STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4206

)

SIMON L. MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 10, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57, Florida Statutes (1996 Supp.). The hearing location was Starke, Florida. Charles C. Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: Simon L. Mitchell, pro se

Route 3, Box 334

Starke, Florida 32091

STATEMENT OF THE ISSUE

Should Petitioner discipline Respondent for his alleged involvement with a drug transaction based upon Respondent’s failure to maintain good moral character?

PRELIMINARY STATEMENT

Petitioner through an administrative complaint in Case No. 9942 charged Respondent with violations of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(a) and (c), Florida Administrative Code, for failing to maintain qualifications established in Section 943.13(7), Florida Statutes, that requires a correctional officer in the state of Florida to have good moral character. Respondent disputed the allegations in the administrative complaint. The case was referred to the Division of Administrative Hearings to resolve the dispute. A hearing was held on the aforementioned date for that purpose.

At hearing Petitioner presented the testimony of Katherine

1. Churchill by telephone, and Investigator Angel Allen, Police Officer Clarence Shuler, Lieutenant Gerald Gonzales and Inspector Michael F. Page testified in person on behalf of the Petitioner. Petitioner’s exhibits one, two, five and six were admitted. Respondent testified in his own behalf and presented the testimony of Corrections Officer Bruce Elwood Flowers.

   On March 10, 1997, a hearing transcript was filed with the Division of Administrative Hearings. On March 19, 1997, Petitioner filed proposed findings of fact and conclusions of law. Earlier Respondent had submitted a letter in mitigation and with a recommendation concerning the disposition in this case.

   Both filings have been considered in preparing the recommended order.

   FINDINGS OF FACT

   
   

   1. Petitioner licensed Respondent as a corrections officer on September 18, 1987. He holds corrections certificate number 81237.

   2. Respondent was employed as a corrections officer with the Sumter Correctional Institution from December 3, 1993, through June 9, 1994.

   3. In August, 1993, Respondent was the subject of a law enforcement investigation in which the DEA was the lead investigating agency. The investigation also involved Florida law enforcement agencies. The principle law enforcement personnel responsible for the investigation were certified in Florida. Investigation took place in Bradford County, Florida.

   4. The arrangement involved in the investigation was one in which Angel Allen, a police officer with the University of Florida police department, together with a confidential informant, contacted Respondent for purposes of purchasing drugs.

   5. The initial contact between Officer Allen, the confidential informant and Respondent was made on August 10, 1993. They met at a convenience store in Starke, Florida. At that time the confidential informant, who was known to the Respondent, introduced Officer Allen who was using an assumed name. Respondent then instructed the confidential informant to

      follow him. The parties went to a residential location off Lawtey Road. Respondent was in his vehicle, Officer Allen and the confidential informant followed in the confidential informant’s vehicle.

   6. Respondent entered the residence and passed another person who was coming out of the residence. The other person said to Respondent “I don’t know where its at.” Respondent entered the residence and then came back out and got into the car driven by the confidential informant. He sat next to Officer Allen on the passenger side. Respondent told the driver to proceed to the end of the block, and make a left, and then another left, and stop where a subject was standing on the street. Respondent then rolled down the window and spoke to a man who was standing there. Respondent used several names in referring to the individual during the conversation that ensued. Respondent instructed that individual to go around to the drivers side. When the individual reached the drivers side the confidential informant asked him how much an “eight ball” was, that is a street term referring to a certain amount of powdered cocaine. The man replied “two.” This refers to $200. The confidential informant handed the man $200. In turn the man gave the confidential informant a small plastic bag containing 2.406 grams of cocaine hydrochloride total net. The drug transaction took place in Respondent’s presence. Once purchased the confidential informant showed the cocaine to Respondent and asked

      if the drug seller had done her right. Respondent replied “yes.” The parties then returned to what was believed to be Respondent’s residence and he exited the vehicle.

   7. On August 17, 1993, further contact was made between Officer Allen, the confidential informant and Respondent. Respondent was reached through his pager. He returned the call to Officer Allen and the confidential informant and instructed them to come by his house in Starke, Florida. The purpose of the contact with Respondent was to purchase additional cocaine. When Officer Allen and the confidential informant arrived at Respondent’s house he entered their vehicle and sat next to Officer Allen and directed the confidential informant to the same location where the cocaine had been purchased on August 10, 1993.

   8. When the parties arrived at that location there was a person on a bicycle. The bicyclist came to the drivers side and Officer Allen gave the bicyclist $200, in return for cocaine which the bicyclist handed to the confidential informant, who in turn handed it to Officer Allen. Again the transaction took place in full view of Respondent. During this transaction Respondent made some comment to the effect of getting together with Officer Allen and the confidential informant and partying with them and having a “blow-out.” Respondent said that he had been “staying away from the stuff” referring to the cocaine, but that he would like to get together with the confidential

      informant and Officer Allen and have a “blow-out” in a couple of weeks.

   9. The bicyclist was the same person who had sold the parties drugs on August 10, 1993. On August 17, 1993, Respondent referred to that individual as “Frank,” a name that he had used in referring to the drug seller on the previous occasion. Respondent on this occasion stated that “Frank is good guy.” Respondent said that “Frank” was an up front guy and that he would make it right if it wasn’t right, referring to the cocaine if it wasn’t the correct amount, that “Frank” would make it the right amount of cocaine. After the transaction, Officer Allen and the confidential informant drove Respondent to what was believed to be his residence.

   10. The item that was purchased from “Frank” on August 17, 1993, was cocaine hydrochloride, 1.848 grams total net.

   11. Following these events, Respondent voluntarily gave a statement to Michael F. Page, Regional Inspector Supervisor with the Florida Department of Corrections, in which Respondent admitted being involved in the drug transactions. The statement was taken through a taped interview. In this statement, Respondent acknowledged knowing the drug seller “Frank” and that “Frank” was a person who sold drugs in the neighborhood. Respondent also admitted that he knew the purpose of the visits to the neighborhood was for the confidential informant to obtain

       drugs and that he took the confidential informant to a place where drugs were dealt.

   12. Respondent’s comment’s during the interview in which he said that his reason for accompanying Officer Allen and the confidential informant in purchasing drugs was to protect the confidential informant given the nature of the neighborhood, does not excuse Respondent’s conduct.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes (1996 Supp.).

   14. Having accused Respondent of violating conditions of his certification, Petitioner must prove its allegations by clear and convincing evidence.

   15. The administrative complaint accuses Respondent of unlawfully and knowingly aiding or abetting the sale, delivery or possession of a controlled substance, to wit, cocaine on August 10, 1993 and August 17, 1993. This conduct is alleged to have violated the requirement that Respondent maintain good moral character as referred to in Rule 11B-27.0011(4), Florida Administrative Code. Thus, Respondent is subject to having his corrections certificate number 81237 disciplined in accordance with Section 943.1395(6) and (7), Florida Statutes.

   16. Section 943.1395(6), Florida Statutes makes no reference to the opportunity to discipline a certificate holder

       for failure to maintain good moral character. By contrast, Section 943.1395(7), Florida Statutes allows the Petitioner to impose discipline if clear and convincing evidence is shown that the certificate holder did not maintain good moral character as defined by Rule 11B-27.0011, Florida Administrative Code, as required by Section 943.1395(7), Florida Statutes. The possible discipline includes revocation or a lessor penalty.

   17. Clear and convincing evidence has been shown that Respondent on two occasions related to the drug transactions on August 10 and 17, 1993, committed acts constituting a lack of good moral character. In accordance with Rule 11B-27.0011(4), Florida Administrative Code, he committed acts which would constitute a felony, whether criminally prosecuted or not. Section 893.03(2), Florida Statutes names cocaine as a controlled substance. Section 893.13, Florida Statutes makes it a felony to sell, deliver or possess cocaine. Section 777.011, Florida Statutes states that:

       Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principle in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

   18. Respondent violated Section 777.011, Florida Statutes, a felony, in aiding, abetting and counseling Officer Allen, the confidential informant and the drug seller in concluding a drug

transaction involving the controlled substance cocaine as defined in Section 893.03(2), Florida Statutes and is prohibited by Section 893.13, Florida Statutes. By such acts Respondent failed to maintain good moral character as defined in Rule 11B- 27.0011(4), Florida Administrative Code. He is subject to the penalties set forth in Section 943.1395(7), Florida Statutes for failing to maintain good moral character.

RECOMMENDATION

Upon consideration of the fact finds and the conclusions of law reached it is

RECOMMENDED that a final order be entered which revokes Respondent’s correction certificate number 81237.

DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 1st day of May, 1997.

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Simon L. Mitchell Route 3, Box 334

Starke, FL 32091

Simon L. Mitchell Post Office Box 63 Starke, FL 32091

A. Leon Lowry, II, Director Department of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, FL 32302

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 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: 96-004206

Orders for Case No: 96-004206