DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. )
LASHAWN R. WILLIAMS, )
Respondent. )
Case No. 05-3985PL
Pursuant to Notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Diane Cleavinger, held a formal hearing in Panama City, Florida on January 4, 2006.
For Petitioner: Joseph S. White, Esquire
Tallahassee, Florida 32303 For Respondent: Lashawn R. Williams, pro se
The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
On June 14, 2005, the Petitioner filed an Administrative Complaint against Respondent alleging that the Respondent had violated the provisions of Section 943.1395(6) and/or (7) Florida Statutes, and Florida Administrative Code Rule 11B- 27.0011(4)(a) and or (4)(b), in that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that correctional officers in the State of Florida have a good moral character. The Respondent disputed the allegations set forth in the Administrative Complaint and requested a formal administrative hearing. This case was referred to the Division of Administrative Hearings.
At hearing, the Petitioner presented the testimony of three witnesses: Officer Aaron Wilson, Deputy William Blevins and Crime Laboratory Analyst Jeremiah Bortle. The Petitioner also offered two exhibits into evidence. The Respondent testified on her own behalf. Respondent did not offer any exhibits into evidence. Additionally, Petitioner announced a voluntary dismissal of paragraph (4)d of the Administrative Complaint, which alleged unlawful possession of Ambien. Therefore paragraph 4(d) of the Administrative Complaint is dismissed.
After the hearing Petitioner filed a motion requesting leave to file its Proposed Recommended Order not later than
February 1, 2006. The Motion was granted. Thereafter, the Petitioner and the Respondent filed Proposed Recommended Orders on January 31, 2006 and January 30, 2006, respectively.
The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081.
Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America.
Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida.
The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street.
Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years.
Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also
under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed.
On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence.
Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence.
During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the
vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence.
Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity.
On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence.
On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker.
Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there.
Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors.
Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from
Mr. McNeil’s paycheck, which he had recently cashed.
Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer.
In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house.
During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer.
Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room.
During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence.
The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent.
The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was
in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should
be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2005).
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) requires that officers, “Have a good moral character as determined by a background investigation under procedures established by the Commission.”
Section 943.1395(6) and (7), Florida Statutes, establishes the penalties the Commission may levy. It states:
The commission shall revoke the certification of any officer who is not in compliance with the provisions of Section
943.13(4) or who intentionally executes a false affidavit established in Section 943.13(8), Section 943.133(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:
Revocation of certification.
Suspension of certification for a period not to exceed two years...
Placement on a probationary status for a period not to exceed two 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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Florida Administrative Code Rule 11B-27.0011(4), provides a definition of “good moral character” for purposes of implementation of disciplinary action upon Florida law enforcement officers. The rule states in pertinent part:
For the purposes of the Criminal Justice Standards and Training 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 in Section 943.13(7), Florida Statutes, is defined as:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not...(b) The perpetration by any officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:. .
.893.13, 893.147.
Section 893.13(1)(a), Florida Statutes, provides in relevant part:
Except as authorized by this chapter and chapter 499, it is unlawful for any person to...possess with intent to sell . . . or deliver, a controlled substance. Any person who violates this provision with respect to:. . . 2. A. controlled substance named or described in Section 893.03(1)(c). . . commits a felony of the third degree.
Section 893.03(1)(c)7., Florida Statutes, includes cannabis (marijuana) among the named substances enumerated in the schedule.
Section 893.147(1), Florida Statutes, provides in relevant part:
It is unlawful for any person . . . to possess with intent to use, drug paraphernalia:. . . To . . . pack, repack, store, contain, or conceal a controlled substance in violation of this chapter. . .
.
Violation of Section 893.147(1) is a misdemeanor of the first degree. “Drug paraphernalia” is defined in Section 893.145, Florida Statutes, and includes balances used or intended for use in weighing controlled substances as well as containers and
other objects used or intended to be used for storing or transporting controlled substances.
Section 893.13(6), Florida Statutes, provides in relevant part:
It is unlawful for any person to be in actual or constructive possession of a controlled substance . . . except as otherwise authorized by this chapter. . . If the offense is the possession of not more than 20 grams of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree. . . .
Section 827.03(3), Florida Statutes, provides in relevant part:
“Neglect of a child” means: A
caregiver’s failure to make a reasonable effort to protect a child from. . .neglect .
. . Neglect of a child may be based on repeated conduct or on a single incident or omission that . . . could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.
Child neglect through culpable negligence in violation of Section 827.03(3), Florida Statutes, but without causing bodily harm to a child is a felony of the third degree.
In Zemour, Inc. v. Division of Beverage, 3347 So. 2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after the owner was found to not be of good moral character. The court’s definition of moral character is significant:
Moral character as used in this Statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.
In Florida Board of Bar Examiners Re: G.W.L., 364 So.
2d 454 (Fla. 1978), the Florida Supreme Court stated:
In our view a finding of lack of “good moral character” should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation.
See also White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970). Such definition should be used in the case at bar.
Indeed, the position of a law enforcement or correctional officer is one of great public trust. The basic public expectation is that those who enforce the laws must themselves obey the law. City of Palm
Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).
Petitioner has the burden of proving, by clear and convincing evidence, that Respondent's behavior constitutes grounds for discipline of Respondent's certification. Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987).
The evidence in the case does not clearly and convincingly demonstrate that Respondent violated Section 893.13(1)(a)(possession with intent to sell), 893.13(6)(possession) or 893.147(1)(possession of drug paraphernalia), Florida Statutes. The evidence is undisputed that the substance seized from the residence was indeed cannabis. It is further undisputed that the cannabis located under the bed in the bedroom occupied Connie McNeil was packaged in a manner consistent with and characteristic of illicit sale. Its weight exceeded 20 grams. The evidence did not show that the Respondent either actually or constructively possessed the cannabis located in the residence. Constructive possession means that the cannabis is in a place over which the person has control.
In order to establish constructive possession of contraband, there must be proof that the Respondent (1) had dominion and control over the contraband, (2) knew the contraband was in her presence, and (3) knew of the illicit nature of the contraband. See State v. Bell, 882 So. 2d 468 (Fla. 5th DCA 2004) and State v. Reese, 774 So. 2d 948 (Fla. 5th DCA 2001). Here, the evidence did not show that the Respondent had dominion and control over either the contraband or paraphernalia in the residence or the location of the contraband within the residence. Likewise, the evidence did not show that
the Respondent knew of the presence of any illicit drugs in the home or the nature of any alleged paraphernalia. She was a temporary guest at the home while awaiting repairs on her home.
Finally, The evidence did not demonstrate that the Respondent was guilty of child neglect under Section 827.03(3)(c), Florida Statutes. In order to show such a violation, there must be evidence that the Respondent acted with culpable negligence. Culpable negligence is considered to be consciously doing an act that the person knew or reasonably should have known, was likely to cause death or great bodily harm. Here, the evidence was that the Respondent's minor children were at risk of harm by virtue of possible dangers arising from illicit drug activities. Such vague possibilities do not rise to the level of culpable negligence should such possibilities be ignored, as the Petitioner conceded in its Proposed Recommended Order. Based on these facts, the Administrative Complaint should be dismissed.
RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed.
DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2006.
Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Lashawn R. Williams
Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
