Assistant General Counsel Florida Department of

Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Edward Chavers

113 Scott Drive

Sanford, Florida 32771

Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Florida 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 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: 91-003589

Orders for Case No: 91-003589