STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

LARRY A. LABAY,

Respondent.

/

Case No. 13-1989PL

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted on July 24, 2013, by means of video teleconferencing with sites in Tallahassee and Jacksonville, Florida, before Lisa Shearer Nelson, an administrative law judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey P. Dambly, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Larry A. Labay

(Address of record) STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7),

Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.

PRELIMINARY STATEMENT

On May 9, 2012, Petitioner, Criminal Justice and Standards Commission, filed an Administrative Complaint charging Respondent with failing to maintain good moral character as defined in rule 11B-27.0011(4), in violation of section 943.1395(7), by violation of sections 893.13(6)(b); 893.147(1); 777.03; and 796.07(2)(d),

Florida Statutes. On August 14, 2012, Respondent filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On May 28, 2013, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.

On June 4, 2013, a Notice of Hearing was issued noticing the hearing for July 24, 2013, and the case proceeded as scheduled.

At hearing, the Department indicated that it was withdrawing the charges associated with paragraphs 2(c) and (d) of the Administrative Complaint. Petitioner presented the testimony of Sergeant Bruce Owens, Todd Gross, Deputy Mark Maertz, Sergeant Shawn Gordon, Sergeant Arvid Nelson, and Deputy Becki Wolf.

Petitioner’s Exhibits D, G, and H were admitted into evidence

without objection. Respondent presented no witnesses, but Respondent’s Composite Exhibit 1 was admitted without objection.

The Transcript of the proceedings was filed with the Division on August 9, 2013. Petitioner filed a Proposed Recommended Order on August 19, 2013. As of the date of this Recommended Order, Respondent has not filed a post-hearing submission.

FINDINGS OF FACT

1. Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009.

2. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011.

3. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011.

4. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from

   Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO

   employee was at the scene of some of the controlled purchases. A

   
   

   video recording of some of the buys showed Respondent directly in front of an illegal drug transaction.

5. As a result, Respondent’s conduct was also investigated.

   
   

6. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence.

7. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so.

8. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car.

9. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.”

   
   

10. Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them.

11. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home.

12. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

14. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s certification as a correctional officer. Petitioner bears the

    
    

    burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

15. 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)).

    
    

16. The Administrative Complaint alleged the following factual basis to support the charges against Respondent:

    2. (a) On or about June 27, 2011, the Respondent, Larry A. Labay, did unlawfully possess not more than 20 grams of cannabis.

    
    

    (b) On or about June 27, 2011, the Respondent, Larry A. Labay, did unlawfully use, or possess with intent to use, drug paraphernalia; to wit: smoking devices, to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of Florida Statutes Chapter 893.

    
    

17. Section 943.13 establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) provides that an officer must have "good moral

    
    

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

18. Subsections 943.1395(7) and (8) state:

    
    

    (7) 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.

    
    

    (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). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

    
    

19. The Commission has defined “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:

    (4) 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. 893.13, . . . 893.147, . . ., F.S.

    
    

20. Section 893.13(6)(a), Florida Statutes, provides in pertinent part:

    It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter.

    
    

21. Section 893.147 provides in pertinent part:

    
    

    1. 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.

       
       

22. The Department has proven by clear and convincing evidence that Respondent failed to maintain good moral character as defined in rule 11B-27.0011(4)(b), both by the possession of cannabis in the floorboard of his vehicle and the paraphernalia found in his home. Both his vehicle and his home are places over which Respondent has control. In Scruggs v. State, 785 So. 2d 605 (Fla. 4th DCA 2001), the court found that constructive possession had not been proven when the contraband was in a public place on the ground outside the defendant’s car and the police officer could not testify that he saw the defendant drop the items. By contrast, with respect to his vehicle, the shake was found on the floorboard on the driver’s side that Respondent had exited immediately prior to the search of the truck. Corker

    v. State, 31 So. 3d 958, 961 (Fla. 1st DCA 2010)(“The fact that drugs were openly within the appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the [drugs] may be inferred.”); see also Nicholson v. State, 33 So. 3d 107, 111 (Fla. 1st DCA 2010). The truck he was driving was

    
    

    registered in his name. With respect to his home, Respondent identified to law enforcement officers what items would be found and where the officers would find them.

23. The Commission has developed disciplinary guidelines to be used in determining the appropriate penalties to be imposed for violations of section 943.1395(7). Florida Administrative Code Rule 11B-27.005(5)(b), as it existed at the time of the offense, provided that the guideline penalty applicable for the violation of possession of a controlled substance was revocation. The same can be said under the current version of the rule.

24. The undersigned has reviewed the aggravating and mitigating factors that may be considered and does not find that any of those factors are applicable in this case. Although Respondent submitted character letters for consideration, none of those letters indicated that the writer knew of the allegations in the Administrative Complaint. Even assuming that there was such knowledge, Respondent’s actions evidenced such poor judgment it is clear that he has violated the trust placed in him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B-

27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer.

DONE AND ENTERED this 11th day of September, 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 11th day of September, 2013.

COPIES FURNISHED:

Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Larry A. Labay (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: 13-001989PL

Orders for Case No: 13-001989PL