STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5171

)

FRANK L. HILER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on November 24, 1992, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Steven G. Brady, Esquire

Regional Legal Advisor

Florida Department of Law Enforcement Hurston Building, North Tower

400 West Robinson Street, Suite N209 Orlando, Florida 32801

For Respondent: No appearance.

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offense charged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated January 31, 1991, petitioner charged that respondent, a certified correctional officer, had violated the provisions of Sections 943.13(7) and 943.1395(5) and (6), Florida Statutes, and Rule 11B- 27.0011(4)(b) and/or (c), Florida Administrative Code, by having failed to maintain an essential requirement for certification, to wit: good moral character. The gravamen of the charge is the allegation that on or about June 19, 1989, respondent was unlawfully and knowingly in actual or constructive possession of cannabis, a controlled substance named or described in Section 893.03, Florida Statutes.

Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer

to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, petitioner called James R. Miller, Fredrico Suarez, and Clara Suarez as witnesses, but offered no exhibits. Neither the respondent nor anyone on his behalf appeared at hearing, and no evidence was offered on his behalf.

The transcript of hearing was not ordered so the parties were granted 10 days from the date of hearing within which to file proposed findings of fact. Petitioner elected to file such proposals and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Frank L. Hiler, was employed as a correctional officer at the Martin Correctional Institution (MCI). Although no direct proof was offered on the issue, it is inferred that, since respondent held such a position, he was appropriately certified by the Criminal Justice Standards and Training Commission.

   
   

2. In April 1989, the Florida Department of Law Enforcement (FDLE), at the request of the Department of Corrections (DOC), commenced an investigation to address allegations that narcotics were being smuggled into MCI. During the course of such investigation, information was developed which implicated respondent in such illegal activity.

   
   

3. Pertinent to this case, the proof demonstrates that in June 1989, respondent, on behalf of an inmate, picked up a package containing two ounces of cannabis, commonly known as marijuana, and one or two ounces of cocaine from the inmate's wife in Miami, Florida, for delivery to the inmate at MCI. At the time respondent took possession of the narcotics he was dressed in the uniform of a correctional officer and was driving a van with the DOC logo on the side. Such narcotics were not, however, delivered to the inmate because of events that were to have occurred a day or so later.

   
   

4. Acting on a tip that respondent might be attempting to smuggle narcotics into MCI, FDLE stopped the vehicle in which he was riding outside the complex and conducted a search. Such search uncovered a "small quantity" of marijuana in the vehicle. 1/

   
   

5. Respondent was then offered the opportunity to give a urine sample to test for narcotics, which he declined, but offered to do so at a later date. Respondent did not, however, return to MCI, and his employment was terminated on June 28, 1989, premised on job abandonment.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a correctional officer, which include the following requirement:

   
   

   (7) Have a good moral character . . . .

   
   

8. Section 943.1395, Florida Statutes, establishes the bases for disciplining the certification of a correctional officer. Pursuant to the

   provisions of that section, such certification may be revoked, suspended or otherwise disciplined should the officer fail to maintain a good moral character as required by Section 943.13(7), Florida Statutes.

   
   

9. Pertinent to this case, Rule 11B-27.0011(4), Florida Administrative Code, defines a failure to maintain good moral character, as required by subsection 943.13(7), as:

   
   

   1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections . . . 893.13(1)(a) . . ., F.S., or

   2. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or

      respect for the rights of others or for the laws of the state or nation, irrespective of whether such act or conduct constitutes a crime . . . .

      
      

10. And, Section 893.13, Florida Statutes, referenced in Rule 11B- 27.0011(4)(b), Florida Administrative Code, discussed supra, provides:

    
    

    (1)(a) . . . it is unlawful for any person to sell, purchase, manufacture, or deliver, or

    possess with intent to sell, purchase, manufacture, or deliver, a controlled substance . . .

    
    

    Cannabis is a controlled substance enumerated in Section 893.03(1)(c), Florida Statutes.

    
    

11. Here, petitioner has established by clear and convincing evidence that respondent was in actual possession of cannabis, a controlled substance, with intent to deliver. Under such circumstances, petitioner has demonstrated that respondent violated the provisions of Sections 943.13(7) and 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code.

    
    

12. In determining an appropriate penalty for the offense committed by respondent, consideration has been given to the disciplinary guidelines, as well as the aggravating and the mitigating circumstances, set forth in Rule 11B- 27.005, Florida Administrative Code. Here, considering the offense and circumstances surrounding it, an appropriate penalty is revocation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner render a final order revoking respondent's

certification.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992.

WILLIAM J. KENDRICK

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 of Administrative Hearings this 22nd day of December 1992.

ENDNOTES

1/ The vehicle was not owned by respondent but, rather, by another correctional officer, and respondent was but a passenger in the vehicle. No proof was offered as to where the marijuana was found in the vehicle, or any other persuasive proof that would connect respondent to the marijuana that was uncovered. Accordingly, with regard to such marijuana, it cannot be concluded, based on the paucity of proof, that respondent was in actual or constructive possession of it.

APPENDIX

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

1. Addressed in paragraph 1.

2 & 3. Subordinate to findings contained in paragraph 2. 4-7. Subordinate to findings contained in paragraph 3.

8. Subordinate to findings contained in paragraphs 4 and 5.

COPIES FURNISHED:

Steven G. Brady, Esquire Regional Legal Advisor

Florida Department of Law Enforcement Hurston Building, North Tower

400 West Robinson Street, Suite N209 Orlando, Florida 32801

Frank L. Hiler

204 S.W. 9th Avenue Okeechobee, Florida 34972 and

917 N.W. Park Street Okeechobee, Florida 33472

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

Michael Ramage

Acting General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 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: 92-005171

Orders for Case No: 92-005171