STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL )

JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6315

)

JEFFREY S. RICHTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Marianna, Florida.

APPEARANCES

For Petitioner: Craig Rockenstein, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Jeffrey S. Richter, pro se

3881 Highway 273

Graceville, Florida 32440 STATEMENT OF THE ISSUES

This cause arose upon an Administrative Complaint filed against the Respondent seeking to discipline his correctional officer certification status for his alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, which require such an officer to have good moral character and for violation of Section 943.1395(5), Florida Statutes. The issue is thus whether the Respondent committed the acts charged in the Administrative Complaint, whether they constitute violations of the statutory authority cited next above and, if so, what penalty, if any, is warranted.

PRELIMINARY STATEMENT

The Petitioner, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to discipline the certification of Jeffrey S. Richter as a correctional officer by Administrative Complaint filed January 31, 1991. The complaint alleges in essence that the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes and that therefore he had derivatively violated Section 943.1395(5) and (6), Florida Statutes regarding his possession

and use of marijuana. This cause came on for hearing as noticed at which the Petitioner presented the testimony of Joel W. Davis and Robby Wester. The Petitioner also presented nine exhibits which were admitted into evidence. The Respondent presented no testimony nor exhibits.

Although the parties were accorded the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders at a date certain set subsequent to the filing date of the transcript, after the transcript was filed only the Petitioner filed such a pleading. Accordingly this recommended order is entered and in the appendix attached hereto and incorporated by reference herein specific rulings on the proposed findings of fact offered by the Petitioner are made.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502-

   09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time.

   
   

2. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed.

   
   

3. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis.

   
   

4. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed.

   
   

5. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue

   herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program.

   
   

6. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including Subsection (7):

   
   

   Have a good moral character as determined by a background investigation under procedures established by the Commission.

   Section 943.1395(5) requires:

   The commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1) through (10).

   
   

9. Section 943.1395(6) establishes certain lesser penalties for application in appropriate cases.

   
   

10. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to that conclusion are dissimilar to the instant case, the definition of moral character is appropriate and germane to this proceeding:

    
    

    Moral character has used in this statute, means not only the ability to distinguish 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 populous for positions of trust and confidence.

    
    

    In Florida Board of Bar Examiners Ray Collin, G.W.L., 364 So.2d 454 (Fla. 1978) the Florida Supreme Court stated that a finding of a lack of "good moral character" in a case involving admission to the Bar,

    
    

    . . .

    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.

11. See also White v. Bary, 237 So.2d 263 (Fla. 1st DCA 1970).

    
    

12. Rule 11B-27.001(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida correctional officers. The Rule states in pertinent part:

    
    

    (4) For the purpose of the commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, has required by Section 943.13(7), is defined as:...[at Sections (a) and (b)] (a) The perpetration by the officer of an act that would constitute any felony offense, whether criminally prosecuted or not, . . .

    
    

13. Under Sections 944.47(1)(a) and (c), it is a felony to introduce into or possess upon the grounds of a correctional institution any controlled substance defined in Section 893.02(4);

    
    

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not . . .

    
    

    Section 893.13(1)(g) prohibits the unlawful possession of less than 20 grams of cannabis.

    
    

14. The evidence of record supports the conclusion and finding that the Respondent knowingly possessed marijuana (cannabis) on the grounds of Apalachee Correctional Institution. The possession of a controlled substance may be actual or constructive. If an item is in a place over which the person has dominion or control, it is in a constructive possession of that person. When a person is found to be in exclusive possession of an item of contraband, knowledge of its presence may be inferred. See, Florida Standard Jury Instructions in Criminal Cases, Second Edition, "Drug Abuse-Possession," p.225.

    
    

15. The unrebutted evidence in this cause showed that the Respondent was the sole occupant of the room in which the cannabis was found and that room was located on the grounds of the Apalachee Correctional Institution. The Respondent also admitted to Lt. Wester that he had disposed of five other bags of marijuana prior to the arrival of Mr. Davis and Lt. Wester. Finally, the Respondent entered a guilty plea to the marijuana possession charge in the court. He did not explain why he did so if indeed he was innocent, nor did he otherwise dispel the inference of guilt created by the plea. See: Florida Bar

    v. Lancaster, 448 So.2d 1019 (Fla. 1984); Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987).

    
    

16. The unlawful possession of marijuana by the Respondent on the grounds of Apalachee Correctional Institution especially, violated the moral character standard as it has been defined in Rule 11B-27.0011(4), Florida Administrative Code, quoted above.

    
    

17. The Respondent committed an act which constituted the offense of possession of less than 20 grams of cannabis and also which constituted the offense of possession of a controlled substance on the grounds of a correctional

    institution, a felony offense for purposes of the statutory violations enumerated in the above moral character definitional rule. See, Sections 893.13(1)(a)3., (1)(d)3., and (1)(g), Florida Statutes.

    
    

18. In addition to establishing the Respondent's violation of the moral character standard as defined by Rule, the evidence also supports the conclusion that he violated the standard defined by case law. Zemour, supra. speaks of conduct generally acceptable for positions of public trust. The position of correctional officer is one of great public trust and confidence. Section 943.10(2), Florida Statutes, indicates that a correctional officer's primary responsibility is the supervision, protection, care, custody, and control of inmates within a correctional institution. There can be no more basic public expectation than that those who maintain the incarceration of society's lawbreakers must themselves obey the law. Due to the Respondent's violation of the moral character standard enumerated above, he is subject to disciplinary action.

    
    

19. It has been held that the appropriate penalty in a situation such as that at bar is revocation of certification. In Criminal Justice Standards and Training Commission (CJSTC) v. Bradley W. Carlton, DOAH Case No. 90-5013, an officer was found to have been in unlawful possession of less than 20 grams of cannabis as well as a smoking pipe. The Hearing Officer found the misconduct sufficiently egregious to merit revocation of certification. So too in CJSTC v. Angela D. Coley, DOAH Case No. 90-1126, the officer in question was found in possession of a partly-smoked marijuana cigarette. She later pled guilty to possession of less than 20 grams of cannabis and the Hearing Officer's recommendation was for revocation. So too, in CJSTC v. Kenneth C. Green, DOAH Case No. 89-1318, an officer was found to have violated the moral character standard by unlawful, constructive possession of a small quantity of cannabis and cannabis smoking paraphernalia. The Hearing Officer, in recommending revocation of certification held that ". . . the unlawful possession of cannabis can be deemed to be one of the more intolerable violations of police standards." While it is true that Green was a law enforcement officer and Respondent is a certified correctional officer, the two professions are held to the same standards. Section 943.13(7), Florida Statutes. In CJSTC v. Arthur W. Quicksall, DOAH Case No. 89-4000, the Hearing Officer recommended revocation.

    In Quicksall, a correctional officer applicant submitted to a urine drug test which proved positive for the presence of cannabis matabolite. The Hearing Officer recommended the penalty of revocation due to the "seriousness of the offense [use of cannabis] as it relates to the public trust placed in a correctional officer who guards those incarcerated by society." Similarly, in CJSTC v. Clyde Parks, DOAH Case No. 89-6766, a correctional officer was found to have smoked marijuana and given some of it to a formal jail inmate. The Hearing Officer recommended revocation of certification as the appropriate penalty.

    Accord: CJSTC v. Felix A. Diaz, DOAH Case No. 90-5204.

    
    

20. In the case at bar, the Respondent has pled guilty to the marijuana possession charge at issue and also admitted previously smoking the marijuana. His actions and statements indicate that he was familiar with the marijuana, possessed it at Apalachee Correctional Institution, and no evidence has been offered which would support mitigation of the penalty to a lesser one. Accordingly having considered the foregoing findings of fact, it is concluded that the substantial penalty recommended below is warranted.

RECOMMENDATION

Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore

RECOMMENDED:

That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter.

DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 1st day of June, 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact)

1. - 14. Accepted.

COPIES FURNISHED:

Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Jeffrey S. Richter 3881 Highway 273

Graceville, FL 32440

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office 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. 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: 91-006315

Orders for Case No: 91-006315