STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 93-3694
)
ALBERTA HULL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on April 5 and May 24, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Dawn Pompey Whitehurst, Esquire
Assistant General Counsel
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302-1489
For Respondent: Hilliard E. Moldof, Esquire
Hilliard E. Moldof, P.A. 1311 Southeast Second Avenue
Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in Amended Administrative Complaint?
If so, what disciplinary action should be taken against her?
PRELIMINARY STATEMENT
On May 19, 1993, the Criminal Justice Standards and Training Commission (hereinafter referred to as either the "Commission" or "Petitioner") issued an Amended Administrative Complaint alleging that Respondent had engaged in the following conduct:
On or about December 11, 1989, Respondent, Alberta Hull, did then unlawfully and knowingly be in possession of a controlled substance, named or described in Section 893.02, Florida Statutes, to wit: cannabis and did introduce the said substance into her body.
On or about December 11, 1989, Respondent, Alberta Hull, did then willfully and knowingly give a false statement to the Broward County Sheriff's Office during an internal investigation.
According to the Amended Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(6),(7), Florida Statutes and Rule 11B- 27.0011(4)(c) and (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 denied the allegations of wrongdoing advanced in the Amended Administrative Complaint and requested a formal hearing. On June 30, 1993, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.
At the hearing held in this case on April 5 1/ and May 24, 1994, Petitioner presented the testimony of four witnesses: Lieutenant Charles Bass of the Davie Fire Department; Detective Wayne Boulier of the Davie Police Department; Detective Carol Dansky of the Broward County Sheriff's Office; and Dr. John Heveran, a toxicologist employed as the Director of Forensic Toxicology by Metpath Laboratories in Teterboro, New Jersey. In addition to the testimony of these four witnesses, Petitioner offered, and the Hearing Officer received, four exhibits into evidence. Respondent, in addition to her own testimony, presented the testimony of Charles Maxfield, her former housemate. She offered no documentary evidence.
At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. The deadline established by the Hearing Officer was twenty days from the date of the filing of the complete hearing transcript with the Division of Administrative Hearings.
The complete hearing transcript was filed with the Division of Administrative Hearings on June 20, 1994. On July 5, 1994, Respondent filed a motion requesting an extension of the deadline for the filing post-hearing submittals. By order issued July 7, 1994, the motion was granted and the deadline was extended to July 29, 1994.
Both parties timely filed proposed recommended orders on July 29, 1994.
Each of these proposed recommended orders contain what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made:
Respondent is now, and has been since October 13, 1981, certified by the Commission as a correctional officer. She holds certificate number 3-81- 5000-00.
At the time of the incidents alleged in the Amended Administrative Complaint, Respondent was employed as a correctional officer with the Broward County Sheriff's Department (hereinafter referred to as "BSO").
On November 9, 1989, Lieutenant Charles Bass of the Davie Fire Department and other Davie Fire Department personnel were dispatched to a residence located at 13710 Southwest 36th Court in Davie, Florida, to respond to a report of a gasoline spill inside the structure.
When Lieutenant Bass arrived on the scene, he was met outside the residence by Respondent, who identified herself as the owner and a resident of the home.
Respondent told Lieutenant Bass that, upon returning home that day, she had discovered that someone had apparently entered the residence during her absence and spilled gasoline on the carpeting.
In view of the information with which he had been provided, Lieutenant Bass contacted the BSO Bomb and Arson squad, as well as the Davie Police Department, to request that a criminal investigation be initiated.
After having done so, he entered the home and found that the living room carpeting was saturated with gasoline.
To reduce the danger of an explosion or fire, it was necessary to remove the gasoline-saturated carpeting from the home.
Before this could be accomplished, however, the furniture that was on the carpeting had to be moved.
One of the pieces of living room furniture that Lieutenant Bass and his colleagues had to move was a recliner.
Under the recliner was an ashtray that contained the remnants of two hand-rolled, unfiltered cigarettes.
Lieutenant Bass noticed the ashtray and its contents when the recliner was lifted off the floor.
He thought that, given their appearance, the cigarette remains in the ashtray might possibly contain marijuana. He therefore brought the matter to the attention of the law enforcement officers who had arrived on the scene.
One of these law enforcement officers was Detective Wayne Boulier of the Davie Police Department, who had extensive training and experience in the identification of illegal substances.
Detective Boulier, based upon his visual inspection of the cigarette remains in the ashtray, believed that they contained marijuana.
He then field-tested the cigarette remains using a Valtox disposal kit. The results were positive for the presence of cannabis.
Detective Boulier then confiscated the cigarette remains.
When he returned to police headquarters, he placed the suspected contraband in the police property room.
Before completing his report of the incident, Detective Boulier interviewed various people, including Respondent.
In his completed report, Detective Boulier noted that marijuana had been found in Respondent's home.
A copy of the report was sent to BSO, Respondent's employer.
On December 11, 1989, after reviewing the report, Lieutenant Mike Ryan, the Executive Officer of BSO's Internal Affairs Division, assigned Detective Carol Dansky, one of his subordinates, to investigate the matter. Detective Dansky was instructed to contact Respondent and inquire if she would undergo urinalysis testing.
Detective Dansky and Respondent were acquaintances. They had previously worked together in BSO's Internal Affairs Division.
The same day that she was assigned the case Detective Dansky telephoned Respondent at the detention facility at which Respondent was working and asked Respondent to report to the Internal Affairs Division office to see her as soon as possible. Detective Dansky did not volunteer why she wanted to meet with Respondent and Respondent did not ask Detective Dansky to explain the purpose of the proposed meeting.
Respondent complied with Detective Dansky's request and reported to the Internal Affairs Division office later that day.
Detective Dansky informed Respondent of the report that had been received from the Davie Police Department regarding the discovery of marijuana in Respondent's home and that, as a result of this report, BSO's Internal Affairs Division was requesting 2/ that Respondent provide a urine sample for drug testing.
Respondent freely and voluntarily consented to provide Detective Dansky with the requested urine sample.
She indicated to Detective Dansky that she was in a hurry and wanted to get the matter over with quickly.
Urine samples collected by BSO's Internal Affairs Division were tested and analyzed by Metpath Laboratories (hereinafter referred to as "Metpath"). 3/
Metpath provided BSO with sterile containers for the storage of the samples, 4/ as well as identifying labels and forms which were to be filled out and sent with the samples.
Detective Dansky went to where these materials were kept and obtained a sterile container and the requisite form and labels. She also obtained from this area some food coloring and a clean styrofoam cup that, by all appearances, had not been used previously.
Detective Dansky then walked with Respondent to the ladies' room.
Upon entering the ladies' room, Detective Dansky went into one of the stalls and placed food coloring in the toilet bowl, after which she went to the sink in the ladies' room to wash her hands. While Detective Dansky was washing her hands,
Respondent went into the stall that Detective Dansky had vacated and urinated into the clean styrofoam cup that Detective Dansky had given to her for that purpose.
Respondent came out of the stall holding the styrofoam cup containing her urine sample in her hand.
She then poured the urine sample from the styrofoam cup into the Metpath-provided sterile container.
After the styrofoam cup was emptied, it was discarded in the waste basket in the ladies' room.
Detective Dansky promptly sealed the container into which Respondent's urine sample had been poured. The container was sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious.
Taking the sealed container with her, Detective Dansky, accompanied by Respondent, walked back to her office. In her office, Detective Dansky filled out a Metpath Drug Screen Test Requisition (Chain of Custody) form. On the line on the form where the "Patient Donor Signature" was supposed to be placed, Respondent, consistent with accepted BSO practice and policy designed to protect the confidentiality of test results, instead put her initials, as well as her BSO computer control number, 2559.
After the form was completed, Detective Dansky placed green labels, each bearing the same unique identifying number, on the form and the sealed container. She then put the completed form and the container in an envelope.
The envelope was stored in a refrigerator until it was picked up by a courier.
The envelope was delivered to Metpath's forensic laboratory later in the day on December 11, 1989.
The sealed container with Respondent's urine sample was received in good condition without any evidence of tampering.
At the laboratory, the sample was kept in a secure manner throughout the testing process.
Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample.
An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of the unique metabolite of tetrahydrocannabinol (THC), which is produced when marijuana is ingested and metabolized in the body.
Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method currently available, was utilized.
The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of the THC metabolite in a concentration of 27 micrograms per liter. 5/
The microgram per liter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana prior to the collection of her urine sample.
Passive inhalation of another's secondhand marijuana smoke would produce much lower results.
BSO's Internal Affairs Division received the results of the testing on December 15, 1989.
On December 20, 1989, Detective Dansky took a statement from Respondent.
In her statement, Respondent willfully and knowingly provided false information when she denied using marijuana.
Respondent also denied that Detective Boulier had informed her that marijuana had been found in her home.
BSO eventually terminated Respondent's employment on the grounds that Respondent had engaged in the illegal use of drugs and had provided false information during an internal investigation.
CONCLUSIONS OF LAW
The Charges
The instant Amended Administrative Complaint alleges that "[o]n or about December 11, 1989, Respondent, Alberta Hull, did then unlawfully and knowingly be in possession of a controlled substance, named or described in Section 893.02, Florida Statutes, to wit: cannabis and did introduce the said substance into her body" and that "[o]n or about December 11, 1989, Respondent, Alberta Hull, did then willfully and knowingly give a false statement to the Broward County Sheriff's Office during an internal investigation." The Amended Administrative Complaint further charges that, in engaging in such conduct, Respondent "violate[d] the provisions of Section 943.1395(6),(7), Florida Statutes and Rule 11B-27.0011(4)(c) and (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."
Pertinent Statutory Provisions
At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a correctional officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."
At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized the Commission to revoke the certification of a correctional officer who has failed to maintain "good moral character . . . as required by s. 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties upon such an officer.
Burden of Proof
In those cases where revocation or suspension of a correctional officer's certification is sought based upon her alleged failure to maintain "good moral character," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington,
510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Lack of "Good Moral Character" Defined
"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 person demonstrates a lack of "good moral character" when she engages in "acts and conduct which would cause a reasonable [person] 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).
The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides, in pertinent part, as follows:
(4) For the purpose of the Commission's implementation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as: . . .
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 and nation, irrespective of whether such act or conduct constitutes a crime, or
The unlawful use of any of the controlled substances enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C.
Use of Marijuana = Lack of "Good Moral Character"
Marijuana or cannabis is among the controlled substances "enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C."
Its unlawful use by a correctional officer therefore constitutes a failure on the part of the officer to maintain "good moral character," as defined in Rule 11B-27.0011(4)(d), Florida Administrative Code.
Allegation of Use of Marijuana Proven
The record evidence, including, most significantly, the evidence relating to the results of the testing done on the urine sample provided by Respondent, 6/ clearly and convincingly establishes that Respondent knowingly engaged in the unlawful use of marijuana on or about December 11, 1989.
In so doing, Respondent evinced a lack of "good moral character," as alleged in the Amended Administrative Complaint, and therefore is subject to disciplinary action pursuant to Section 943.1395, Florida Statutes.
Knowingly Making Material Misrepresentations = Lack of "Good Moral Character"
A correctional officer who willfully and knowingly makes material misrepresentations during an internal investigation is guilty of failing to maintain "good moral character," as defined in Rule 11B-27.0011(4), Florida Administrative Code.
Allegation of Knowingly Making Material Misrepresentations Proven
The evidence clearly and convincingly establishes that Respondent willfully and knowingly made a material misrepresentation to Detective Dansky during an internal investigation interview when Respondent stated that she had not used marijuana.
In so doing, Respondent evinced a lack of "good moral character," as alleged in the Amended Administrative Complaint, and therefore is subject to disciplinary action pursuant to Section 943.1395, Florida Statutes. 7/
Penalties
At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized the Commission to revoke the certification of a law enforcement officer who has failed to maintain "good moral character" or to impose one or more of the following less severe penalties: suspension of the officer's certification for a period not exceeding two years; placement of the officer on probationary status for a period not exceeding two years, subject to terms and conditions imposed by the Commission; requiring the officer to successfully complete any basic recruit, advanced, or career development training deemed appropriate by the Commission; and the issuance of a reprimand.
Section 943.1395(8)(d), Florida Statutes, mandates that, in determining which of these penalties should be imposed, the hearing officer shall
Adhere to the disciplinary guidelines and penalties set forth in . . . the rules adopted by the commission for the type of offense committed.
Specify in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.
Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines when taking disciplinary action against its employees). Section 943.1395(8)(d), Florida Statutes, further provides that "[a]ny deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify aggravation or mitigation of the penalty [and that such deviation] must be explained in writing by the hearing officer."
The Commission's "disciplinary guidelines and [prescribed] penalties" are found in Rule 11B-27.005, Florida Administrative Code, which provides in pertinent part as follows:
The Commission sets forth below a range of disciplinary guidelines from which dis- ciplinary penalties will be imposed upon certified officers who have been found by
the Commission to have violated section 943.13(7),
F.S. The purpose of the disciplinary guidelines
is to give notice to certified officers of the range of penalties or prescribed penalties which will be imposed for particular violations of section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in paragraph (4), herein. The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of section 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.
When the Commission finds that a certified officer has committed an act which violates section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended
in the following disciplinary guidelines: . . .
For the perpetration by the officer of an act or conduct which would constitute any of the misdemeanor offenses as described in
11B-27.0011(4)(b), F.A.C., but where there was not a violation of section 943.13(4), F.S., 8/ the action of the Commission shall be to impose a penalty ranging from probation to revocation.
Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following: . . .
4. False Reports( . . . 837.05, . . . F.S. 9/
- Revocation . . .
11. Possess or Deliver w/o Consideration not more than 20 grams of Cannabis (893.13, F.S.)- Revocation . . .
For 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 and nation, as described in 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b) above, the action of the commission shall be to impose a penalty
ranging from issuance of a reprimand to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating cir- cumstances include the following: . . .
10. False Reports, Statements, Falsification of Application- Probation to Revocation . . .
Notwithstanding paragraph (4), below, for the unlawful use by the officer of any of the controlled substances enumerated in section
893.13 F.S. or 11B-27.00225 F.A.C., as described in 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose
the penalty of revocation.
The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by evidence presented . . . to a hearing officer if pursuant to Section 120.57(1), F.S., 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 aggravating or mitigating circumstances:
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;
The officer's employment status at the time of the final hearing before the Commission;
The recommendations of character or employment references;
The number of violations found by the Commission;
The number of prior disciplinary actions taken against the officer by the Commission;
The severity of the misconduct;
The danger to the public;
The length of time since the violation;
The length of time the officer has been certified;
The actual damage, physical or otherwise, caused by the misconduct;
The deterrent effect of the penalty imposed;
Any effort of rehabilitation by the officer;
The effect of the penalty upon the officer's livelihood;
The penalties imposed for other misconduct;
The pecuniary benefit or self-gain to the officer realized by the misconduct;
The officer's compliance with the terms and conditions of any Commission-ordered probation;
Whether the misconduct was motivated by unlawful discrimination;
Prior Letter of Guidance;
The effect of disciplinary or remedial action taken by the employing agency and/or recommendations of employing agency administrator.
Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the Hearing Officer is of the view that, given the absence of clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, the Commission should discipline Respondent for her having failed to maintain "good moral character," as alleged in the Amended Administrative Complaint, by revoking her certification.
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 the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking her certification as a correctional officer as punishment therefor.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1994.
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 of Administrative Hearings this 16th day of August, 1994.
ENDNOTES
1/ The hearing was originally scheduled to begin on October 20, 1993, but was continued on three separate occasions, twice at the request of Respondent and once at the request of Petitioner, before it actually commenced on April 5, 1994.
2/ At no time did Detective Dansky order Respondent to provide a urine sample. She simply requested that Respondent do so, albeit without telling Respondent that Respondent had a right to refuse to comply with the request.
3/ Metpath's Director of Forensic Toxicology is now, and was at all times material to the instant case, Dr. John Heveran.
4/ Metpath provides sterile containers to its clients to protect against the possibility of specimen contamination.
5/ Such a concentration of the THC metabolite is microscopic and not visible to the naked eye. Therefore, if the styrofoam cup used to collect Respondent's urine sample had been previously used in the collection of another urine sample and, as a result, when Detective Dansky retreived the cup and gave it to Respondent, it already contained urine in which the THC metabolite was present in a concentration of 27 micrograms per liter, neither Detective Dansky nor Respondent, based upon a mere visual inspection, would have been able to tell that the cup was contaminated with the THC metabolite, although they both certainly would have been able to see the urine in the cup. In their testimony, neither Detective Dansky nor Respondent reported seeing any urine in the cup before Respondent urinated in it.
6/ Given the unrebutted and credible expert testimony of Dr. Heveran on the subject, the Hearing Officer rejects the argument advanced by Respondent that, because the styrofoam cup used to collect the urine sample "was not sterilized or secured in any fashion," the use of the cup "renders the results of the drug screening invalid." As Petitioner points out in its proposed recommended order, in view of Dr. Heveran's testimony, which the Hearing Officer has credited, it is not "a realistic possibility" that the use of the cup in any way contaminated Respondent's urine sample and produced test results that did not accurately reflect the concentration of the THC metabolite in the sample.
The Hearing Officer further disagrees with Respondent that these test results should be excluded from consideration on the ground that they were the product of an unreasonable search and seizure violative of the Fourth Amendment to the United States Constitution. The exclusionary rule is applicable in administrative proceedings only in those limited situations "involving 'egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.'" Valdez v. Department of Revenue, 622 So.2d 62, 63 (Fla. 1st DCA 1993). Such an "egregious violation" was not committed in the instant case. Indeed, there was no Fourth Amendment violation of any kind inasmuch as, even assuming that BSO could not have required an unwilling Respondent to produce a urine sample without violating her Fourth Amendment rights, an examination of the totality of surrounding circumstances reveals that, notwithstanding that she may not have been specifically advised that she had a right to refuse to submit to urinalysis testing, she voluntarily provided a urine sample. See Bailey v. State, 319 So.2d 22, 27 (Fla.
1975)("voluntariness of consent is to be determined from a consideration of the totality of the circumstances;" there is no requirement that the state "prove knowledge of the right [to refuse to consent to search] before a defendant could
give a valid consent;" "knowledge or lack of knowledge [of such right] is a factor which may not be ignored but should be considered along with all other factors"); State v. Diaz, 549 So.2d 759, 760-61 (Fla. 3d DCA 1989)("it is settled that the police need not advise a person that he or she has the right to refuse to consent to a search, . . . nor must it be shown that the person independently had knowledge of the right to refuse consent;" "[s]uch a warning or such knowledge can, of course, be taken into account as one factor in determining whether consent was freely and voluntarily given"); Finney v.
State, 420 So.2d 639, 643 (Fla. 3d DCA 1982)("[t]he warrantless search which was conducted subsequent to the legal stop was valid because of the defendant's consent;" "[t]here is no requirement that the defendant have knowledge of his right to refuse consent to the search").
7/ To the extent that the Amended Administrative Complaint alleges that Respondent made another material misrepresentation when she told Detective Dansky during the same interview that she had not been informed by Detective Boulier that marijuana had been discovered in her home, this allegation should be dismissed because the evidence is insufficient to clearly and convincingly prove the falsity of the statement made by Respondent.
8/ Section 943.13(4), Florida Statutes, requires that the officer "[n]ot have been convicted of any felony or misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States."
No violation of Section 943.13(4), Florida Statutes, is involved in the instant case.
9/ At all times material to the instant case, Section 837.05, Florida Statutes, has provided as follows:
Whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime is guilty of a misdemeanor of the first degree . . . .
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' post-hearing submittals:
The Department's Proposed Findings
1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
7. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
8-12. Accepted and incorporated in substance.
13. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
14-15. Accepted and incorporated in substance.
16. First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted and incorporated in substance.
17-18. Accepted and incorporated in substance.
19. Rejected because of the lack of sufficient supporting evidence. 20-21. Accepted and incorporated in substance.
22. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
23-31. Accepted and incorporated in substance.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. (The Hearing Officer, however, has credited this testimony and relied upon it in making his findings of fact); Second sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
35-40. Accepted and incorporated in substance.
41-43. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
44. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony concerns a matter which, given the factual findings included in this Recommended Order, need not be addressed in an additional finding of fact.
45-46. Accepted and incorporated in substance. Respondent's Proposed Findings
First unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony referenced in the seventh sentence of this paragraph concerns a matter which, given the factual findings included in this Recommended Order, need not be addressed in an additional finding of fact. (The Hearing Officer, however, has credited the testimony referenced in the remaining sentences of this paragraph and relied upon such testimony in making his findings of fact.)
Second unnumbered paragraph: First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony concerns a matter which, given the factual findings included in this Recommended Order, need not be addressed in an additional finding of fact.
Third unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony concerns a matter which, given the factual findings included in this Recommended Order, need not be addressed in an additional finding of fact.
Fourth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony referenced in the second sentence of this paragraph concerns a matter which, given the factual findings included in this Recommended Order, need not be addressed in an additional finding of fact. (The Hearing Officer, however, has credited the testimony referenced in the first sentence of this paragraph and relied upon such testimony in making his findings of fact.)
Fifth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary and recital of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony referenced
in the ninth, tenth and eleventh sentences of this paragraph concerns matters which, given the factual findings included in this Recommended Order, need not be addressed in additional findings of fact. Furthermore, to the extent that the third and fourth sentences of this paragraph suggest that it was Detective Dansky's testimony that she ordered Respondent to provide a urine sample, they inaccurately summarize the gist of Detective Dansky's testimony on the subject. (The Hearing Officer, however, has credited the testimony referenced in the remaining sentences of this paragraph and relied upon such testimony in making his findings of fact.)
Sixth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. (The Hearing Officer, however, has credited the testimony referenced in this paragraph and relied upon such testimony in making his findings of fact.)
Seventh unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony referenced in the first four sentences of this paragraph concerns matters which, given the factual findings included in this Recommended Order, need not be addressed in additional findings of fact. (The Hearing Officer, however, has credited the testimony referenced in the last sentence of this paragraph and relied upon such testimony in making his findings of fact.)
Eighth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. (The Hearing Officer, however, has credited the testimony referenced in this paragraph and relied upon such testimony in making his findings of fact.)
Ninth, tenth and eleventh unnumbered paragraphs: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. (The Hearing Officer, however, has credited the testimony referenced in these paragraphs and relied upon such testimony in making his findings of fact.)
Twelfth unnumbered paragraph: First and second sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. (The Hearing Officer, however, has credited the testimony referenced in these sentences and relied upon such testimony in making his findings of fact;) Third, fourth and fifth sentences: Rejected as findings of fact because they constitute argument regarding the credibility of testimony adduced at hearing
rather than findings of fact. Moreover, the argument is not persuasive. Rather than reject the testimony in question as Respondent argues he should, the Hearing Officer has credited and relied upon it.
Thirteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the testimony referenced in this paragraph concerns matters which, given the factual findings included in this Recommended Order, need not be addressed in additional findings of fact.
Fourteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. (The Hearing Officer has considered the testimony of Respondent's former housemate, Charles Maxfield, which is referenced in this paragraph, along with the other evidence adduced at hearing, and has found, given the clear and convincing evidence presented by Petitioner supporting such a finding, that, whether Maxfield was aware of it or not, Respondent used marijuana on, or sometime before, December 11, 1989.)
Fifteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a
finding of fact based upon such testimony. Moreover, to the extent that the third sentence of this paragraph suggests that it was Respondent's testimony that Detective Dansky ordered Respondent to provide a urine sample, it inaccurately summarizes the gist of Respondent's testimony on the subject. (The Hearing Officer, however, has credited the testimony referenced in the remaining sentences of this paragraph and relied upon such testimony in making his findings of fact.)
COPIES FURNISHED:
Dawn Pompey Whitehurst, Esquire Assistant General Counsel
Florida Department of Law Enforcement
P.O. Box 1489
Tallahassee, Florida 32302
Hilliard E. Moldof, Esquire Hilliard E. Moldof, P.A.
1311 Southeast Second Avenue Fort Lauderdale, Florida 33316
Leon Lowry, II, Director Criminal Justice Standards
and Training Commission 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, Esquire 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 of time 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.
| Issue Date | Proceedings |
|---|---|
| Jul. 25, 1995 | Final Order filed. |
| Dec. 20, 1994 | (Respondent) Notice of Withdrawal of Counsel filed. |
| Dec. 19, 1994 | (Respondent) Notice of Withdrawal Of Counsel filed. |
| Jul. 29, 1994 | Petitioner`s Proposed Findings of Fact and Conclusions of Law filed. |
| Jul. 29, 1994 | Respondent`s Proposed Recommended Order filed. |
| Jul. 16, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held April 5 & May 24, 1994. |
| Jul. 07, 1994 | Order sent out. (proposed recommended orders shall filed no later than 7/29/94) |
| Jul. 05, 1994 | (Respondent) Motion for Extension of Time To File Proposed Recommended Order filed. |
| Jun. 20, 1994 | Transcript (Volumes 1&2) filed. |
| Apr. 12, 1994 | Order sent out. (hearing set for 5/24/94; 2:00pm; Ft. Lauderdale) |
| Apr. 05, 1994 | CASE STATUS: Hearing Partially Held, continued to 5/24/94; 2:00pm; Ft. Lauderdale) |
| Feb. 08, 1994 | Order sent out. (hearing rescheduled for 4/5/94; 10:50am; Ft. Lauderdale) |
| Feb. 07, 1994 | (Respondent) Motion to Continue Hearing filed. |
| Feb. 04, 1994 | (Respondent) Motion to Continue Hearing filed. |
| Jan. 28, 1994 | Subpoena Ad Testificandum filed. (From Dawn P. Whitehurst |
| Nov. 19, 1993 | Order sent out. (hearing rescheduled for 2/8/94; 10:15am; Ft. Lauderdale) |
| Nov. 16, 1993 | (Petitioner) Motion for Continuance filed. |
| Nov. 02, 1993 | Second Notice of Hearing sent out. (hearing set for 11/23/93; 10:00am; Ft. Lauderdale) |
| Nov. 01, 1993 | (ltr form) Joint Response to Order filed. (From Hilliard E. Moldof) |
| Oct. 05, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report within 12 days) |
| Sep. 27, 1993 | Motion for Continue Hearing filed. |
| Aug. 10, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Aug. 10, 1993 | Notice of Hearing sent out. (hearing set for 10/20/93; 9:00am; Ft Lauderdale) |
| Jul. 23, 1993 | Ltr. to SML from D. Whitehurst re: Joint Reply to Initial Order filed. |
| Jul. 13, 1993 | Initial Order issued. |
| Jun. 30, 1993 | Agency referral letter; Amended Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 22, 1995 | Agency Final Order | |
| Jul. 16, 1994 | Recommended Order | Corr Officer who unlawfully used marijuana and lied about such use during investigation guilty of failing to maintain good moral character. Revocation recommended. |
