STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5013

)

BRADLEY W. CARLTON, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 5, 1991, in West Palm Beach, Florida, and on February 13, 1991, by telephone confrence call from Tallahassee, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Sharon D. Larson, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Stephen W. Foxwell, Esquire

P. O. Box 11239 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether the Criminal Justice Standards and Training Commission (Petitioner) should take disciplinary action against the certificate of Bradley W. Carlton (Respondent) based upon his alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, including specifically the requirement that a law enforcement officer have good moral character.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called four witnesses, and the Respondent testified on his own behalf and called five witnesses to testify. The Petitioner introduced eleven exhibits, while the Respondent introduced one exhibit.

The transcript of the hearing was filed on March 5, 1991, and the parties thereafter filed proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each proposed finding of fact filed by the parties.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer by the Petitioner on April 7, 1988, and was issued certificate number 12-87-02-03.

   
   

2. Respondent was employed as a law enforcement officer by the North Palm Beach Police Department in 1989, and was so employed at all times material hereto.

   
   

3. Based upon information received by the North Palm Beach Police Department from two informants concerning the alleged use of controlled substances by the Respondent, on and off duty, a Departmental investigation was conducted on September 13, 1989. During that investigation, the Respondent gave a statement denying the use of any controlled substances or the possession of a "one-hitter" pipe as described by the informants. The Respondent also consented, orally and in writing, to a search of his person, automobile and residence, and he was entirely cooperative during these searches. No contraband was found on his person.

   
   

4. During the search of Respondent's vehicle on September 13, 1989, by Captain George Warren and Lieutenant Wilbur Walker, a portion of a marijuana cigarette and a one-hitter pipe were discovered inside a red pouch that was obtained from a gear bag located in his vehicle's trunk. The ashtray in the Respondent's car also had an odor of marijuana.

   
   

5. A search of Respondent's bedroom was also conducted on September 13, 1989, by Captain Warren and Lieutenant Walker. Although the Respondent had a roommate, his roommate occupied a separate bedroom. This search uncovered contraband in Respondent's bedroom which included a 35mm film canister containing marijuana seeds which was found in a box on Respondent's closet shelf, a portion of a marijuana cigarette in an ashtray on Respondent's desk, a plastic coaster containing marijuana seeds located on a bookshelf near his bed, and a portion of a marijuana cigarette on the Respondent's desk behind a clock radio. The items found on the Respondent's desk and bookshelf were in open view and were not hidden inside other containers.

   
   

6. Captain Warren and Lieutenant Walker have the necessary training and experience to recognize and identify marijuana, marijuana cigarettes and the odor of marijuana.

   
   

7. The one-hitter pipe found in Respondent's trunk matches the description of the pipe which one informant claims that the Respondent used in her presence. Pipes such as this are typically used to smoke marijuana.

   
   

8. The Respondent admitted the marijuana seeds found in the 35mm canister, the bag containing the pipe and portion of a marijuana cigarette, and the ashtray containing the partial marijuana cigarette were all his. He stated that the ashtray had only gone unemptied for approximately one week. He also admitted that the pipe was probably his because at one time he had one just like it. However, Respondent urges that he had forgotten about these contraband items since he had not used them in a long time, and that at all times material hereto, he did not "knowingly" possess these items. Nevertheless, these items of contraband were Respondent's, and they were found in his vehicle and in his residence.

9. Prior to his employment with the North Palm Beach Police Department, Respondent had used marijuana. He admitted to using marijuana as late as 1982 during the polygraph portion of his employment process.

   
   

10. On or about September 19, 1989, Respondent took a drug test at the Toxi-Tech Laboratory in West Palm Beach, Florida. The results of that test were negative, meaning that there was no indication of any controlled substance which exceeded the testing threshold level. This test cannot exclude the possibility of marijuana use by the Respondent, but simply establishes that the testing threshold level for marijuana of 100 ng/ml was not exceeded in the Respondent's test sample.

    
    

11. Officers Donald Zimmerman and William McArdle received written statements about the Respondent from the two informants, and were also involved with the internal investigation of Respondent which was conducted by the North Palm Beach Police Department. Respondent claims that there was a personal animosity between Officer Zimmerman and himself, and that this may have lead to these informants giving these statements to Officer Zimmerman since he and Officer McArdle knew both informants personally. Officer Zimmerman denies any animosity between himself and the Respondent. Even if it were shown that such animosity existed, which it was not, that fact would not discredit the results of the searches conducted by Captain Warren and Lieutenant Walker, especially in light of the Respondent's admitted prior use of marijuana and ownership of the items of contraband found in his vehicle and residence. The statements of these two informants clearly constitute hearsay, which alone is not sufficient to establish the above findings of fact. They are considered only to support and confirm other direct evidence in the record which consists, specifically, of testimony and documentary evidence concerning the searches conducted of Respondent's vehicle and residence, and Respondent's admissions.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

13. Petitioner alleges that Respondent has violated Section 943.1395(5),(6), Florida Statutes, by failing to maintain good moral character in his actions as a police officer as required by Section 943.13(7). Since this case involves the possible loss of Respondent's livelihood as a police officer due to his decertification as a law enforcement officer, the Petitioner has the burden to prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. The legal issue in this matter is whether Respondent's actions constitute a lack of good moral character which would thereby authorize the Petitioner to take disciplinary action against the Respondent. In the case of Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), the Court defined moral character to mean

    
    

    . . . . 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 which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever

    committed do not necessarily establish bad moral character. But. . . repeated acts in violation of law wherever committed and generally condemned

    by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort

    of character that the legislature. . . has determined should not be entrusted with a . . . license.

    
    

15. The intent of a good moral character requirement in a professional licensing statute has been recognized by the Court as a means of protecting the public from licensees who have evidenced dishonesty in activities relating to their profession. Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981). However, the term is not restricted to the common law notion of moral turpitude. In Florida Board of Bar Examiners, re G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Florida Supreme Court ruled that:

    
    

    A more appropriate definition of the phrase (good moral character) 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.

    
    

16. The Petitioner has adopted Rule 11B-27.0011(4)(b), Florida Administrative Code, which defines a police officer's failure to maintain good moral character to include the perpetration of an act which would constitute a misdemeanor or criminal offense, whether criminally prosecuted or not, including the possession of not more than 20 grams of cannabis, a/k/a marijuana. Section 893.13(1)(g), Florida Statutes.

    
    

17. It has been judicially established that a law enforcement officer with adequate training and experience in the field of narcotics can identify marijuana by its appearance and odor, and therefore, chemical or scientific proof is not required to prove the identity of marijuana. Dean v. State, 406 So.2d 1162 (Fla. 2nd DCA 1981); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981); A. A. v. State, 461 So.2d 165 (Fla. 3rd DCA 1985); Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980). Captain Warren and Lieutenant Walker have the necessary experience to identify marijuana, and their testimony concerning finding marijuana, marijuana cigarettes, and marijuana seeds in the Respondent's vehicle and residence is, therefore, credited.

    
    

18. Based upon these prior judicial interpretations of a good moral character requirement relating to the exercise of a licensed profession, as well as the Petitioner's Rule 11B-27.0011(4)(b), it is concluded that Respondent's activities do evidence his lack of good moral character, and do authorize the Petitioner to revoke his certification. The Respondent was unlawfully and knowingly in possession, either actual or constructive, of marijuana, a controlled substance. He had personal charge and control over the items found in his vehicle and residence. It is uncontroverted that he owned these controlled substances, and the evidence establishes that he had exclusive possession of these items such that knowledge of the presence of these controlled substances in his vehicle and residence may be inferred or assumed. See Florida Standard Jury Instructions in Criminal Cases, Second Edition, page 225.

19. Respondent's actions constitute repeated violations of Section 943.1395(5),(6), Florida Statutes, in that he has failed to maintain the qualifications established in Section 943.13(7), which require that a law enforcement officer have good moral character. This is not a case in which one marijuana cigarette was found in the Respondent's vehicle or residence, but rather, it involves Respondent's possession of marijuana cigarettes, seeds and a one-hitter pipe used to smoke marijuana. These items were found at several locations in his residence which were under his exclusive control, as well as in his vehicle.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent.

RECOMMENDED this 27th day of March, 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5013

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Findings of Fact 1 and 2.

4. Adopted in Finding of Fact 11.

5. Adotped in Finding of Fact 3. 6-8. Adopted in Finding of Fact 11.

9. Rejected as unnecessary.

10-12. Adopted in Findings of Fact 3 and 11, but otherwise Rejected as unnecessary.

13-15. Adopted in Finding of Fact 3.

1. Adopted in Finding of Fact 4.

2. Adopted in Finding of Fact 6.

3. Adopted in Finding of Fact 7.

4. Rejected as unnecessary and immaterial.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 6. 22-25. Adopted in Finding of Fact 5.

26-27. Rejected as unnecessary and immaterial.

28. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary.

29-33. Adopted in Finding of Fact 8.

Rulings on the Respondent's Propsoed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 3, but otherwise Rejected as immaterial.

3-4. Adopted in Finding of Fact 11, but otherwise Rejected as immaterial.

5-6. Adopted in Finding of Fact 3.

7. Adopted in Findings of Fact 4 and 8, but otherwise Rejected as not based on competent substantial evidence.

8-10. Adopted in Findings of Fact 5 and 8, but otherwise Rejected as not based on competent substantial evidence.

11. Rejected as unnecessary and immaterial.

12-13. Rejected as not based on competent substantial evidence and immaterial.

1. Adopted in Finding of Fact 9, but otherwise Rejected as not based on competent substantial evidence and immaterial.

2. Rejected as immmaterial and irrelevant.

3. Adopted and Rejected, in part, in Finding of Fact 10.

COPIES FURNISHED:

Sharon D. Larson, Esquire

P. O. Box 1489 Tallahassee, FL 32302

Stephen W. Foxwell, Esquire

P. O. Box 11239 Tallahassee, FL 32302

Jeffrey Long, Director Criminal Justice Standards

and Training Commission

P. O. Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

Department of Law Enforcement

P. O. Box 1489 Tallahassee, FL 32302

Rodney Gaddy, Esquire General Counsel

P. O. Box 1489 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-005013

Orders for Case No: 90-005013