STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2186

)

CHARLES K. KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on October 1, 1996, by telephone conference call with the parties appearing in Vero Beach, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Charles K. King

2115 79th Court

Vero Beach, Florida 32966 STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the amended administrative complaint dated November 7, 1995; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 25, 1995, when the Petitioner, Criminal Justice Standards and Training Commission, entered an administrative complaint against the Respondent, Charles K. King. The complaint alleged that on or about March 24, 1994, the Respondent was in actual or constructive possession of cocaine. Based upon the foregoing, Petitioner alleged Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.

Thereafter, Petitioner amended the administrative complaint on November 7, 1995, to specify the provisions relied upon in asserting Respondent's alleged failure to comply with the law. Respondent executed an election of rights which disputed the material facts and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for such formal proceedings on May 8, 1996.

At the hearing, Petitioner presented testimony from: Gary Farless, a sergeant with the uniform patrol employed by the Indian River County Sheriff's Office; and, James W. Hyde, a patrol deputy also employed by the Indian River County Sheriff's Office. Petitioner's exhibit 1 was received into evidence.

Respondent testified in his own behalf and offered the testimony of Rosalinda Reyna, his fiance. Respondent's exhibits numbered 1, 2 and 3 were admitted into evidence.

The transcript of the proceeding was filed on October 28, 1996. The parties' proposed recommended orders were to be filed on or before November 7, 1996.

FINDINGS OF FACT

1. Respondent is a certified corrections officer, certificate number 68527.

   
   

2. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent.

   
   

3. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane.

   
   

4. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle.

   
   

5. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages.

   
   

6. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat.

   
   

7. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance.

   
   

8. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine.

   
   

9. The positive test was observed by Sgt. Farless and Respondent.

   
   

10. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine.

    
    

11. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine.

12. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification.

    
    

13. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance.

    
    

14. The area Respondent was traveling through is known as a high drug area with a high crime rate.

    
    

15. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 943.13(7), Florida Statutes provides, in part:

    
    

    Officers' minimum qualifications for employment or appointment

    * * *

    On or after October 1, 1984, any person employed...as a...correctional officer; shall:

    * * *

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

    
    

18. Rule 11B-27.0011(4), Florida Administrative Code, defines "good moral character." Such rules provides, in part:

    
    

    (4) For the purposes 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), F.S., is defined as:

    (a) The perpetration by the officer of an

    act which would constitute any felony offense, whether criminally prosecuted or not.

    
    

19. Section 893.13, Florida Statutes prohibits the actual or constructive possession of cocaine. The violation of said statute constitutes a felony.

    
    

20. The Petitioner bears the burden of proof in this case to establish by clear and convincing evidence that the Respondent has failed to maintain the standards for certification. It has met that burden.

    
    

21. In this case the Respondent possessed a controlled substance, cocaine. Respondent had exclusive possession of his vehicle and the driver's seat where the first crack rock was discovered in plain view during the traffic stop.

22. Deputy Hyde and Sgt. Farless observed the suspected substance and based upon their years of experience and training determined to field test it for cocaine. The field test used by Deputy Hyde is considered reliable. Given the independent judgment of the trained law enforcement officers regarding the substance in question and the reaction to the field test, the evidence is sufficient to establish Respondent perpetrated a felony as contemplated by Rule 11B-27.0011(4), Florida Administrative Code.

    
    

23. Rule 11B-27.005(5)(a), Florida Administrative Code provides the guidelines for penalties applicable to this case. Such rule provides:

    
    

    When the Commission finds that a certified officer has committed an act which violated 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 which would constitute any felony offense...the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances, include the following:

* * *

VIOLATION PENALTY

4. Possession, Sale of Controlled Substance

(893.13, F.S.) Revocation RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certification.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of January, 1997.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Charles K. King 2115 79th Court

Vero Beach, Florida 32966

A. Leon Lowry, II, Director

Division of Crim. Just. Stds. & Trng 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 within 15 days from the date of 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: 96-002186

Orders for Case No: 96-002186