STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7435

)

SANDY L. MACK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 29, 1993, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: D. David Sessions, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Sandy L. Mack, pro se

1908 Boston Avenue, Apartment A Fort Pierce, Florida 34950

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On October 7, 1992, the Criminal Justice Standards and Training Commission (hereinafter referred to as either the "Commission" or "Petitioner") issued an Amended Administrative Complaint alleging that Respondent had engaged in the following conduct:

   
   

   1. On or about March 29, 1991, Respondent, Sandy Mack, did then unlawfully, while acting as a correctional officer, use excessive and/ or unnecessary force against inmate Mark Hornick.

   2. Between on or about March 1, 1991 and

      on or about April 18, 1991, Respondent, Sandy Mack, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to wit:

      Cannaboids [sic], and did introduce said substance into his body.

      
      

      According to the Amended Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(6),(7), Florida Statutes and Rule 11B- 27.0011(4)(c) and/or (d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character."

      
      

      Respondent denied the allegations of wrongdoing advanced in the Amended Administrative Complaint and requested a formal hearing. On December 16, 1992, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.

      
      

      The hearing was originally scheduled to commence on March 17, 1993, but at the request of Petitioner was continued and rescheduled for July 29, 1993. The hearing was held on July 29, 1993, as scheduled.

      
      

      At the outset of the hearing, before the taking of any evidence, the parties recited on the record those stipulations of fact into which they had entered. During the evidentiary portion of the hearing, Petitioner presented the testimony of Brian Whitty, a Shift Watch Commander with the St. Lucie County Sheriff's Department, John Forte, a former Director of Corrections with the St. Lucie County Sheriff's Department, and Francis Esposito, Roche Biomedical Laboratories' Laboratory Director. In addition to the testimony of these three witnesses, Petitioner offered, and the Hearing Officer received, six exhibits into evidence. Respondent, in addition to his own testimony, presented the testimony of Willie Singletary, a correctional officer with the St. Lucie County Sheriff's Department. He offered no documentary evidence.

      
      

      At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. The deadline established by the Hearing Officer was thirty days from the date of the filing of the hearing transcript with the Division of Administrative Hearings.

      
      

      The hearing transcript was filed with the Division of Administrative Hearings on August 26, 1993. Petitioner, on September 23, 1993, timely filed a proposed recommended order. Petitioner's proposed recommended order contains what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post- hearing submittal.

      
      

      FINDINGS OF FACT

      
      

      Based upon the evidence adduced at hearing, the parties' stipulations of fact, and the record as a whole, the following Findings of Fact are made:

      1. Respondent is now, and has been since May 16, 1986, certified by the Commission as a correctional officer. He holds certificate number 12-86-502-02.

         
         

      2. Respondent was employed as a correctional officer with the St. Lucie County Sheriff's Department (hereinafter referred to as the "County") from October 9, 1985, until April 26, 1991, when he was terminated by the County. He was disciplined by the County on various occasions during the first several years of his employment. Thereafter, for a period of approximately two years, until the spring of 1991, he had an unblemished disciplinary record.

         
         

      3. On March 20, 1991, at approximately 5:00 p.m., Respondent was working in the intake and booking area of the St. Lucie County Jail when he was involved in an altercation with Mark Hornick, an inmate at the facility, as Hornick was being escorted, in handcuffs, through the area by another correctional officer, Deputy John Fischer.

         
         

      4. Hornick was complaining about not having been fed.

         
         

      5. Respondent approached Hornick and asked him if he wanted to file a grievance.

         
         

      6. Moments later he grabbed the much smaller Hornick from behind and then pushed him into a wall in an adjacent hallway.

         
         

      7. Hornick struck his head on the wall and sustained a cut just over his

         eye.

         
         

      8. After Hornick made contact with the wall, he turned around and faced

         Respondent.

         
         

      9. Respondent thereupon grabbed Hornick again and this time picked him off the ground.

         
         

      10. He held Hornick in the air for a brief period of time before releasing

          him.

          
          

      11. The force Respondent used against Hornick was not, nor should it have

          appeared to Respondent to be, reasonably necessary to defend himself or anyone else against the imminent use of force, to overcome Hornick's resistance to any command that he had been given, or to accomplish any other legitimate objective.

          
          

      12. As a result of this March 20, 1991, altercation with Hornick, Respondent was given a ten-day suspension by the County, which determined following an investigation of the matter that Respondent, in his dealings with Hornick, had engaged in the excessive use of force.

          
          

      13. During his suspension, Respondent knowingly and voluntarily used marijuana.

          
          

      14. Upon Respondent's return to duty on April 15, 1991, he was ordered by his supervisor to report to a doctor's office to undergo urinalysis testing.

          
          

      15. Respondent went to the doctor's office on April 18, 1991, and provided a urine sample.

      16. The sample was given a unique identifying number and promptly sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious.

          
          

      17. The sample was properly protected and transported to a forensic laboratory, where it was received in good condition without any evidence of tampering.

          
          

      18. At the laboratory, the sample was kept in a secure manner throughout the testing process.

          
          

      19. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample.

          
          

      20. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of 9-carboxy, a unique metabolite of tetrahydrocannabinol (THC), the biologically active compound found in marijuana.

          
          

      21. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method, was utilized.

          
          

      22. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of 9-carboxy in a concentration of 41 nanograms per milliliter.

          
          

      23. The nanogram per milliliter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana within a time frame of approximately one hour to one week prior to the collection of the urine sample.

          
          

      24. Passive inhalation of another's secondhand marijuana smoke would produce much lower results.

          
          

      25. After these results were made known, Respondent's employment with the County was terminated.

          
          

          CONCLUSIONS OF LAW

          
          

          The Charges

          
          

      26. The instant Amended Administrative Complaint alleges that "[o]n or about March 29, 1991, Respondent, Sandy Mack, did then unlawfully, while acting as a correctional officer, use excessive and/or unnecessary force against inmate Mark Hornick" and that "[b]etween on or about March 1, 1991 and on or about April 18, 1991, Respondent, Sandy Mack, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to wit: Cannab[in]oids and did introduce said substance into his body." The Amended Administrative Complaint further charges that, in engaging in such conduct, Respondent violated "the provisions of Section 943.1395(6),(7), Florida Statutes and Rule 11B-27.0011(4)(c) and/or (d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character."

          Pertinent Statutory Provisions

          
          

      27. Section 943.13(7), Florida Statutes, provides that any person employed or appointed as a correctional officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

          
          

      28. Section 943.1395(7), Florida Statutes, authorizes the Commission to revoke the certification of, and/or impose lesser penalties upon, a correctional officer who has failed to maintain "good moral character . . . as required by s. 943.13(7)."

          
          

          Burden of Proof

          
          

      29. In those cases where revocation or suspension of a correctional officer's certification is sought based on his alleged failure to maintain "good moral character," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation,

          592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

          
          

          Lack of "Good Moral Character" Defined

          
          

      30. "Moral character" is

          
          

          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.

          
          

          Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A person demonstrates a lack of "good moral character" when he engages in "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." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).

          
          

      31. The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides in pertinent part as follows:

          
          

          (4) For the purpose of the Commission's implementation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., a certified officer's failure to

          maintain good moral character, as required by Subsection 943.13(7), is defined as: . . .

   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, or

   4. The unlawful use of any of the controlled substances enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C.

Unnecessary or Excessive Use of Force = Lack of "Good Moral Character"

1. A correctional officer who intentionally uses physical force against an inmate under his supervision is guilty of failing to maintain "good moral character," as defined in Rule 11B-27.0011(4), Florida Administrative Code, if the force used is unnecessary or excessive.

   
   

2. Physical force used by a correctional officer is not excessive if it is reasonably necessary to protect the officer or another against the imminent use of force, to overcome an inmate's physical resistance to a lawful command or to otherwise properly discharge the officer's duties and responsibilities as a correctional officer.

   
   

3. To determine whether the force used was unnecessary or excessive all of the circumstances surrounding the incident must be examined. Cf. B.R. v. Department of Health and Rehabilitative Services, 558 So.2d 1027, 1029 (Fla. 2d DCA 1989)("Whether corporal punishment [of a child] is excessive must be proved in each case by competent, substantial evidence, and all relevant issues presented must be considered without resort to arbitrary presumptions").

   
   

   Allegations of Unnecessary and/or Excessive Force Proven

   
   

4. An examination of all of the circumstances surrounding Respondent's March 20, 1991, altercation with Hornick clearly and convincingly reveals that there was no reasonable need or justification for Respondent's use of force against the inmate.

   
   

5. Accordingly, in using such force, Respondent evinced a lack of "good moral character," as alleged in the Amended Administrative Complaint, and therefore is subject to disciplinary action pursuant to Section 943.1395(7), Florida Statutes.

   
   

   Use of Marijuana = Lack of "Good Moral Character"

   
   

6. Marijuana or cannabis is among the controlled substances "enumerated is section 893.13, F.S. or 11B-27.00225, F.A.C."

   
   

7. Its unlawful use by a correctional officer therefore constitutes a failure on the part of the officer to maintain "good moral character," as defined in Rule 11B-27.0011(4)(d), Florida Administrative Code.

   
   

   Allegations of Use of Marijuana Proven

8. The evidence clearly and convincingly establishes that Respondent knowingly and voluntarily engaged in the unlawful use of marijuana in the spring of 1991, during the time that he was serving the ten-day suspension he had received from the County for having used excessive force against Hornick.

   
   

9. In so doing, Respondent evinced a lack of "good moral character," as alleged in the Amended Administrative Complaint, and therefore is subject to disciplinary action pursuant to Section 943.1395(7), Florida Statutes.

   
   

   Penalties

   
   

10. Pursuant to Section 943.1395(7), Florida Statutes, the Commission has the authority to impose one or more of the following penalties upon an officer who has failed to maintain "good moral character" following his certification:

    
    

    1. Revocation of certification.

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

    3. 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.

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

    5. Issuance of a reprimand.

       
       

11. Section 943.1395(8)(d), Florida Statutes, mandates that, in determining which of these penalties should be imposed, the hearing officer shall

    
    

    1. Adhere to the disciplinary guidelines and penalties set forth in . . . the rules adopted by the commission for the type of offense committed.

    2. Specify in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

    
    

    Section 943.1395(8)(d), Florida Statutes, further provides that "[a]ny deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify aggravation or mitigation of the penalty [and that such deviation] must be explained in writing by the hearing officer."

    
    

12. The Commission's "disciplinary guidelines and [prescribed] penalties" are found in Rule 11B-27.005, Florida Administrative Code, which provides in pertinent part as follows:

    
    

    1. The Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the

       Commission to have violated section 943.13(7),

       F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties which will be imposed for particular violations of section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in paragraph (4), herein. The disciplinary guidelines are

       based upon a single count violation of each provision listed. Multiple counts of violations of section 943.13(7), F.S., will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e.,

       suspension or 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 section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines: . . .

       1. For the perpetration by the officer of an act or conduct which would constitute any of the misdemeanor offenses as described in 11B-27.0011(4)(b), F.A.C., but where there

          was not a violation of section 943.13(4), F.S., the action of the Commission shall be to

          impose a penalty ranging from probation to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following: . . .

          
          

          2. Battery (784.03 F.S. - Suspension . . .

          
          

          11. Possess or Deliver w/o Consideration not more than 20 grams of Cannabis (893.13, F.S.)- Revocation . . .

          
          

       2. 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 11B-27.0011(4)(c), F.A.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 issuance of a reprimand to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following: . . .

       Excessive Use of Force, Under the Color of Authority- Suspension . . .

       
       

       (d) Notwithstanding paragraph (4), below, for the unlawful use by the officer of any of the controlled substances enumerated in

       section 893.13 F.S. or 11B-27.00225 F.A.C., as

       described in 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose the penalty of revocation.

       
       

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by evidence presented . . . to a hearing officer if pursuant to Section 120.57(1), F.S., 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 aggravating or 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 employment 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;

       18. Whether the misconduct was motivated by unlawful discrimination;

       19. Prior Letter of Guidance;

       20. The effect of disciplinary or remedial action taken by the employing agency and/or recommendations of employing agency administrator.

    
    

13. Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the Hearing Officer is of the view that, given the absence of clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, the Commission should discipline Respondent for his having failed to maintain "good moral character," as alleged in the Amended Administrative Complaint, by revoking his certification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a correctional officer as punishment therefor.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of October, 1993.

STUART M. LERNER

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 11th day of October, 1993.

ENDNOTES

1/ At hearing, Petitioner requested leave to amend the Amended Administrative Complaint to reflect the correct spelling of this word: "cannabinoids." The request was granted without objection.

2/ Section 943.13(4), Florida Statutes, requires that the officer "[n]ot have been convicted of any felony or misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed

Forces of the United States." No violation of Section 943.13(4), Florida Statutes, is involved in the instant case.

3/ Section 784.03, Florida Statutes, provides in pertinent part as follows:

(1) A person commits battery if he :

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to an individual.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7435

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in Petitioner's proposed recommended order:

1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

13. Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.

14-25. Accepted and incorporated in substance.

COPIES FURNISHED:

D. David Sessions, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Sandy L. Mack

1908 Boston Avenue Apartment A

Fort Pierce, Florida 34950

A. Leon Lowry, II, 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

Michael Ramage, Esquire General Counsel

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 of time 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: 92-007435

Orders for Case No: 92-007435