STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

JERRY S. WEST, JR., )

)

Respondent. )

Case No. 03-2238PL

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was conducted in this matter on August 18, 2003, by videoconference in Pensacola, Florida, and Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Laurie B. Binder, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent is subject to discipline for violating Subsection 943.1395(6) and/or (7), Florida Statutes, and/or Rule 27.0011(4)(d), Florida Administrative Code, in that he failed to

maintain the qualifications established in Section 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 21, 2002, charging that on or about March 30, 2000, Respondent tested positive for a controlled

substance, marijuana, by blood or urine, indicative of ingestion of a controlled substance listed in Chapter 893, and that the Respondent violated the provisions of Subsection 943.1395(6) and/or (7), Florida Statutes, and Rule llB-27.0011(4)(d), Florida Administrative Code, and that Respondent failed to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, requiring that a law enforcement officer in the State of Florida possess good moral character, by testing positive for marijuana.

On or about July 22, 2002, Respondent completed an Election of Rights disputing some of the allegations of fact and requesting an administrative hearing pursuant to Section 120.57. On or about June 16, 2003, the case was referred to the Division of Administrative Hearings, and a disputed-fact hearing was noticed for August 18, 2003.

Respondent did not appear at either the Tallahassee or Pensacola video conferencing locations on August 18, 2003, despite a delay of one-half hour to see if he would arrive.

Checks in the hallways, anterooms, and via the secretary to the undersigned did not reveal any contact by Respondent.1/

At the commencement of hearing, Petitioner orally moved that Petitioner's Request for Admissions be deemed admitted and filed the unanswered requests in open court. A written Motion to the same effect was already pending. The motions were taken under advisement, and upon consideration, the Requests are deemed admitted.2/

Petitioner presented the oral testimony of Mark Jackson, Paul Hawke, Al Taylor, and Lisa Zeller.

Petitioner had admitted in evidence Exhibits P-1 (Escambia County Sheriff's Office Supplemental Offense Report, Complaint No: CF00S008039); P-2 (handwritten chain of custody of urine samples); and P-3 and P-4 (FDLE Lab Results).

At the conclusion of Petitioner's case-in-chief, another search was made for Respondent, and he still had not appeared.

A Transcript was filed on September 30, 2003. Only Petitioner timely filed a Proposed Recommended Order. That Proposed Recommended Order and the Admissions have been considered in preparation of this Recommended Order.

The facts giving rise to this case having occurred in 2000, the citations herein are as indicated.

FINDINGS OF FACT

1. Respondent was certified by the Commission on

   
   

   October 26, 1995, and was issued Law Enforcement Certificate No. 153749.

2. From October 17, 1994, to April 12, 2000, Respondent was employed as a law enforcement officer for the Escambia County Sheriff's Office.

3. On or about March 29, 2000, the Street Crimes Unit of the Escambia County Sheriff's Office seized a large quantity of marijuana, in two grades, and brought it back to the station to be photographed and placed into evidence bags. Each evidence bag was sealed with a case number and the initials of Investigator Mark Jackson.

4. When the evidence was set out for the media to see, Investigator Jackson noticed that one bag, containing the higher-grade marijuana, had been changed out. The packaging and taping had been changed; the marijuana inside the bag had been swapped out; and the handwriting and taping on the bag was different.

5. Investigator Jackson notified his supervisor of his discovery, and all of the evidence was placed in the vault. The team was sent home. Investigators Paul Hawke and John Sanderson were contacted to look into the discrepancy.

6. All fifteen members of the Street Crimes Unit, from sergeants to investigators, were asked to submit to a urinalysis as part of the internal investigation that ensued. All members of the unit, including Respondent, signed a consent for that purpose.

7. Respondent was observed as being extremely nervous about submitting to the urinalysis, stating that he had handled so much marijuana that he was afraid it would be in his system just from touching it.

8. The collection of urine samples did not occur until the day after the switch was discovered. Deputy Taylor assisted in the collection of the urine specimens, and kept notes of the times of the collections. He sealed and marked the urine samples, made notes, and delivered the samples to the Florida Department of Law Enforcement (FDLE) for testing on March 31, 2000, along with an appropriate tracking sheet.

9. Crime lab analyst Lisa Zeller ran an initial screening test, then a gas chromatography mass spectrometry test which is a confirmatory test. It confirmed the presence of tetrahydrocannabinols (TCH), a component of marijuana, in Respondent's urine, above the level of 13 nanograms. TCH is rendered contraband by Subsection 893.03(1)(c)34., Florida Statutes (1999).

10. Respondent, identified as "Exhibit Nine" on the FDLE lab report, was the only individual on the Street Crimes Squad whose urine sample tested positive for TCH.

11. Respondent did not have an explanation that was plausible to law enforcement investigators as to how the TCH could have gotten into his system. He told them he sucked the air out of bags of marijuana to, in effect, "vacuum seal" the bags. This is not a standard law enforcement technique for preserving evidence. It is not necessary to preserve the freshness of contraband for evidentiary purposes.

12. Respondent was terminated by the Escambia County Sheriff's Department because of his positive contraband drug test.

13. The State Attorney filed criminal charges against

    
    

    Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Subsection 120.57(1).

15. Section 943.13 (1999) established the minimum qualifications for certification as a law enforcement officer in Florida. Subsection (7) provides that s/he must:

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

16. Section 943.1395 (1999) established guidelines for penalties against certified officers who did not maintain good moral character, as follows, in pertinent part:

    * * *

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(4). . .

       
       

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       
       

       1. Revocation of certification.

          
          

       2. Suspension of certification for a period not to exceed 2 years.

          
          

       3. Placement on probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

          
          

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

          
          

       5. Issuance of a reprimand.

       
       

       (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission

       may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

       
       

       * * *

       
       

       (d) An administrative law judge assigned to conduct a hearing under Sections 120.569 and 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with Section 943.13(4) or (7) must, in his or her recommended order:

       
       

       1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and (7) and the rules adopted by the commission for the type of offense committed.

          
          

       2. Specify, in writing, any aggravating or mitigating circumstances that he or she considered in determining the recommended penalty.

       
       

       Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation or the penalty. Any deviation from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the administrative law judge.

       
       

17. Rule llB-27.0011, Florida Administrative Code, as in effect on March 30, 2000, provides a definition of "good moral character" for purposes of implementation of disciplinary action against certified law enforcement officers. The Rule states in pertinent part:

    (2) The unlawful use of any controlled substances pursuant to Rule 11B-27.00225, Florida Administrative Code, by an applicant for certification, employment, or appointment, at any time proximate to the submission of application for certification, employment, or appointment, conclusively establishes that the applicant is not of good moral character pursuant to Section 943.13(7), Florida Statutes. The unlawful use of any controlled substances specified in Rule 11B-27.00225, Florida Administrative Code, by an applicant may or may not conclusively establish that the applicant is not of good moral character pursuant to Section 943.13(7), Florida Statutes, depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing in this rule chapter is intended to restrict the requirements of Section 943.13(7), Florida Statutes, to controlled substance use only.

    
    

    * * *

    
    

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), Florida Statutes, a certified officer's failure to maintain good moral character required by Section 943.13(7), Florida Statutes, is defined as:

       
       

       1. The perpetration by an officer of an act that would constitute any felony offense whether criminally prosecuted or not.

          
          

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. Sections 316.193, 316.1935, 327.35,

    414.39, 741.31, 784.011, 784.03, 784.047,

    784.048, 784.05, 790.01, 790.10, 790.15,

    790.27, 794.027, 796.07, 800.02, 800.03,

    806.101, 806.13,	810.08,	812.014, 812.015,
    812.14, 817.235,	817.49,	817.563, 817.565,
    817.567, 827.04,	828.12,	831.30, 831.31,
    832.05, 837.012,	837.05,	837.06, 839.20,

    843.02, 843.03, 843.06, 843.085, 847.011,

    856.021, 870.01, 893.13, 893.147, 914.22,

    944.35, and 944.39, Florida Statutes.

    
    

18. Subsection 893.147(1)(b), Florida Statutes (1999), provides:

(1) Use or Possession of Drug Paraphernalia.-It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia:

(b) To inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided in Sections 775.082 or 775.083.

19. Rule 11B-27.005(5)(b)11. and (d), Florida Administrative Code, as in effect on March 30, 2000, provided:

(5) When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

(b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.0011(4)(b), Florida Administrative Code, but where there was not a violation of Section 943.13(4), Florida Statutes, the action of the Commission shall be to impose a penalty ranging from Administrative

Procedure Act, and the Uniform Rules of Procedure, Rule Chapter 28, Florida Administrative Code.

11. Possession or delivery without consideration, and not more than 20 grams of Cannabis (893.13, Florida Statutes)

* * *

(d) Notwithstanding paragraph (4) of this rule section, for the unlawful use by a certified officer of any controlled substances specified in Section 893.13, Florida Statutes, or Rule 11B-27.00225, Florida Administrative Code, pursuant to Rule 11B-27.0011(4)(d), Florida Administrative Code, the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be impose a penalty of revocation.

1. The duty to go forward and the burden of proof by clear and convincing evidence is upon Petitioner Agency. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pic N Save v.

   Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

2. Fifteen officers of the Street Crimes Unit had handled seized marijuana during the drug bust of March 29, 2000. All fifteen officers took a urine test. Respondent was the only officer among them who tested positive for TCH, a component of marijuana.

3. Petitioner has established by clear and convincing evidence that Respondent failed to maintain good moral character

   in that a positive urine test for cannabis was fully demonstrated.

4. The position of a law enforcement officer is one of public trust. There could be no more basic expectation than that those who enforce the laws and protect the public must themselves obey the law, City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

5. Pursuant to Rule 11B-27.005, Florida Administrative Code, the guideline penalty for the above-described offense is revocation. Petitioner seeks an order of revocation and Respondent has offered no mitigating circumstances.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order finding Respondent guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1999), and revoking Respondent's certification.

DONE AND ENTERED this 29th day of October, 2003, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2003.

ENDNOTES

1/ No items mailed or delivered by the Division or Petitioner to Respondent's last-known address have been returned. Respondent has an obligation to keep the Petitioner, as licensing Commission, advised of any change of address, and he has not notified the Commission or the Division of any change of address. Petitioner had some hearsay information that Respondent was commuting from an out-of-state employment location to the address of record and/or that his wife and/or father still resided at the address of record.

2/ A pro se Respondent's failure to respond to the Requests for Admission alone is insufficient to sustain the Motion, where no explanation of the effect of the civil rule has accompanied the Requests. However, here, Respondent also did not respond to the pending written Motion to Deem Requests for Admission Admitted or present any defense or objection before the conclusion of the hearing.

COPIES FURNISHED:

Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Jerry S. West, Jr. 6581 Imperial Drive

Milton, Florida 32570

Rod Caswell, Program Director Division of Criminal Justice

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

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

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: 03-002238PL

Orders for Case No: 03-002238PL