STATE OF FLORIDA

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. CASE NUMBER:11441

DOAH NUMBER: 98-0604

DOCK HEIDELBERG, JR.,

Certificate No.: 48931

Respondent.

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FINAL ORDER

This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on July 2, 1998, in Ponte Vedra Beach, Florida. It was alleged by Administrative Complaint that the Respondent had violated specified sections of Chapter 943, Florida Statutes, and Chapter 11B-27, Florida Administrative Code. In accordance with §§

120.569 and 120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was submitted by an administrative law judge from the Division of Administrative Hearings to the Commission for consideration. The Petitioner filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.

The Commission has reviewed the entire record of the formal hearing, has heard the arguments of the parties and is otherwise fully advised in the matter. The Commission's findings are set forth below.

1. Standards for Review

   
   

   Under §120.57(1 )(j), Florida Statutes, the Commission may reject or modify the administrative law judge's conclusions of law and interpretations of the Commission's administrative rules in the Recommended Order. The Commission, however, may not reject or modify the administrative law judge's findings of fact unless the Commission determines from a review of the entire

   record, and states with particularity in this Final Order, that

   1 ) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with essential requirements of the law.

   
   

   The Florida Supreme Court, in De Groot v. Sheffield, 95 So.

   2d 912, 916 (Fla. 1957), defined "competent substantial evidence" to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."

   
   

   Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985).

   
   

   Nor may the Commission reduce or increase the recommended penalty in the Recommended Order without first reviewing the complete record and without stating with particularity its reasons therefor in the Final Order. §120.57(1)(j), Florida Statutes.

   
   

2. Rulings on Exceptions

   
   

   The Petitioner filed exceptions to the administrative law judge's recommended penalty, and conclusions of law supporting that recommendation, in the Recommended Order. The Commission finds that the Petitioner's exceptions are well taken and rejects the administrative law judge's conclusions of law in paragraphs 17, 18 and 20 in whole and paragraph 19 in part. In addition, the Commission rejects the administrative law judge's recommended penalty.

   
   

   Specifically, the Petitioner excepts to the administrative law judge's conclusion of law in paragraph 17 that "Rule 1 18- 25.005(7) [sic], Florida Administrative Code, codifies the Commission's policy to impose penalties in increasing order of severity . . ." The Petitioner is absolutely correct. The plain language of Rule 1 18-27.005(7) states: "The Commission shall impose one or more of the following penalties, listed in increasing order of severity . . ." The rule means exactly what is says, that is, the rule is a listing of available disciplinary penalties from least severe to most severe. That's all. The appropriate penalty for a particular act of misconduct is addressed in the Commission's disciplinary guidelines --

   which are required by §943.1 395(8)(a), Florida Statutes, and are found in Rule 1 18-27.005(5), Florida Administrative Code.

   
   

   The Commission rejects the administrative law judge's conclusions of law in paragraph 18 as being a misapplication of the statutory "good moral character" requirement for criminal justice officers and the Commission's disciplinary guidelines in Rule 1 18-27.005(5), Florida Administrative Code. The Commission has long had a "zero-tolerance" policy toward abuse of controlled substances by criminal justice officers. Nothing in this case warrants a deviation from that policy.

   
   

   The Commission likewise rejects the administrative law judge's finding of multiple mitigating factors and the weighing of those mitigating factors with aggravating factors in paragraphs 19 and 20. The mitigating factors found by the administrative law judge are inappropriate for the instant offense. Abuse of illegal drugs presents a unique threat to criminal justice officers who enforce criminal laws and are custodians of persons who are accused and convicted of violating criminal laws. Therefore, as reflected in its disciplinary guidelines, the Commission has a long-held policy of revoking the certification of any criminal justice officer who is caught illegally possessing, selling or abusing a controlled substance.

   
   

   Since the Commission's disciplinary guidelines provide for revocation of the Respondent's criminal justice certification, it is not necessary to find aggravating circumstances in this matter. However, the two aggravating circumstances found by the administrative law judge -- the severity of the misconduct and the deterrent effect of the recommended penalty -- are sufficient justification for the penalty of revocation of the Respondent's criminal justice certification called for in the Commission's disciplinary guidelines. CJSTC v. Bradley, 596 So. 2d 661 (Fla. 1992). The mitigating factors found by the administrative law judge do not alter the Commission's conclusion that revocation is the appropriate penalty in this case.

   
   

3. Findings of Fact

   
   

   The administrative law judge's findings of fact in paragraphs 1 through 6 of the Recommended Order are approved, adopted and incorporated herein by reference.

   
   

4. Conclusions of Law

   The administrative law judge's conclusions of law in paragraphs 7-16 and the aggravating factors found in paragraph

   19 of the Recommended Order are approved, adopted and incorporated herein by reference. The Administrative law judge's conclusions of law in paragraphs 17, 18 and the remainder of paragraph 19 are rejected.

   
   

5. Recommended Penalty

After a review of the complete record and for the reasons set forth in Part m of this Final Order, the Commission rejects the administrative law judge's recommended penalty.

It is therefore ORDERED AND ADJUDGED that the Respondent's above-referenced criminal justice certification is hereby REVOKED.

This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.

SO ORDERED this 21st day of July, 1998.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

RICHARD C. COFFEY CHAIRMAN

NOTICE

THIS ORDER CONSTIUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302- 1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE

9.11 0, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHINN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

Docket for Case No: 98-000604

Orders for Case No: 98-000604