STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1807

)

RICHARD A. BOVA, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on April 22, 1994, in Gainesville, Florida.

APPEARANCES

For Petitioner: Pauline Ingreham-Drayton

Attorney at Law

Florida Department of Law Enforcement 711 B Liberty Street

Jacksonville, Florida 32202

For Respondent: Richard Bova, Jr., Pro Se

624 Southwest 70th Terrace Gainesville, Florida 32608

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 9, 1992, Petitioner charged Respondent, who is certified by Petitioner as a correctional officer in the State of Florida, with actual or constructive possession of marijuana and unlawful possession of marijuana with intent to sell one ounce of the drug.

Respondent denied the factual allegations of the Administrative Complaint and demanded a formal administrative hearing with regard to those allegations. Consequently, the matter was forwarded to the Division of Administrative Hearings for conduct of further proceedings.

On January 24, 1994, counsel for Respondent noticed his withdrawal from further representation of Respondent in this matter. On January 31, 1994, Respondent failed to appear at the final hearing convened on that date, later alleging a misunderstanding in directions provided to him by counsel for

Petitioner. Subsequent to that hearing, the parties requested, by motion filed February 10, 1994, that the record of the final hearing be re-opened for a complete re-presentation of evidence by the parties. The motion was granted and final hearing was again convened on April 22, 1994.

At the formal hearing, Petitioner presented the testimony of three witnesses. Respondent presented testimony of two witnesses, including himself. Four of the exhibits presented by Respondent were admitted into evidence.

A final transcript of the proceedings was filed with the Division of Administrative Hearings on May 18, 1994. Rulings on the proposed findings of fact submitted by Petitioner are set forth in the Appendix to this Recommended Order. No proposed findings were timely submitted by Respondent, and none had been received at the time of preparation of this recommended order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02.

   
   

2. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area.

   
   

3. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees.

   
   

4. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her.

   
   

5. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana.

   
   

6. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing.

7. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises.

   
   

8. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint.

   
   

9. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida.

   
   

10. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the

    trier of fact the firm belief of (sic) 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).

13. By Paragraph 2 of its Administrative Complaint, Petitioner alleged certain facts of wrongdoing by Respondent which Petitioner contends provide the basis for the disciplining of Respondent's correctional officer certification. Specifically, the Administrative Complaint alleged that Respondent violated the provisions of Section 943.1395(5),(6), Florida Statutes, and of Rule 11B- 27.0011(4)(a) and (c), Florida Administrative Code, and that, consequently, he had failed to maintain the good moral character required of a correctional officer by Section 943.13(7), Florida Statutes.

    
    

14. Based on the foregoing findings of fact, it is concluded that Petitioner has not established the factual allegations of the Administrative Complaint by clear and convincing evidence. Consequently, Petitioner has failed to establish that Respondent lacks the good moral character required of law enforcement officers.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994.

DON W. DAVIS

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 10th day of June, 1994.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings 1-2 Accepted.

3-4 Rejected, the transcript reference shows that Respondent was arrested

on February 5, 1991, following the May, 1990 incident.

5-6 Accepted.

7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity.

1. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself.

2. Rejected, relevance.

3. Accepted.

4. Rejected, relevance.

5. Accepted.

6. Rejected, weight of the evidence.

Respondent's Proposed Findings None submitted.

COPIES FURNISHED:

Pauline Ingreham-Drayton Attorney at Law

Florida Department of Law Enforcement

711 B Liberty Street Jacksonville, Florida 32202

Richard Bova, Jr.

624 S.W. 70th Terrace Gainesville, Florida 32608

Leon Lowry, Director Criminal Justice Standards

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 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 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: 93-001807

Orders for Case No: 93-001807