STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3963

)

SYDNEY C. FRASIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on March 3, 1988, in Williston, Florida, before Jose A. Diez-Arguelles, a duly designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Rodney W. Smith, Esquire

Post Office Box 628 Alachua, Florida 32615

BACKGROUND

On February 26, 1986, the Criminal Justice Standards and Training Commission, Petitioner, issued an Administrative Complaint seeking to revoke the certification of Sydney C. Frasier, Respondent. The Administrative Complaint charges Respondent with possession of cannabis. In response to the Administrative Complaint, Respondent disputed the charges and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner then requested that a hearing officer be assigned to conduct the hearing.

At the hearing, Petitioner presented the testimony of four witnesses: Mr. Charles Reames, Mr. Anthony Eadie, Mr. Leonard Ball and Mr. Harry Kendrick. At the conclusion of Petitioner's case, Respondent made an oral motion to dismiss the charges, based on Petitioner's failure to prove that Respondent possessed cannabis. Respondent did not present any evidence.

The parties were given fifteen days from the date the transcript was filed to submit proposed recommended orders. The transcript was received on April 1, 1988. On April 19, Petitioner filed a Motion for Leave to File Proposed Findings of Fact and Conclusions of Law Out of Time, and filed a Proposed Recommended Order. Good cause having been shown, the motion is granted and Petitioner's proposed findings of fact are addressed in the Appendix attached to this Order. Respondent did not file a posthearing statement.

ISSUE

Whether Respondent's certification should be revoked because he possessed cannabis?

FINDINGS OF FACT

1. Respondent is the holder of certificate number 14-84-502-09, issued by Petitioner on November , 1984.

   
   

2. In September, 1984, Respondent, Mr. Reames, Mr. Eadie and Ms. Debbie Rutledge were enrolled in a correctional officer training class offered by the Florida Department of Corrections at the Correctional Training Institute.

   
   

3. One late afternoon in September, 1984, the training class took a break and some of the members of the class walked outside. During the break, Mr. Reames and Mr. Eadie were standing with a group of other class members. Mr. Frasier and Ms. Rutledge were standing facing each other 20 to 30 yards from the group.

   
   

4. Mr. Reames and Mr. Eadie saw Ms. Rutledge hand Mr. Frasier a clear plastic "baggie" of indeterminate size containing an indeterminate amount of a brown-green or dark substance. Mr. Frasier held the baggie up, placed a lit lighter behind the bag, and examined the bag's contents. Mr. Frasier placed the lighter in his pocket and stuffed the baggie inside the front of his shirt and pants. Mr. Frasier then handed Ms. Rutledge a roll of bill(s). The number of bills or the denomination of the bill(s) is unknown. At the conclusion of this exchange, Mr. Frasier and Ms. Rutledge walked away from each other.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 943.1395(5), Florida Statutes, requires that Respondent revoke the certification of any person who does not maintain good moral character. See Sec. 943.13(7), Fla. Stat. The Administrative Complaint charges Respondent with failure to maintain good moral character because he possessed cannabis in September, 1984, prior to receiving his certificate. In order to revoke Petitioner's license, Respondent must prove by clear and convincing evidence the allegations of the complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1980). In this case, Petitioner has failed to prove by clear and convincing evidence that Respondent possessed cannabis.

   
   

7. The only testimony which would support a finding that Respondent possessed cannabis is that of Mr. Reames. Mr. Reames testified that, from 20 to

   30 yards away, he saw Ms. Rutledge hand Mr. Frasier a sandwich-size baggie containing two fingers worth of a brown-green substance. Mr. Reames testified that, in his opinion, the substance inside the baggie was cannabis. Mr. Reames testimony differs from that of Mr. Eadie who testified that the baggie was either quart-size or much larger than a sandwich-size baggie, and that the baggie was half-filled with a dark or black substance. Mr. Eadie could not identify the contents of the baggie. Additionally, Mr. Ball, the only witness

   who is an expert in identifying cannabis, when asked a hypothetical question based on the facts in this case, testified that the substance could have been anything, or possibly could have been cannabis.

   
   

8. Prior to the incident described in the Findings of Fact, Mr. Reames had only seen a "little bit of" cannabis when he was in high school, five or six years earlier. The cannabis he had seen in high school was of a different color than the color of the substance in the baggie. I am not convinced that Mr. Reames can accurately identify a substance which is contained in a plastic baggie located 20 to 30 yards away from him.

   
   

9. In its Proposed Recommended Order, Petitioner cites a number of cases in support of its position that chemical analysis is not needed to establish that a substance is cannabis and that the cannabis in question need not be introduced into evidence. While the cases support Petitioner's position, the identification of the substance in those cases was accomplished by more than a simple viewing from 20 to 30 yards away. The cases involved smell, touch and actual handling of the substance at issue. Therefore, those cases are distinguishable.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order dismissing the

Administrative Complaint against Respondent.

DONE and ENTERED this 19th day of May, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3963

The Petitioner submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ."

Petitioner's Proposed Findings of Fact

Petitioner's Paragraph Ruling and Recommended Order

Paragraph Number

1. Accepted. RO1

2. Accepted. RO2

3. Irrelevant

4. Accepted. RO2

5. Accepted. RO3

6. Accepted. RO3

7. Accepted. RO3

8. First sentence, Accepted. RO4. Second sentence, Rejected. The exact size of the bag cannot be determined from the evidence presented in this case.

9. Rejected. The exact color of the substance and the amount of the substance cannot be determined from the evidence presented in this case.

1O. First two sentences Accepted.

RO4. Rest of paragraph is supported by the weight of the evidence, but do not serve to establish what the substance was. This behavior could also help identify other substances.

1. Accepted. RO4

2. Accepted. RO4

13-16 Rejected as Recitation of Testimony

17-19 Irrelevant

20 Supported by the weight of the evidence, but Mr. Ball also testified that, given the facts of this case, the substance could be anything.

COPIES FURNISHED:

Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302

Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615

Rod Caswell, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Robert R. Dempsey Executive Director Post Office Box 1489

Tallahassee, Florida 32302

Janet E. Ferris General Counsel

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 87-003963

Orders for Case No: 87-003963