STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6766

)

CLYDE W. PARKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held before Veronica E. Donnelly, a duly designated Hearing Officer with the Division of Administrative Hearings, on April 24, 1990, in Naples, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Al Beatty, Qualified Representative c/o Clyde W. Parks

5226 Jennings Street

Naples, Florida 33962 STATEMENT OF THE ISSUES

Whether the Respondent's certification as a correctional officer should be disciplined based upon the alleged violations set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (the Commission), filed an Administrative Complaint seeking to discipline the correctional officer certification of the Respondent, Clyde W. Parks (Parks), on September 28, 1989. Essentially, Respondent Parks is charged with delivering less than twenty grams of cannabis, using cannabis himself, and engaging in prostitution with another person. These alleged activities are contrary to the statutory standards which require a correctional officer in Florida to have good moral character.

In an Election of Rights Form signed November 4, 1989, the Respondent disputed the allegations contained in the Administrative Complaint and requested a formal hearing.

During the hearing, the Commission called four witnesses and submitted two exhibits which were admitted into evidence. The Respondent presented two witnesses and testified in his own behalf. The deposition of Melissa Sue Watson submitted by Respondent Parks was rejected by the Hearing Officer because the Commission was not given the opportunity to cross examine the witness. The deposition was from a prior criminal case that had been filed against the Respondent. In addition, there was no showing that the witness was unavailable to present live testimony at hearing. A proffer of the deposition was made for review purposes.

Respondent Parks waived his opportunity to submit proposed findings of fact. The Commission's proposed findings were timely filed after the transcript of the hearing was filed on May 16, 1990. Rulings on the proposed findings are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. The Respondent was certified by the Commission as a correctional officer on July 1, 1981, and was issued Certificate Number 33-81-500-00.

   
   

2. At all times material to these proceedings, the Respondent was employed by the Collier County Sheriff's Office and was assigned to work with inmates in the county jail.

   
   

3. In the course of his duties, Respondent Parks became acquainted with a young female inmate, Melissa Sue Watson. After her release from jail, the Respondent continued to see the woman socially. As part of their relationship, the Respondent would occasionally give the woman money or anything else she requested that he was able to provide for her. While the Respondent and the young woman eventually became sexually intimate, the money was not given to her in direct exchange for sexual services. Instead, the money and other requested items were bestowed as gifts to demonstrate his affection and to assure that she would continue to allow a married man of his years to court her.

   
   

4. Due to the fact that Respondent's wife was in charge of the family finances, the sums of money given to the young woman were sparse. These gifts amounted to little more that the Respondent's spare change and lunch money.

   
   

5. After the relationship progressed to the stage where the parties had become sexually intimate, the young woman asked the Respondent to get her some marijuana. She was provided with the pipe and marijuana the Respondent had confiscated from his teenaged son.

   
   

6. The Respondent smoked the marijuana with the young woman.

   
   

7. During her relationship with the Respondent, the young woman had an ongoing relationship of a different kind with another member of the Collier County's Sheriff Department. Melissa Sue Watson was a confidential informer for Linda Leis, a narcotics investigator with the Vice-Intelligence-Narcotics Unit (VIN Unit). She assisted Ms. Leis in the arrest of several narcotics violators prior to her report that Respondent Parks had given her money and marijuana in exchange for sex.

8. Ms. Watson gave the investigator the pipe used to smoke the marijuana. A field test confirmed that it had contained marijuana. The young woman was told to arrange an assignation with the Respondent so his actions could be documented and an arrest made if the allegations were well-founded.

   
   

9. Pursuant to instructions from Ms. Leis, the woman placed a telephone call to the Respondent which was recorded by the sheriff's department. The Respondent was asked to join Ms. Watson at White's Motel after work. Ms. Watson requested that the Respondent bring money and marijuana because she needed funds and wanted "to get high."

   
   

10. In response to her invitation, Respondent told Ms. Watson that he would meet her and that he had ten dollars she could have. However, he was unable to provide marijuana because he did not know where to get it. When she inquired as to where he got the marijuana in the pipe, he teased her by withholding the information. Eventually, after she prodded him for an answer, he agreed with her suggestion that he had grown the marijuana in order to stop the inquiry. He told her there was no more and closed the topic.

    
    

11. In fact, the Respondent had not grown the marijuana. As mentioned previously, he confiscated it from his son.

    
    

12. When the Respondent arrived at the hotel, members of the VIN Unit had already installed listening and recording devices in the room. They waited in the adjoining room to take pictures and make an arrest once it was determined that Respondent Parks had given Melissa Sue Watson money for sex.

    
    

13. During the motel room conversations between Respondent and Ms. Watson, the Respondent expressed concern about Ms. Watson's failure to appear in court that morning on a new pending criminal charge. She feigned surprise about having been on the court docket and stressed her need for money. She teased the Respondent during their foreplay that she had something for him if he had the money he said he was bringing to her.

    
    

14. Because the Respondent was expected home shortly, he handed Ms. Watson the money he brought to give to her when she asked to see it.

    
    

15. Based upon their prior relationship and the contents of the recorded conversations, the giving of the money and the sexual activity between the parties were concurrent actions that were not connected to each other. They occurred at the same time because the parties were involved in a clandestine, adulterous affair that allowed them to see each other on an infrequent basis.

    
    

16. Once the Respondent stripped down to his underwear in order to proceed further with the sex play, members of the VIN Unit entered the room and placed the Respondent under arrest.

    
    

17. After he waived his right to receive the Miranda warning, the Respondent admitted to having had sex with Melissa Sue Watson in the past and having smoked marijuana with her that he had provided at her request.

    
    

    CONCLUSIONS OF LAW

    
    

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

19. In a proceeding to discipline a professional license or certification, the Petitioner has the burden of proof, and must prove by clear and convincing evidence that the Respondent committed the violation set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. The charging document in this case alleges that the Respondent gave less than twenty grams of cannabis or marijuana to another person, used the drug himself, and engaged in prostitution. Facts adduced at hearing demonstrate that he took his teenaged son's marijuana and paraphernalia and gave it to Melissa Sue Watson, a former jail inmate he had supervised in his capacity as a correctional officer. He then smoked the marijuana with her. Based on the facts, the Respondent is guilty of the charges set forth in Paragraph 2(a) and Paragraph 2(b), of the Administrative Complaint.

    
    

21. Ms. Watson used these actions against him when it became apparent that the information could assist her in some way during one of her legal entanglements within the criminal justice system. She had been a police informant before, and was familiar with the ways she could avoid punishment for her own misconduct by reporting on the transgressions committed by others.

    
    

22. The allegations that the Respondent had given Ms. Watson money and marijuana in exchange for sex were unfounded. All of the evidence presented at hearing supports the finding that the funds and the marijuana were independent of the sexual activity between the two people. Accordingly, the charge that Respondent Parks engaged in prostitution should be dismissed.

    
    

23. Section 943.12(3), Florida Statutes [1987], empowers the Commission with the authority to certify and revoke the certification of correctional officers.

    
    

24. Section 943.1395(5), Florida Statutes [1987] requires the Commission to revoke the certification of any officer not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes. Section 943.13(7), Florida Statutes, requires an officer to have good moral character.

    
    

25. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the appellate court defined "moral character" as follows:

    
    

    Moral character . . . 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.

    
    

26. When the Respondent gave marijuana to a young, former female inmate he had supervised in the county jail and then smoked it with her, he violated the tenets of good moral character as defined in Zemour. A correctional officer whose primary responsibility is the supervision, protection, care, custody, and control of inmates within a correctional institution cannot engage in criminal activity with these people after they are released. The delivery and use of marijuana is a crime, in violation of Section 893.03, Florida Statutes. This type of misconduct belies the position of trust and confidence correctional officers are placed in by the State of Florida.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Respondent be found guilty of unlawfully, delivering less than twenty grams of cannabis to another person and of constructive possession as set forth in Paragraph 2(a) and 2(b) of the Administrative Complaint.

   
   

2. That the Respondent be found not guilty of having engaged in prostitution with another person, as set forth in Paragraph 2(c) of the Administrative Complaint.

   
   

3. That Respondent's certificate as a correctional officer be revoked.

DONE and ENTERED this 12th day of June, 1990, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6766

Petitioner's proposed findings of fact are addressed as follows:

1. Rejected. Irrelevant.

2. Accepted. See HO #12-#13.

3. Rejected. Irrelevant.

4. Accepted.

5. Accepted. See HO #15.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted. See HO #16.

10. Rejected. Irrelevant.

11. Accepted.

12. Accepted. See HO #16.

13. Rejected. Contrary to fact. See HO #14.

Copies furnished to:

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Al Beatty, Qualified Representative c/o Clyde W. Parks

5226 Jennings Street

Naples, Florida 33962

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

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

Docket for Case No: 89-006766

Orders for Case No: 89-006766