STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2453

)

LESLIE E. GRANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 6, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Douglas Isenberg, Esquire

13899 Biscayne Boulevard

Suite 224

Miami, Florida 33181 STATEMENT OF THE ISSUES

1. Whether the Respondent committed the offenses described in the administrative complaint?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On March 17, 1989, Petitioner filed an administrative complaint against Respondent which contained the following allegations:

   
   

   1. Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and was issued Certificate Number 19-82-502-08.

   2. a) On or about September 26. 1986, Respondent, Leslie E. Grant, did then unlawfully and knowingly be in actual and

      constructive possession of a controlled substance, named or described in Section 893.03, Florida Statutes, to wit: cocaine and cannabis, and did introduce the said substance into his body.

      b) On or about August 21, 1987, Respondent Leslie E. Grant, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance, named or described in Section 893.03, Florida Statutes, to wit:

      cocaine, and did introduce the said substance into his body.

   3. The actions of the Respondent did violate the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B-27.0011(4) (d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.

Respondent thereafter requested a formal hearing on the allegations made against him. On April 21, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested. Following several continuances, the hearing was finally held.

At hearing, Petitioner presented the testimony of four witnesses and offered four exhibits into evidence. Respondent testified on his own behalf. He also presented the testimony of three other witnesses and offered three exhibits into evidence. All seven exhibits offered by the parties were received into evidence by the Hearing Officer.

Following the close of the evidentiary portion of the hearing, counsel for Petitioner candidly admitted that the evidence adduced at hearing was insufficient to meet Petitioner's burden of proof with respect to the allegation made in paragraph 2(b) of the administrative complaint. Accordingly, he indicated, Petitioner would no longer pursue that allegation.

The Hearing Officer advised the parties on the record at hearing that their post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of hearing. The Hearing Office received the hearing transcript on May 3, 1990. Petitioner filed a proposed recommended order on May 14, 1990. Petitioner's proposed recommended order contains proposed findings of fact. All of these proposed findings of fact have been accepted by the Hearing Officer and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To date, no post- hearing submittal has been filed by Respondent.

FINDINGS OF FACT

1. Based upon the record evidence, the following Findings of Fact are made:

2. Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and issued certificate number 19-82-502-08, which he still holds.

   
   

3. For approximately the past eight years, Respondent has been employed by the Metro-Dade County Department of Corrections and Rehabilitation (Department). During the first six years of his employment with the Department, he held the position of Correctional Officer I. His duties as a Correctional Officer I included supervising crews of inmates performing lawn maintenance work on public grounds outside the correctional facility in which they were housed. One of Respondent's supervisors was Jerry Meese, the Director of the Department's Operations Division.

   
   

4. On September 26, 1986, while returning to his office from a lunchtime excursion, Meese observed a Department truck used to transport inmate work crews parked outside a private residence. The truck's presence in the residential area aroused Meese's suspicion. He therefore stopped to investigate.

   
   

5. He soon discovered that Respondent and some inmates were in the area. One of the inmates was found to have some chewing gum in his possession. The inmate told Meese that Respondent had given him money to purchase the gum at a nearby store.

   
   

6. A short walking distance from where Meese had encountered the inmate was a bag containing seven containers of beer. The containers were cold to the touch.

   
   

7. Meese went to the store to which the inmate had referred and spoke to the store clerk. The store clerk advised Meese that the inmate, a short time before, had bought the beer that Meese had found in the bag.

   
   

8. Meese discussed the matter with Respondent. It appeared to Meese that Respondent's speech was slurred and that his eyes were red.

   
   

9. Upon his return to the office, Meese was provided with statements from inmates supervised by Respondent in which the inmates indicated that they had drank beer and smoked marijuana with Respondent. Shortly thereafter Meese learned that the inmates had tested positive for drugs.

   
   

10. The Department had a policy which required a correctional officer to submit to drug testing if there existed a reasonable suspicion that the officer was involved in the illicit use of drugs. Based upon what had occurred that afternoon, Meese justifiably believed that he had grounds to invoke this policy and he therefore directed Respondent to submit to a drug test. He gave Respondent until Monday, September 29, 1986, to take the test.

    
    

11. On September 29, 1986, prior to submitting to the test, Respondent was interviewed by Robert Sobel, an investigator with the Department's Internal Affairs Unit. Respondent freely admitted to Sobel that he "smok[ed] marijuana on a regular basis" and that he "would like to enroll in a program to overcome this problem."

    
    

12. Later that day, at 3:10 p.m., in compliance with Meese's directive, Respondent went to the Consulab facility at the Cedars Medical Center in Miami and gave a urine specimen.

13. The sample was screened by the use of an enzyme immunoassay testing procedure. The screening test was performed twice. On both occasions, the sample tested presumptively positive for cocaine and marijuana.

    
    

14. The sample was then subjected to confirmatory testing. The thin layer chromatography (TLC) method was used. When performed by a competent technologist, TLC testing is accurate 95 to 99 percent of the time.

    
    

15. The two technologists who tested Respondent's urine sample using the TLC method were highly competent. Their tests, which were completed at about 4:50 p.m., revealed the presence of cocaine metabolites 1/ and cannabinoids (marijuana). 15. The tests were accurate. Respondent had knowingly used cocaine and marijuana on or about the date of the testing.

    
    

16. Notwithstanding the results of the testing, Respondent was not terminated by the Department. Instead, he was suspended. As a condition of continued employment, he was required to participate in a drug rehabilitation program and to remain drug-free.

    
    

17. Respondent has met these requirements to the satisfaction of the Department. Not only has Respondent remained in the employ of the Department, he how occupies the position of corporal, a supervisory position to which he was promoted approximately two years ago. His post-September, 1986, employment record reveals that he has taken full advantage of the opportunity given him by the Department to rehabilitate himself.

    
    

    CONCLUSIONS OF LAW

    
    

18. The administrative complaint which is the subject of the instant case alleges in pertinent part, 2/ that on or about September 26, 1989, Respondent unlawfully used cocaine and marijuana and that, in so doing, he violated "the provisions of Section 943.1395(5),(6), Florida Statutes, and Rule 11B- 27.0011(4) (d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, Florida Statutes, which require that a correctional officer in the State of Florida have good moral character."

    
    

19. Section 943.1395(5), Florida Statutes, presently provides, as it did in September, :1986, at the time of Respondent's alleged misconduct, that "[t]he [Criminal Justice Standards and Training] [C]ommission shall revoke the certification of any [law enforcement] officer who is not in compliance with the provisions of S.943.13(1)-(10)."

    
    

20. Section 943.13(7), Florida Statutes, presently provides, as it did in September, 1986, that "any person employed or appointed as an officer shall... [h]ave a good moral character as determined by a background investigation under procedures established by the commission."

    
    

21. "Moral character" is:

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.

Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "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." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).

22.. The Criminal Justice Standards and Training Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395(5), Florida Statutes, has determined that an individual who engages in the unlawful use of cocaine and marijuana is not of "good moral character," as required by Section 943.13(7).

This interpretation is codified in Florida Administrative Code Rule 11B-27.011. Because this rule provision simply construes statutory language that was in effect at the time of Respondent's alleged misconduct and its adoption did not result in the imposition of any requirements or prohibitions that did not already exist, it should be applied in the instant case notwithstanding that it was adopted after Respondent's alleged misconduct. See Senefeld v. Bank of Nova Scotia Trust Co., 450 So. 2d 1157, 1165 n.12 (Fla. 3d D6A 1984).

1. The evidence adduced in the instant case clearly and convincingly establishes that Respondent engaged in the unlawful use of cocaine and marijuana on or about September 26, 1986, as alleged by Petitioner. Accordingly, Petitioner has met its burden of proving that Petitioner was not at that time of "good moral character," as required by Section 943.13(7), Florida Statutes, and that therefore his certification is subject to revocation pursuant to Section 943.1395(5), Florida Statutes.

   
   

2. Revocation, however, is not the only penalty that the Criminal Justice Standards and Training Commission is authorized to impose upon an officer who has failed to maintain "good moral character" following his certification. Section 943.1395(6), Florida Statutes, allows the Commission to impose lesser penalties than revocation. It provides as follows:

   
   

   Upon the 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 in lieu of revocation of certification:

   1. Suspension of certification for a period not to exceed 2 years.

   2. 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.

      Successful completion by the

      officer of any basic recruit, advanced, or career development training deemed appropriate by the commission.

      (d) Issuance of a reprimand.

      
      

      Although added to Section 943.1395, Florida Statutes, subsequent to September, 1986, this statutory provision is nonetheless applicable to the instant case, as Petitioner evidently recognizes, 3/ inasmuch as it authorizes the imposition of lesser, not increased, penalties. See The Florida Bar Re: Turk, 307 So.2d 162, 163 (Fla. 1975); Senefeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157, 1164-65 (Fla. 3d DCA 1984).

      
      

3. As directed by the Legislature in Section 943.1395(7), Florida Statutes, the Criminal Justice Standards and Training Commission has adopted "procedures pursuant to chapter 120 for implementing the penalties provided in subsections (5) and (6) [of Section 943.1395, Florida Statutes]." These procedures are found in Florida Administrative Code Rule 11B- 27.005, which provides, in pertinent part, as follows:

   
   

   1. The Commission sets forth below a range of disciplinary guidelines from which disciplinary `penalties will be imposed upon certified officers who have been found by the Commission to have violated Subsection 943.13(7), F.S.

      The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), F.S., will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

   2. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in' the following disciplinary guidelines:

      * * *

      (d) For the unlawful use by the officer of any of the controlled substances enumerated in Rule 11B-27.00225, as described in Rule 11B-27.0011(4)(d), the action of the Commission shall be to impose a penalty ranging from suspension to revocation.

   3. The Commission shall be entitled to deviate from the above-mentioned

      guidelines upon a showing of mitigating circumstances by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more

      of the following mitigating circumstances:

      1. Whether the officer used his or her official authority to facilitate the misconduct;

         Whether the misconduct was

         committed while the officer was performing his or her other duties;

         1. The officer's employment status at the time of the final hearing before the Commission;

         2. The recommendations of character or employment references;

         3. The number of violations found by the Commission;

         4. The number of prior disciplinary actions taken against the officer by the Commission;

         5. The severity of the misconduct;

         6. The danger to the public;

         7. The length of time since the violation;

         8. The length of time the officer has been certified;

         9. The actual damage, physical or otherwise, caused by the misconduct;

         10. The deterrent effect of the penalty imposed;

         11. Any effort of rehabilitation by the officer;

         12. The effect of the penalty upon the officer's livelihood;

         13. The penalties imposed for other misconduct;

         14. The pecuniary benefit or self-gain on the officer realized by the misconduct;

         15. The officer's compliance with the terms and conditions of any Commission- ordered probation.

   4. The Commission may impose one or more of the following penalties, listed in increasing order of severity:

   1. The issuance of a reprimand.

   2. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the Commission.

   3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed

      by the Commission. The terms and conditions may include, but are not limited to: periodic reports from the officer, supervisor or counselor; indirect or direct supervision by Division staff or a Commission-approved supervisor; furnishing urine samples and consent to the release and analysis of results of random or scheduled drug tests; personal appearance(s) before the Commission; participation in psychological, occupational or substance abuse counseling; successful completion of training or retraining as specified

      in Subsection (5) (b) above; maintaining employment; refraining from violations of Subsections 943.13(1)- (10); the payment of restitution for damages or loss created by the officer's misconduct; or any other terms or conditions as appropriate.

   4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

   5. Revocation of certification.

   
   

4. In its proposed recommend order, Petitioner argues that "the seriousness of the Respondent's misconduct merits revocation of his correctional officer certification." Having carefully considered the facts of the instant case in light of the provisions of Florida Administrative Code Rule 11B-27.005 cited above, the Hearing Officer disagrees. Revocation of Respondent's certification is too harsh a penalty, particularly in view of the length of time that has passed since Respondent's misconduct and the successful effort he has made in that time to rehabilitate himself, which is reflected by his post- September, 1986, employment record. The appropriate penalty to impose upon Respondent for the conduct alleged and proven by Petitioner is a 30-day suspension of his certification, followed by two years of probation during which time he should be required to, among other things, submit to scheduled and random drug testing and agree to release the results of such testing to the Commission or its designee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character" in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cocaine and marijuana on or about September 26, 1986; and (2) based upon such a finding, (a) suspend Respondent's certification for 30 days, (b) place Respondent on probation for a period of two years to commence upon the expiration of this 30-day suspension, and (c) include among the terms and conditions of his probation the requirements that Respondent submit to scheduled and monthly drug testing and that he agree to release the results of such testing to the Commission or its designee.

DONE and ORDERED in Tallahassee, Leon County, Florida, this 30th day of May 1990.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division Administrative Hearings this 30th day of May 1990.

ENDNOTES

1/ Metabolites are compounds produced when cocaine is introduced into the body.

2/ Given Petitioner's abandonment of the allegation made in paragraph 2(b) of the administrative complaint, any discussion regarding the merits of that allegation is unnecessary

3/ This statutory provision is referenced in the administrative complaint.

COPIES FURNISHED:

Joseph S. White, Esquire Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Douglas Isenberg, Esquire The Senator Building

13899 Biscayne Boulevard, Suite 224

Miami, Florida 33181

Jeffrey Long, Director Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-002453

Orders for Case No: 89-002453