STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-4293

)

HARRY C. FRIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Lakeland, Florida, on April 16, 1986, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Joseph S. White, Esquire

Office of General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Mr. Harry C. Frier, pro se

Post Office Box 2062 Lakeland, Florida 33802

Subsequent to the hearing a transcript of the proceedings at hearing was filed with the Hearing Officer on May 1, 1986.

Thereafter, the Petitioner filed timely proposed findings of fact and conclusions of law. The Respondent has not filed any proposed findings of fact or conclusions of law, or any other post-hearing written submission to the Hearing Officer. The Petitioner's proposed findings and conclusions have been carefully considered in the formulation of this Recommended Order. Specific rulings on each of the Petitioner's proposed findings are included in the Appendix which is attached to and incorporated into this Recommended Order.

ISSUES

This is a case in which, by Administrative Complaint served on Respondent on September 17, 1985, the Criminal Justice.

Standards And Training Commission seeks to revoke Certificate Number 502-3415, which was issued to Respondent on November 5, 1982. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.

FINDINGS OF FACT

Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact.

1. The Respondent was certified by the Criminal Justice Standards And Training Commission on November 5, 1982, and was issued Certificate Number 502-3415.

   
   

2. During December of 1984 and January of 1985, the Respondent was employed as a correctional officer at the Polk Correctional Institution.

   
   

3. On January 29, 1985, Polk County Sheriff's Deputy Lawrence Annen and Department of Corrections Inspector Clayton Lambert served a search warrant and conducted a search inside the Polk County, Florida, residence of the Respondent and his wife. Upon the arrival of Deputy Annen and Inspector Lambert at the Respondent's home on January 29, 1985, the Respondent was present and was advised of the warrant and of his constitutional rights under the Miranda decision. The Respondent indicated that he understood his rights.

   
   

4. Subsequent to the foregoing, the Respondent led then Deputy and the Inspector to a quantity of cannabis, which was present inside Respondent's residence. The Respondent pointed out the cannabis and stated "here it is" and "this is all I have." During the execution of the search warrant, the Respondent also stated that he and his wife had purchased the marijuana for

   $25 an ounce or baggie. The cannabis was seized by Deputy Annen as evidence and was later submitted to the Florida Department of Law Enforcement crime laboratory for analysis. It was confirmed by scientific analysis to be 9.1 grams of cannabis.

   
   

5. On January 31, 1985, the Respondent was again advised of his constitutional rights under the Miranda decision by Inspector Lambert. The Respondent thereafter admitted smoking cannabis because it relaxed him and admitted giving his wife money with which to buy cannabis.

6. The Respondent readily admitted, during the course of the formal hearing in this case, that he had unlawfully possessed and used cannabis and had furnished the funds for his wife to purchase cannabis.

7. The Respondent was adjudged guilty, on March 20, 1985, as to the criminal charge of Possession of Less Than Twenty Grams of Cannabis before the County Court, in and for Polk County, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 943.13(7), Florida Statutes, requires that all persons employed or appointed as corrections officers shall, among other things, "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." And Section 943.1395(5), Florida Statutes, states, in pertinent part:

   
   

   The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) and shall, by rule, adopt revocation-of- certification procedures pursuant to chapter 120.

   
   

10. In this case a search was carried out at the Respondent's home and contraband was seized pursuant to a search warrant. A search conducted pursuant to a warrant is presumed valid and upon the prosecutor's establishment of the existence of a warrant, the accused bears the burden of showing it to be unlawful. Franks v. Delaware, 98 S.Ct. 2674 (1978). In an effort to meet this burden, the Respondent argued that Respondent's Exhibit Four requires a conclusion of law that the warrant served at his residence on January 29, 1985, was unlawful and therefore the testimony regarding the cannabis seized pursuant thereto cannot be considered by the Hearing Officer.

    
    

11. On the basis of the following authorities I am of the view that the search of the Respondent's residence was properly conducted and the contraband properly seized: Gerstein v. Pugh,

    95 S.Ct. 854 (1975); Order Denying Motion To Suppress issued April 8, 1985, in State of Florida v. Assaid, et al., Case Nos. MM85-0269Al-xx, et al., Polk County Court. Further, even if it were to be concluded that there was some technical defect in the search warrant in this case, this is a case which would clearly come within the "good faith" exception of the exclusionary rule - recognized in United States v. Leon, 104 S.Ct. 3405 (1984), and Massachusetts v. Sheppard, 104 S.Ct. 3424 (1984). Accordingly, the evidence regarding Respondent's possession and use of cannabis in his residence was properly received and considered in

    this case.

12. The record in this case does not contain competent substantial evidence of the allegations that the Respondent introduced cannabis into a correctional institution on December 23, 1984, and I have not made any findings to that effect.

    
    

13. The Respondent's unlawful possession and use of a controlled substance constitutes a failure to maintain good moral character under Section 943.13(7), Florida Statutes. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), the court described what is meant by "moral character" as follows:

    
    

    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.

    
    

    And in Florida Board of Bar Examiners v. G.W.L., 364 So. 2d 454 (Fla. 1978), our Florida Supreme Court said:

    
    

    In our view, a finding of a 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.

    
    

14. Consideration of the applicable case law, including similar cases such as Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla.3d DCA 1981), and Adams v. State Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981), leads to the conclusion that the term "good moral character," like the term "moral turpitude," must be interpreted and applied in the context of specific facts and within the context of the profession in question. Where the profession is one which requires public trust and confidence to function effectively, the consideration of what constitutes good moral character must be considered in light of what is reasonably expected of professionals holding positions of trust and confidence.

15. Correctional officers, whose duties include the, supervision of criminals incarcerated in the state's prisons, are expected to obey and respect the criminal laws and set an example of proper conduct before the inmates of the prison, thereby facilitating their rehabilitation. There can be no more basic public expectation than that those who carry out the punishment of others for violations of the law will themselves obey the law.

    
    

16. The Respondent's misconduct evidenced a lack of good moral character and, pursuant to Section 943.1395(5), Florida Statutes, his correctional officer certification should be revoked.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Criminal Justice Standards And Training Commission issue a Final Order revoking Respondent's Certificate Number 502-3415.

DONE AND ORDERED this 16th day of May, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 16th day of May, 1986.

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by the parties.

Findings proposed by Petitioner

Paragraph 1 of the Petitioner's proposed findings consists of a summary of the procedural history of this case. It is rejected as a finding of fact, but is incorporated in substance into the introductory information in this Recommended Order.

The following paragraphs of Petitioner's proposed findings are all accepted with a few minor editorial changes: 2, 3,-4, 5, 6, 7, 8, 9, 11, and 12.

The substance of paragraph 10 of Petitioner's proposed findings is accepted with the deletion of unnecessary subordinate details.

Findings proposed by Respondent

The Respondent did not file any proposed findings of fact.

COPIES FURNISHED:

Joseph S. White, Esquire Office of General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Mr. Harry C. Frier Post Office Box 2062

Lakeland, Florida 33802

Daryl G. McLaughlin, Director Criminal Justice Standards

And Training Commission Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Robert R. Dempsey, Executive Director Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Docket for Case No: 85-004293

Orders for Case No: 85-004293