STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

DIRK W. SYLVESTER, )

)

Respondent. )

Case No. 12-3614PL

)

RECOMMENDED ORDER

On January 29, 2013, pursuant to notice, a hearing was conducted in Port St. Joe, Florida, before Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Dirk W. Sylvester, pro se

(Address of record) STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On May 14, 2012, the Petitioner, Criminal Justice Standards and Training Commission ("Petitioner" or "the Commission"), filed an Administrative Complaint against Respondent, Dirk W. Sylvester ("Respondent" or "Mr. Sylvester"), alleging that Respondent failed to maintain good moral character in violation of section 943.1395(7), in that he "did unlawfully introduce into or process upon the grounds of Gulf Correctional Facility, a county detention facility, or give to or receive from any inmate of said facility, or take or attempt to take or send therefrom, pain pills, an article or thing declared to be contraband pursuant to section 951.22(1)." On May 30, 2012, Respondent filed an Election of Rights form with the Commission, disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On November 6, 2012, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

By Notice issued November 11, 2012, the case was scheduled for hearing to be conducted January 29, 2013, and proceeded as scheduled. At hearing, the Commission presented the testimony of Michael Hammond, Jail Administrator of the Gulf County Jail, and Petitioner's Exhibits 1-3 were admitted into evidence.

Respondent chose not to testify and presented no witnesses or exhibits.

The Transcript of the hearing was filed with the Division on February 14, 2013, and Petitioner filed a Proposed Recommended Order on March 6, 2013. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/

2. In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior.

3. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped.

4. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond

   
   

   testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced.

5. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated.

6. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.

8. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s certification as a corrections officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

9. As stated by the Supreme Court of Florida,

   
   

   Clear and convincing evidence requires that the 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.

   
   

   In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

   
   

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

   
   

10. The Administrative Complaint contains the following factual allegations:

    2. On or about May 4, 2010, and May 13, 2010, the Respondent, Dirk W. Sylvester, did unlawfully introduce into or process upon the grounds of Gulf Correctional Facility, a county detention facility, or give to or receive from any inmate of said facility, or take or attempt to take or send therefrom, pain pills, an article or thing declared to be contraband pursuant to section 951.22(1).

    
    

11. Petitioner failed to establish these facts by clear and convincing evidence.

12. At best it can be said that there was an investigation regarding the provision of contraband at the jail; that as a result of that investigation, Respondent was charged with providing contraband; that his employment was terminated; and that he entered a pre-trial agreement with respect to those charges. However, the only evidence linking Respondent to the contraband is the taped interview of inmate Jason Strimel.2/ While the interview was videotaped, it remains an out-of-court statement offered for the truth of the statement, which is the very definition of hearsay. § 90.801(1)(c)("'Hearsay' is a

    
    

    statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.").

13. Mr. Strimel did not testify at hearing, and was not subject to cross-examination. Hearsay, standing alone, cannot provide the basis for a finding of fact. § 120.57(1)(c), Fla. Stat. If evidence had been presented that was not hearsay linking Respondent to the pills, the tape could support or corroborate the other evidence. In this case, all of the evidence stemmed from the information contained in the taped interview. Even Warden Hammond's testimony simply reiterates what he recalls Strimel stating in the interview, and other conclusions drawn from the investigation, amounting to hearsay as well. Because no one testified who received the contraband or who observed its transfer from Respondent to an inmate, and no one testified observing Respondent introduce contraband onto the grounds of the facility, the charges against Respondent cannot be

sustained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 12th day of March, 2013, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 12th day of March, 2013.

ENDNOTES

1/ No direct evidence of licensure was presented in this proceeding. However, given his undisputed status as a corrections officer employed by the Gulf County Jail, it does not appear that his licensure was in dispute.

2/ Counsel for the Department offered the interview to supplement or explain Warden Hammond's testimony, and the tape was not viewed at the hearing. However, without the statement of the inmate, there is no evidence of the transaction from someone who observed or participated in it.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Dirk W. Sylvester (Address of record)

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: 12-003614PL

Orders for Case No: 12-003614PL