STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

LUIS DELMONTE, )

)

Respondent. )

Case No. 12-1677PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on August 21, 2012, before Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

Law Offices of Slesnick & Casey 2701 Ponce DeLeon Blvd., Suite 200 Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4)(b), by possessing not more than 20 grams of cannabis in violation of section 893.13(6)(b), Florida Statutes, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On or about December 13, 2011, Petitioner, Criminal Justice Standards Training Commission, issued an Administrative Complaint charging Respondent with failing to maintain good moral character in violation of sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b), by unlawfully possessing not more than 20 grams of cannabis in violation of section 893.13(6)(b). On or about January 24, 2012, Respondent filed an election of rights disputing the material facts alleged in the Administrative Complaint and requesting an administrative hearing pursuant to section 120.57(1). The matter was referred to the Division of Administrative Hearings ("DOAH") on

May 14, 2012, and assigned to Administrative Law Judge John G. VanLaningham.

The final hearing initially was set for July 20, 2012.

Pursuant to Petitioner's Motion to Continue, filed on June 19, 2012, the final hearing was rescheduled for August 10, 2012. On August 6, 2012, this case was transferred to the undersigned for all further proceedings. Pursuant to Petitioner's Motion to

Continue, filed on August 8, 2012, the final hearing was rescheduled for August 21, 2012.

The final hearing was held on August 21, 2012. Petitioner presented the testimony of George Montenegro, Philip Cataldi, and Darrel Grabner, and offered Petitioner's Exhibits 1 through

4 for admission into evidence. Exhibits 1 through 4 were admitted without objection. Respondent testified on his own behalf, and presented the testimony of Roland Pandolfi, Ricardo Silva, Orlando Fleites, John Wrves, and Luis Hernandez. Respondent's Exhibits 1 and 2 were admitted into evidence without objection.

The Transcript of the final hearing was filed with DOAH on September 7, 2012. Pursuant to Respondent's unopposed Motion for Extension of Time to File Proposed Recommended Order, filed on September 13, 2012, the undersigned issued an Order Granting Extension of Time until September 24, 2012, for the parties to file their Proposed Recommended Orders. The parties timely filed their Proposed Recommended Orders on September 24, 2012. Both were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary

   
   

   action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat.

2. At all times relevant, Respondent was a certified Florida Correctional Officer, and employed as a correctional officer at Everglades Correctional Institute ("ECI").

3. On March 31, 2011, shortly after reporting to work, Respondent was confronted by Inspectors George Montenegro, Philip Cataldi, and Darrel Grabner (all of whom are employed with the Office of the Inspector General within the Florida Department of Corrections).

4. Respondent was requested to submit, and consented, to a pat down search of his person. The personal search did not reveal any contraband.

5. Thereafter, Respondent was requested to submit, and again consented, to a search of his personal vehicle located in the ECI employee parking lot.

6. Respondent was aware that, pursuant to Florida Administrative Code Rule 33-208.002, as a Department of Corrections employee, while on the ECI premises, he was subject to search or inspection of his person and vehicle.1/

7. Respondent escorted Inspectors Montenegro, Cataldi, and Grabner to his vehicle.

   
   

8. Respondent acquired his vehicle, a 2006 Chevrolet Colorado, at an automobile auction in January 2011; the vehicle had been repossessed from its previous owner.

9. Respondent opened the vehicle and then remained in close proximity, at the side of Inspector Montenegro.

10. Inspector Cataldi, while searching Respondent's vehicle, located a small clear plastic bag.2/ Specifically, the bag was located on the floor and two to three inches back from the mid-point of the front passenger's seat. Within the bag Inspector Cataldi observed a green, leafy substance which, based on his law enforcement experience and training, he believed to be marijuana.

11. Inspector Cataldi contemporaneously advised Inspector Grabner of the find and transferred the bag to Inspector Grabner's possession. Inspector Grabner observed residue that, based on his law enforcement training and experience, was consistent with marijuana.

12. Inspector Grabner then proceeded to confirm his suspicion by utilizing the Duquenois-Levine reagent test, a presumptive field test designed to identify THC in marijuana.3/

13. Inspector Grabner, who has performed the same test on several hundred occasions, transferred the de minimis amount of suspicious material with tweezers into the test kit's pre-

    
    

    packaged ampoule, and followed the remaining directions as indicated in the package insert.

14. After the sample was agitated, as directed, a presumptive positive result for THC was indicted by the color purple. The positive result was also observed by Inspector Montenegro.

15. According to Inspector Grabner, the entirety of the suspicious material was consumed in the Duquenois-Levine testing process.

16. The persuasive evidence establishes that the residue contained within the clear plastic bag was marijuana.

17. Respondent was thereafter interviewed by Inspector Montenegro. At that time, Respondent denied any knowledge of the clear plastic bag or its contents.

18. Respondent conceded that, during the approximately three-month period he had owned his car, he had cleaned and vacuumed the vehicle on multiple occasions. Respondent clarified, however, that when he acquired the repossessed vehicle from an automobile auction, the vehicle had not been detailed and was dirty. He further elaborated that, as he was the primary occupant of the vehicle, he had not attempted to vacuum the flooring underneath the passenger seat.

19. Respondent credibly testified that he had no knowledge of the presence of the baggie or its contents.

    
    

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.

21. Petitioner seeks to take penal disciplinary action against Respondent's correctional officer certification for alleged violations of sections 893.13(6)(b), 943.13(7), and 943.1395(7)4/,and Florida Administrative Code Rule 11B- 27.0011(4)(b)(1).5/ Therefore, Petitioner must prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence requires that:

    [t]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

22. Section 943.13(7) requires correctional officers, as a condition of employment, to "[h]ave good moral character as

    
    

    determined by a background investigation under procedures established by the commission."

23. Section 943.1395(7) provides:

    
    

    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 s.

    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 a 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.

       
       

24. Pursuant to section 943.1395(7), Petitioner has adopted rule 11B-27.0011, which addresses "moral character" for purposes of complying with sections 943.13(7) and 943.1395(7). Rule 11B-27.0011(4)(b) provides 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), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) Except as otherwise provided in Section 943.13(4),F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or 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 . . . 893.13, . . . .

    
    

25. Here, the Administrative Complaint charges Respondent with unlawful possession of not more than 20 grams of cannabis, in violation of section 893.13(6)(b). Section 893.13(6)(b) provides in pertinent part:

    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, punishable as provided in s. 775.082 or s. 775.083

    . . . .

    
    

26. Pursuant to these provisions, if Respondent were shown, by clear and convincing evidence, to have unlawfully actually or constructively possessed not more than 20 grams of cannabis in violation of section 893.13(6)(b), he would be guilty of failing to maintain good moral character, pursuant to rule 11B-27.0011.

27. Here, Petitioner did not present any evidence to show that Respondent actually possessed not more than 20 grams of cannabis in violation of section 893.13(6)(a). Accordingly, the

    
    

    question is whether Petitioner has shown, by clear and convincing evidence, that Respondent constructively possessed not more than 20 grams of cannabis in violation of section 893.13(6)(b).

28. Constructive possession of a controlled substance exists when the accused has knowledge of the presence of a controlled substance on the premises and the ability to maintain dominion and control over it. Brown v. State, 428 So. 2d 250, 252 (Fla. 1983); Evans v. State, 32 So. 3d 188, 189 (Fla. 1st DCA 2010); Hall v. State, 382 So. 2d 742 (Fla. 2d DCA 1980).

29. When a motorist is in the exclusive possession of a vehicle, his knowledge of the presence of controlled substances within the vehicle may be inferred. Parker v. State, 641 So. 2d 483, 484 (Fla. 5th DCA 1994). "The presumption of guilty knowledge which arises when it is established that the defendant had . . . exclusive constructive possession of the drugs may, of course, be overcome by evidence tending to show a lack of guilty knowledge." Garcia v. State, 854 So. 2d 758, 763 (Fla. 2d DCA 2003), quashed on other grounds Garcia v. State, 901 So. 2d 788 (Fla. 2005).

30. The well-established standard was articulated in Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967), as follows:

    If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence

    
    

    on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive.

    
    

    Frank, 199 So. 2d at 120.

    
    

31. If the premises where the substance is found are in joint rather than exclusive possession, the accused's knowledge and dominion and control will not be inferred from the presence of the substance on the premises, but must be established by independent proof. See Brown, 428 So. 2d at 252; see also Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976).6/

32. Petitioner established by clear and convincing evidence that, on March 31, 2011, Respondent was the owner of a 1996 Chevrolet Colorado; a consensual search of Respondent's vehicle on that date revealed a small plastic bag of suspicious material on the floor underneath the passenger's seat; and the de minimus amount of material was presumptively determined, through the use of the Duquenois-Levine testing process, to be marijuana residue that was less than 20 grams.

33. Petitioner failed, however, to establish by clear and convincing evidence that Respondent had knowledge of the presence of the marijuana residue located underneath the passenger's seat and the ability to maintain dominion and control over it.

    
    

34. As discussed above, while Respondent's exclusive possession of the vehicle created an inference of his knowledge, dominion, and control of the marijuana, the inference is rebuttable and not conclusive.

35. The undersigned concludes that the knowledge inference was, in fact, rebutted. Respondent testified credibly7/ that he had no knowledge of the marijuana residue or how it came to be located in his vehicle.

36. As such, Petitioner has not met its burden to establish, by clear and convincing evidence, that Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.

ENDNOTES

1/ Rule 33-208.002(7)(a), the Rules of Conduct for Department of Corrections employees, provides that, "[n]o employee shall refuse to submit to a search or inspection by an authorized employee of his person, personal property or vehicle while entering, departing or otherwise being upon the premises of an institution."

2/ There was no evidence presented that the vehicle search revealed any additional contraband.

3/ Inspector Grabner and Respondent had divergent recollections of Respondent's presence during the field testing. Inspector Grabner testified that the testing was performed directly in front of Respondent. Respondent testified that the field testing was not performed until Respondent returned to the ECI facility and that same was not performed in his presence.

4/ All references to chapters 893 and 943 and the sections therein are to Florida Statutes 2010, which was in effect on March 31, 2011, when the events that gave rise to this proceeding are alleged to have occurred. See State Farm Mut. Auto. Ins. Co., 658 So. 2d at 61 (version of substantive statute in effect at time of event at issue, rather than subsequently

enacted version, applies, absent clear legislative intent to the contrary). See also Alamo Rent-A-Car, Inc. v. Mancusi, 621 So. 2d 1352, 1358 (Fla. 1994).

5/ The version of rule 11B-27.0011 adopted on June 3, 2010, is applicable to this proceeding, since it was in effect when the events giving rise to this proceeding occurred. See Envtl.

Trust v. Dep't of Envtl. Prot., 714 So. 2d 493, 399 (Fla. 1st DCA 1998)(general rule is that administrative rules are not applied retroactively). See also § 120.54(1)(f), Fla. Stat. (agency cannot adopt retroactive rules unless expressly authorized by statute).

6/ The undersigned recognizes that the constructive possession cases cited herein are criminal cases in which a more stringent standard of proof (beyond a reasonable doubt) is applicable.

The undersigned has applied the less stringent "clear and convincing evidence" standard in the analysis contained herein.

7/ Evidentiary matters such as credibility of witnesses and resolution of conflicting evidence are the prerogative of the undersigned as finder of fact in administrative proceedings. Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281-82 (Fla. 1st DCA 1985).

COPIES FURNISHED:

James C. Casey, Esquire

Law Offices of Slesnick and Casey, LLP Suite 200

2701 Ponce de Leon Boulevard Coral Gables, Florida 33134 jimcasey@scllp.com

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

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: 12-001677PL

Orders for Case No: 12-001677PL