STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2909

)

BURTON B. GRIFFIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on December 13 and 14, 1995, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street

Jacksonville, Florida 32202-2715

For Respondent: T. A. Delegal, III, Esquire

5530 Beach Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

The issue is whether respondent's law enforcement certificate should be disciplined for the reasons given in the amended administrative complaint filed on September 14, 1994.

PRELIMINARY STATEMENT

This matter began on December 16, 1993, when petitioner, Criminal Justice Standards and Training Commission, issued an administrative complaint charging respondent, Burton B. Griffin, a certified law enforcement officer, with having demonstrated "a lack of good moral character" in contravention of the law.

Respondent denied the allegations and requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on May 25, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

On September 14, 1994, petitioner filed an amended administrative complaint in which the following allegations were lodged: (a) on October 26, 1992, respondent "did unlawfully and knowingly possess drug paraphernalia, to wit: crack pipe(s) which were found in his assigned police vehicle which were not documented nor turned into the Property Room," (b) on July 13, 1992, respondent "was also in possession of a crack pipe which he kept in his possession until

three (3) days later until deciding to charge an individual with possession of drug paraphernalia," and (c) on July 16, 1992, respondent "knowingly falsified or caused another to falsify an official record or official document." The final hearing concerned these amended charges.

By notice of hearing dated June 22, 1994, a final hearing was scheduled on August 10, 1994, in Jacksonville, Florida. At petitioner's request, the matter was continued to November 17, 1994. The case was then placed in abeyance pending the submission of a stipulation to the agency. When the stipulation was not accepted, the matter was rescheduled to December 13 and 14, 1995, at the same location.

At final hearing, petitioner presented the testimony of Don Retzer, a sergeant with the Jacksonville Sheriff's Office; Thomas D. Kypke, a former officer with the Jacksonville Sheriff's Office; Larry W. Sparkman, a sergeant with the Jacksonville Sheriff's Office; and Roy Henderson, a sergeant with the Jacksonville Sheriff's Office. Also, it offered petitioner's exhibits 1-11.

All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of John Hartley, a lieutenant with the Jacksonville Sheriff's Office; Lyndal H. Sweeney, a sergeant with the Jacksonville Sheriff's Office; J. D. Warren, a lieutenant with the Jacksonville Sheriff's Office; Joseph G. Stelma, a former captain with the Jacksonville Sheriff's Office; Mack Bowen, asst. division chief with the Jacksonville Sheriff's Office; and Bobby L. Deal, a sergeant with the Jacksonville Sheriff's Office. Also, he offered respondent's exhibits 1-6. All exhibits were received in evidence.

At hearing, a ruling was reserved on respondent's motion to dismiss the complaint and is discussed in the conclusions of law portion of this order.

The transcript of hearing (two volumes) was filed on January 8, 1996. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to February 8, 1996. Proposed orders were filed by petitioner and respondent on January 29 and February 5, 1996, respectively.

A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Burton B. Griffin, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 56974 on August 3, 1979. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO).

   
   

2. This controversy involves charges that respondent (a) unlawfully possessed drug paraphernalia in October 1992, (b) unlawfully possessed a crack pipe in July 1992, and (c) falsified an arrest and booking docket for one Beverly Hay in July 1992.

   
   

3. In 1991, respondent was assigned to the Zone 3 Community Problem Response Team (team). The team, which consisted of 6 to 8 officers at any given time, worked the "core city downtown" area, which was the most crime-ridden, dangerous and violent part of the City. As a member of the team, respondent

   often engaged in the dangerous task of performing undercover narcotics work, which required him to make undercover purchases of drugs from local dealers. Through undercover assignments, he also apprehended local prostitutes.

   
   

4. In order to effectively carry out his responsibilities as an undercover agent, respondent was required to wear disguises, which included such "props" as civilian clothes, a beard, and glasses. In addition, respondent would drive an unmarked car and carry a bottle of liquor and crack pipes. The pipes were placed in the ashtray of the car and in his shirt pocket to convince the drug dealer that respondent was a "street person" and not an undercover law enforcement officer. When not being used, the props were kept in a bag in the trunk of the vehicle.

   
   

5. On July 13, 1992, respondent and his partner were flagged down by a female prostitute named Beverly Hay on a downtown street. After solicting respondent, Hay was told she would be charged with prostitution, a misdemeanor. She was also in possession of what appeared to be a crack pipe, another misdemeanor.

   
   

6. Hay had a previous record of prostitution arrests, and she did not want to be incarcerated for a long period of time. In return for not being arrested, she agreed to act as a confidential informant and make purchases of drugs from various crack houses in the neighborhood. With this information, JSO could then obtain search warrants for each of the illicit houses.

   
   

7. After obtaining the approval of his supervisor not to arrest Hay, respondent released Hay but gave her his pager number and instructions to call him as soon as she was ready to make a buy. Respondent kept the crack pipe in his vehicle as leverage to insure that Hay would fulfill her side of the agreement. In other words, if she did not fulfill her part of the agreement, the pipe would then be used as evidence to arrest her for possession of drug paraphanalia at a later date. Before she was released, Hay was told that this would happen. This type of arrangement was not unusual for officers working in undercover narcotics.

   
   

8. As of July 16, 1992, Hay had still not provided the agreed upon assistance. That evening, respondent observed Hay in the 700 block of West Monroe Street. After apprehending her, respondent learned that Hay did not intend to provide any assistance. Accordingly, he prepared an arrest and booking report in which he stated that Hay was being arrested for possession of the crack pipe which he had found on her three days earlier. In the "narrative" portion of the report, however, respondent stated that Hay had the pipe in her possession on July 16, rather than the correct day of July 13. The report and crack pipe were filed with the JSO, and Hay served approximately 16 days in jail before being released.

   
   

9. Respondent filled out the report in this manner because both he and his partner were unsure how to fill out a "deferred arrest" for a misdemeanor offense. Indeed, while most witnesses in this case were generally familiar with the procedure for a felony deferred arrest, no one had ever made a deferred arrest for a misdemeanor.

   
   

10. The report would have been accurate had respondent simply stated that Hay was arrested with the pipe on July 13, released that day on the condition that she would provide information, and after failing to perform under her agreement, she was again arrested on July 16 for the original offense.

11. Respondent candidly acknowledged that in hindsight he was wrong and had used poor judgment in filling out Hay's arrest report in the manner that he did. Even so, there was no intent on his part to intentionally violate any JSO policy, Commission rule or state law. More specifically, he did not intend to falsify an official record as charged in the administrative complaint. Rather, the report was incorrectly prepared due to respondent's lack of knowledge on how to make a deferred misdemeanor arrest.

    
    

12. On October 27, 1992, the JSO internal affairs section searched all team vehicles. While searching respondent's vehicle, the section found two crack pipes (and other props) that were used by respondent during his undercover work. Even if the pipes were used as props, under a JSO general order the pipes should have been returned to the property room at the end of each shift. By failing to turn them in, respondent unintentionally violated the JSO policy. In addition, by not turning in the Hay pipe for three days until she was arrested, respondent unintentionally violated the same policy.

    
    

13. Respondent had found the two pipes used as props laying on a street during one of his many sweeps of known drug areas. Since they were necessary props for his undercover work, he kept them in a bag with his other props. Although the JSO had an informal policy calling for paraphanalia to be checked out of the property room before each undercover assignment, respondent was unaware of this requirement, and he knew of no other officer who had ever done the same. In addition, respondent believed the items had no intrinsic value, and under another JSO general order, unclaimed property having no intrinsic value did not have to be turned into, or checked out of, the property room.

    
    

14. At the same time respondent was using the pipes as props, it was common knowledge among JSO officers that another JSO strike force, with its supervisor's approval, was using similar props without turning them into the property room each day. Therefore, it is found that respondent could have reasonably believed he was not violating any general order by keeping his props in a bag in the trunk of his vehicle. In any event, there is no suggestion, or even a hint, that the three pipes were used for any purpose other than official police business.

    
    

15. For violating a general order pertaining to "Competency and the Handling of Evidence," respondent received a written reprimand and a limited suspension of sixty working days in 1993. The JSO did not sustain the allegations pertaining to unlawful possession of contraband and falsifying a report.

    
    

16. Under Rule 11B-27.003(2), Florida Administrative Code, the employing agency (JSO) is required to forward to the Commission a completed form reflecting only those violations that are sustained. For reasons unknown, in the form filed with the Commission, the JSO internal affairs section incorrectly recited that all allegations had been sustained. Thereafter, the Commission issued an administrative complaint, as amended, seeking disciplinary action against respondent's law enforcement certification for the unsustained allegations.

    
    

17. Except for the discipline meted out by JSO in 1993, respondent has had an exemplary career as a law enforcement officer, having served with various departments since 1979. He has continued his employment with the JSO since this incident and is now in a position of special trust as an evidence technician.

    At hearing, his superiors lauded his integrity, honesty, work ethic and dedication as a police officer.

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Because respondent's law enforcement certification is subject to suspension or revocation, petitioner must prove the allegations in the complaint by clear and convincing evidence. See, e. g., Newberry v. Fla. Dept. of Law Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991).

    
    

20. By the amended complaint, respondent is charged with violating "the provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B- 27.001(4)(a), (b), and/or (c), Florida Administrative Code, in that (he) has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character." The failure to maintain good moral character is based on the premise that (a) on October 27, 1992, respondent unlawfully possessed drug paraphanalia, namely, two crack pipes, (b) from July 13 until July 16, 1992, respondent unlawfully possessed a crack pipe taken from Beverly Hay, and (c) on July 16, 1992, respondent falsified the arrest and booking docket of Beverly Hay.

    
    

21. Petitioner has clearly established that respondent failed to comply with a JSO general order requiring that an officer turn evidence into the property room by the end of his duty shift. But the specific allegation here is that respondent "unlawfully" possessed "drug paraphanalia," thereby violating the requirement that he have "good moral character." The pipes are, of course, drug paraphanalia within the meaning of Section 893.145(12), Florida Statutes. However, to prove that such possession was unlawful, as required by Section 893.147, Florida Statutes, petitioner must show that respondent used, or intended to use, drug paraphanalia "to inject, injest, inhale, or otherwise introduce into the human body a controlled substance in violation of (chapter 893)." There being no such evidence, the charges in paragraphs 2.(a) and (b) of the amended complaint must necessarily fail.

    
    

22. The amended complaint also alleges that on July 16, 1992, respondent "falsified" an official record, namely, the "arrest and booking docket of Beverly Hay charging her with prostitution and possession of drug paraphanalia." However, the arrest and booking report received in evidence shows only that Hay was charged with possession of drug paraphanalia, but not prostitution. In any event, the charge clearly implies that respondent intentionally falsified an official record, an allegation requiring a finding of wrongful intent or scienter. But the facts in paragraphs 9 and 11 show otherwise and indicate that the report was incorrectly prepared due to respondent's lack of knowledge on how to secure a deferred misdemeanor arrest. There being a lack of wrongful intent or scienter on the part of respondent, the final charge should also be dismissed.

    
    

23. Finally, respondent has moved to dismiss this matter on the theory the charges were improperly forwarded by the JSO to the Commission and thus it lacks jurisdiction to hear the case. There is no response to the motion. Under the statutory scheme in Section 943.1395(5), Florida Statutes,

    
    

    the employing agency (JSO) must conduct an internal investigation if it has cause to

    suspect that an officer is not in compliance with, or has failed to maintain compliance with s. 943.13(4) or (7). If an officer is not in compliance with s. 943.13(4) or (7), the employing agency must submit the invest- igative findings and supporting information to the commission in accordance with rules adopted by the commission.

    
    

    Rule 11B-27.003(2), Florida Administrative Code, which implements the foregoing statute, provides that

    
    

    if the allegations are sustained by the employing agency, the employing agency shall complete an Internal Investigation Report form CJSTC-78 (and forward to the Division the complete investigative file) . . . If the employing agency concludes that the allegations are not sustained, unfounded, or the officer has been exonerated, or the allegations are only violations of the employing agencies' policies which are not violations of subsections 943.13(4), or

    943.13(7) or Rule 11B-27.0011(4), F.A.C., the

    employing agency should complete form CJSTC-78, but maintain the completed form on file at the (employing) agency.

    
    

    The statute and rule contemplate, then, that sustained allegations be forwarded to the Commission with an investigative report but that unsustained violations be kept on file at the employing agency. At the same time, presumably the employing agency must make a preliminary determination as to whether it believes the allegations violate state law and Commission rules, or whether they simply constitute a violation of local agency policy. However, there can be no violation of section 943.1395(5) or rule 11B-27.003(2) if the employing agency forwards even "minor" sustained allegations since the Commission (and not the employer) is the agency charged by law with interpreting its statutes and rules and adjudicating disputes arising under subsection 943.13(7).

    
    

24. Having received the JSO investigative file with the notation that all allegations had been sustained, the Commission had appropriate authority and jurisdiction to make a preliminary decision that any one of the allegations, or all of them, constituted a violation of state law and Commission rules. While arguably the JSO may have made an error in procedure by incorrectly characterizing all allegations as being sustained, it was not shown that this error impaired the fairness of the proceeding, or that respondent was prejudiced in the defense of his case. Accordingly, the motion to dismiss is denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the

administrative complaint, with prejudice.

DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 16th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2909

Petitioner:

1-3. Partially accepted in finding of fact 1.

4. Partially accepted in finding of fact 4. 5-8. Partially accepted in finding of fact 12. 9-13. Rejected as being unnecessary.

1. Partially accepted in finding of fact 12.

2. Rejected as being unnecessary.

3. Rejected as recitation of testimony.

4. Partially accepted in finding of fact 12. 18-24. Rejected as recitation of testimony.

25. Rejected as being irrelevant.

26-27. Rejected as being recitation of testimony. 28-29. Partially accepted in finding of fact 8.

1. Partially accepted in finding of fact 9.

2. Covered in preliminary statement.

3. Rejected as being unnecessary.

33 Rejected as being irrelevant.

34-49. Rejected as being recitation of testimony.

1. Partially accepted in finding of fact 11.

2. Rejected as being recitation of testimony.

Respondent:

1. Partially accepted in findings of fact 1 and 17.

2. Partially accepted in finding of fact 17.

3. Partially accepted in finding of fact 3. 4-7. Rejected as being unnecessary.

8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4.

11. Partially accepted in finding of fact 14.

12-14. Partially accepted in findings of fact 12 and 13. 15-16. Partially accepted in findings of fact 13.

17. Rejected as being unnecessary.

18-29. Partially accepted in findings of fact 5-11.

30-34. Partially accepted in findings of fact 15 and 16.

35. Partially accepted in finding of fact 11. 36-42. Partially accepted in finding of fact 17.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law.

COPIES FURNISHED:

Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street

Jacksonville, Florida 32202-2715

T. A. Delegal, III, Esquire 5530 Beach Boulevard Jacksonville, Florida 32207

A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards

and Training Commission

P. O. Box 1489

Tallahassee, Florida 32302-1489

Michael R. Ramage, Esquire Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 94-002909

Orders for Case No: 94-002909