STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-450

)

CLARENCE EDWARD DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on September 24, 1982, in Orlando, Florida.

APPEARANCES

For Petitioner: Lawrence S. Gendzier, Esquire

Department of Legal Affairs

400 West Robinson Street, Room 212 Orlando, Florida 32801

For Respondent: Clarence Edward Daniels, pro se

1098 Valencia Avenue

Haines City, Florida 33844

ISSUE

Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.

BACKGROUND

By Administrative Complaint dated November 24, 1981, petitioner, Criminal Justice Standards and Training Commission ("Commission") charged respondent, Clarence Edward Daniels, with violating Chapter 943, Florida Statutes, by purchasing and using marijuana in late 1979 and early 1981, while serving as a Deputy Sheriff for Polk County, Florida. As penalty, the Commission seeks to revoke or suspend his law enforcement officer certificate.

Respondent disputed the charges and requested a Section 120.57(1) hearing. On February 11, 1982, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was then set for June 18, 1982; then, on respondent's motion, continued and reset for August 3, 1982, then continued, again, and reset for September 24, 1982.

At hearing, the Commission called as witnesses Richard L. Stanley, Robert Parnell, Jerry Whitehead and respondent, Clarence Daniels. Petitioner's Exhibit Nos. 1/ 1-3 and 5. Exhibit No. 4, on which ruling was reserved, is now received into evidence.

Respondent testified in his own behalf and called John Butler, Jr. as his only witness. Respondent's Exhibit Nos. 1 and 2 were received into evidence.

The transcript of hearing was filed on December 20, 1982, and proposed findings of fact were filed by January 3, 1983. Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department.

   
   

2. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others.

   
   

3. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence.

   At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3)

   
   

4. On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

6. The Commission charges respondent with violating Section 943.145(3), Florida Statutes (1981) 2/, an amendment which became effective on July 1, 1980. But respondent's misconduct involving the purchase and use of marijuana occurred earlier, in 1979. Section 943.145(3) thus has no application here because, as the Commission has recognized, this statute cannot be retroactively applied. See, Cirnigliaro v. Florida Police Standards, etc. 409, So.2d 80 (Fla. 1st DCA 1982).

7. During 1979, the Commission did, however, have the power to issue certificates. Section 943.14, Florida Statutes, (1979). The power to issue necessarily includes the power to revoke. See, State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979); Cirnigliaro, supra; Rule 11B-16.05 Florida Administrative Code.

   
   

8. The Commission alleges that respondent, by his actions, failed to maintain the qualifications for licensure contained in Section 943.13(4) and (7). Subparagraph (4), which disqualifies an applicant convicted of a felony or a misdemeanor involving moral turpitude, has no application here, since respondent was not convicted of any crime. Subparagraph (7), however, requires an applicant to have "good moral character."

   
   

9. The Commission also alleges that respondent is guilty of willful neglect of duty, and incompetence or gross misconduct which seriously reduces his effectiveness to function as a law enforcement officer, offenses which are cause for discipline under Rule 11B-16.05(1)(d), Florida Administrative Code.

   
   

   Failure to Maintain Good Moral Character

   
   

10. In Cirnigliaro, supra, at 84, the court observed, "Whether someone possesses good moral character is a somewhat subjective question and the answer may vary from time to time." In Zemour, Inc. v. State, 347 So.2d 1102 (Fla. 1st DCA 1977), the court interpreted "good moral character"--a qualification for an alcoholic beverage licensee under Section 561.17--as meaning not only the ability to distinguish right from wrong, but the character to observe the difference, the adherence to rules of conduct to an extent which is acceptable for positions of trust and confidence. As applied to lawyers, the phrase "good moral character" forbids conduct which would cause a reasonable man to have substantial doubts about a person's honesty, fairness, and respect for the laws of the State. Fla. Board of Bar Examiners, Re: GWL, 364 So.2d 454 (Fla. 1978).

    
    

    Neglect of Duty, Incompetence or Gross Misconduct Which Seriously Reduces

    an Individual's Effectiveness to Function as a Law Enforcement Officer

    
    

11. The phrase "willful neglect of duty," means a neglect or failure to perform a duty required by law. See, Cf. State ex rel. Hardie v. Coleman, 155 So. 129 (Fla. 1934). "Incompetency" is the lack of a physical, moral, or intellectual quality to such an extent as to render one unable to perform the duties of his office. Id. "Gross" misconduct means misconduct which is immediately obvious or glaringly noticeable. See, Webster's New Collegiate Dictionary (1981), p. 502.

    
    

12. License revocation proceedings, such as this, are penal in nature. The prosecuting agency is required to prove its charges by clear and convincing evidence--by evidence as substantial as the consequences facing the licensee. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966)

    
    

13. Applying this standard, it is concluded that, while respondent has not violated Section 943.145(3), Florida Statutes (1981), he has failed to maintain "good moral character" as required by Section 943.13(7). Possession of marijuana (cannabis) is prohibited by Sections 893.03 and 893.13, Florida Statutes (1981). On at least two occasions in 1979, when he purchased,

    possessed, and used marijuana, he failed to follow rules of conduct which apply to law enforcement officers, persons who must hold the trust and confidence of their communities. Moreover, his action is sufficient to cause a reasonable man to doubt his honesty, fairness, and respect for the laws of this State. Also see, Adams v. State, Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), holding that a teacher's possession of marijuana violates moral standards to which the teaching profession is held.

    
    

14. Moreover, respondent is guilty of willful neglect of duty, in that he failed to arrest a person who committed a misdemeanor in his presence, i.e., the possession and sale of marijuana in Baldy's apartment.

    
    

15. The evidence, however, fails to establish incompetence or gross misconduct which seriously reduces respondent's effectiveness to function as a law enforcement officer. Reduction of effectiveness has not been shown and, in the absence of evidence, it will not be presumed. Cf. Boyette v. Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

    
    

16. Penalty. Revocation of a professional license is a severe and drastic penalty. Draconian measures should be avoided. Here, the instances of respondent's misconduct were few and isolated. There is no evidence of prior infractions. Except for the alleged misconduct, he apparently has been a capable law enforcement officer for many years. The marijuana he possesses was small in amount; less than 20 grams is a misdemeanor, Section 893.13(1)(f), Florida Statutes (1981). And he has already been terminated from his employment. Under these circumstances, a one-year suspension of his license, with reinstatement upon a showing of rehabilitation, would be appropriate.

    
    

17. The parties' proposed findings of fact which are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issues.

RECOMMENDATION

Based on the foregoing it is RECOMMENDED:

That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation.

DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1983.

ENDNOTES

1/ The Commission's and respondent's exhibits will be referenced as "P-_," and "R-_," respectively.

2/ Charges of failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness to function as a law enforcement officer.

COPIES FURNISHED:

Lawrence S. Gendzier, Esquire Department of Legal Affairs

400 West Robinson Street Room 212

Orlando, Florida 32801

Clarence Edward Daniels 1098 Valencia Avenue

Haines City, Florida 33844

Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

G. Patrick Gallagher, Executive Director

Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Docket for Case No: 82-000450

Orders for Case No: 82-000450