vs. ) CASE NO. 95-3844
MARY J. BYRD, )
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 19, 1995, in Perry, Florida.
For Petitioner: Richard D. Courtemanche, Jr., Esquire
For Respondent: Robert J. Schramm, Esquire
The issue to be resolved in this proceeding concerns whether the Respondent has violated Section 943.1395(6),(7), Florida Statutes, and Rule 11B- 27.0011(4)(a) and (c), Florida Administrative Code, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, concerning good moral character.
This cause arose upon the filing of an Administrative Complaint against the Respondent by the Petitioner agency on February 21, 1993. The Complaint charges that on or about July 29, 1992, the Respondent was guilty of knowingly and unlawfully possessing more than 20 grams of a controlled substance, to wit: cannabis. On or about March 24, 1993, the Respondent elected to request an administrative proceeding, pursuant to Section 120.57, Florida Statutes. The case thereafter was forwarded to the Division of Administrative Hearings and ultimately the undersigned Hearing Officer on July 27, 1995.
The cause came on for hearing as noticed. The Petitioner adduced the testimony of two witnesses at hearing and had Exhibits 1, 2 and 4 admitted into
evidence. The Petitioner's Exhibit 3 was identified but later withdrawn and not offered. The Respondent adduced the testimony of one witness, the Respondent herself, and the Respondent's Exhibit 1 was admitted into evidence.
The parties were afforded the opportunity to submit proposed findings of fact and conclusions of law in the form of proposed recommended orders.
Subsequent to the hearing, the Petitioner filed a Proposed Recommended Order, but none has been filed by the Respondent. The proposed findings of fact submitted by the Petitioner are addressed herein and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.
The Petitioner is an agency of the State of Florida charged under Chapter 943, Florida Statutes, and related rules, with regulating the licensure status, including determination of entitlement to licensure, of law enforcement and correctional officers in the State of Florida. The agency is also charged by the Legislature with regulating and enforcing the practice standards for certified law enforcement officers, including correctional officers, embodied in Chapter 943, Florida Statutes, and related rules.
The Respondent was certified by the Criminal Justice Standards and Training Commission (Commission) on or about March 7, 1991. She was issued corrections certification number 45-90-502-11. From March of 1991 through July 31, 1992, the Respondent was employed as a corrections officer for the Taylor County Sheriff's Office. She has no criminal record and no record of administrative discipline of any sort.
During the course of her training to be a corrections officer, the Respondent received classroom training in the identification of controlled substances, including cannabis (marijuana). This training included the viewing of actual cannabis in the classroom but did not include training in recognizing it as a growing plant in the field.
Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company. On or about July 29, 1992, and until sometime in February of 1995, he was employed by the Taylor County Sheriff's Office. Danny Williams is an investigator with the Taylor County Sheriff's Office and has been employed in that capacity since January of 1990. Investigator Williams has had training in the aerial detection, and other means of identification, of marijuana. He participates in four to eight flights per year in aircraft searching for marijuana plants, essentially in rural areas of Taylor County.
On July 29, 1992, Investigator Williams was the passenger in a helicopter, provided to the Taylor County Sheriff's Office by an unknown agency, participating in an aerial search for marijuana plants. During this search, he noticed what appeared to be marijuana plants growing in or adjacent to the backyard of a residence which proved to be the Respondent's residence. Investigator Williams, upon being landed at the airport, entered his patrol vehicle and drove to the residence of the Respondent and her husband, James Byrd.
On route to that location, Investigator Williams, presumably by radio communication, summoned other law enforcement officers of the Taylor County Sheriff's Office. He was, therefore, met at the front gate of the residence premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and others. The front gate was on the portion of the premises immediately adjacent
to the public thoroughfare by which the premises are normally entered by vehicles. The residence premises contained a wood-frame house on a well- landscaped yard of a fairly-open character with few or no trees. The rearward portion of the premises, analogous to the "backyard", was that portion of the premises most distant from the public highway (toward which the house faces). It is observable by an observer looking in the opposite direction or away from the public highway upon which the premises fronts. In this rearward portion of
the premises, in a rearward corner of the backyard, there was a dog pen, located approximately 75-100 feet from the northwest corner of the rear portion of the house.
Investigator Williams and Deputy Morgan observed an individual, who proved to be James Byrd, the Respondent's husband, recognized by Investigator Williams, standing behind the dog pen. They observed him in that location attempting to cut down several plants which were growing there. Deputy Morgan stopped Mr. Byrd from cutting any other plants and removed him from the immediate area. He was ultimately taken into custody that day. The plants he was attempting to cut down proved to be cannabis plants.
Investigator Williams and Deputy Morgan observed 13 cannabis plants growing in that location behind the dog pen. Most of the plants were approximately 10-12 feet tall. Investigator Williams took samples from the grown plants, and a laboratory analysis proved the plants to be cannabis and that the samples taken totaled 27.3 grams of cannabis.
The cannabis plants were in plain view from the residence. They were tall enough to be observed over the top of the dog pen, which lay between the back wall and back door of the residence, the site where the plants were growing and immediately adjacent to it. Deputy Morgan described the area where the cannabis was located as being in a clear, open area with grass but no high weeds which would conceal the cannabis from the plain view from the rear portion of the residence.
Investigator Williams has received some training in the growth rate of cannabis plants so that he could make a somewhat educated estimate of the age of the plants found behind the dog pen. He estimates that they could have grown to a height of 10-12 feet in approximately 60 days, depending upon climatic conditions, care and maintenance, and the amount of fertilization they received.
The mature plants, as well as the small plants, discovered growing adjacent to the dog pen, would in Investigator Williams' experience, produce something in excess of 13 pounds of cannabis leaf.
Investigator Williams and Deputy Morgan also observed a bucket and flowerpot in the backyard containing several smaller cannabis plants. These containers and plants were in plain sight from the rear portion of the residence.
Deputy Morgan escorted Mr. Byrd to the residence and obtained his consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation, discovered a partially-smoked cannabis cigarette in a desk drawer in the family room of the residence and also found rolling papers and marijuana-smoking paraphernalia in the desk, as well.
Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his wife, the Respondent. In the bedroom closet, he located approximately one-half pound of marijuana in a grocery bag on the floor in the middle of the closet.
In the closet were both male and female clothing, with each spouse having a designated side of the closet for their personal clothing and other items. The middle of the closet contained a filing cabinet, which was for the Respondent's use. A laboratory analysis determined that the bag found on the closet floor contained approximately 118 grams of cannabis.
Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the cannabis found belonged to him and that smoking cannabis was a bad habit he acquired during his service in the Vietnam War. He stated to them that he grew the cannabis for personal consumption and was not engaged in the sale or distribution of it. He stated that he smoked cannabis but that his wife, the Respondent, did not. He never stated to law enforcement officers that the Respondent had knowledge of the cannabis in the residence and on the surrounding curtilage.
The Respondent was not present at the residence that day when the officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force Base in Valdosta, Georgia, at the time and only learned of her husband's arrest and the incident when she returned late that afternoon. She learned of it from her father or daughter, who also resided on the premises. There is a separate mobile-home residence on the same parcel of property as the house in which the Respondent and her husband reside. Although the officers, on the day in question, interviewed Mr. Moore, the Respondent's father, who resided in the mobile home, they never questioned the Respondent and charged no one other than James Byrd.
The Respondent was terminated from her position with the sheriff's office on approximately July 31, 1992 because of the above-described incident. After her termination from her job with the sheriff's office, the charges against her husband, James Byrd, were "nol prossed".
The Respondent and Mr. Byrd have been married for approximately 35 years. They have resided in Taylor County since November 1, 1979 and have resided in the same residence where the cannabis was found and shared the bedroom and closet where some of it was found since that time, including on and around the date in question. The Respondent was not a record title holder of the premises on which the cannabis was found but considered herself as having a practical ownership interest in the residence.
Despite his statement to law enforcement authorities that he had had the habit of smoking cannabis since returning from the Vietnam War, the Respondent denied knowledge of her husband's cannabis habit. Although they had been married for 35 years and resided in the same residence, including at the times when the marijuana in question was placed in the residence and grown in the backyard of the residence, the Respondent maintains that she had no knowledge of its presence on the premises. She maintains that she had no knowledge of her husband's cultivation and use of marijuana.
Neither the Respondent's husband nor any other witness testified in corroboration of the Respondent's denial of knowledge of the presence of cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd commonly cared for the dogs which are normally kept in the dog pen, and the Respondent seldom went to that vicinity of the backyard, the marijuana plants growing adjacent to the dog pen were in plain view from the rear portion of the house itself.
The Respondent's testimony is the sole testimony that is exculpatory. She is an "interested witness" testifying on her own behalf, in a proceeding where she can potentially lose the valuable right to practice her livelihood.
In consideration of the totality of the evidentiary circumstances and the demeanor of the witnesses, it is found that, indeed, she knew of the presence of the growing marijuana on the premises and the marijuana which was found inside the residence. It simply strains credulity beyond acceptance that she could live with her husband in the same residence, in the same bedroom and use the same closet for a substantial period of years and not know of the marijuana smoking habit he freely admitted to and his activities involved in growing marijuana in plain sight on their marital premises.
In addition to the Respondent having no record of any criminal or administrative offense, the above-found misconduct was not facilitated by the Respondent's official authority nor did it occur while she was performing her duties. There was no damage or danger caused to others by her conduct. The Respondent gained no pecuniary benefit from the misconduct and its effects, through penalties, can obviously damage her livelihood, which is already the case. Finally, her employing agency has already imposed the discipline of termination approximately three and one-half years ago. Rule 11B-27.005(6)(a- v), Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a law enforcement officer in Florida, as pertinent hereto, at Subsection (7):
(7) Have a good moral character as determined by a background investigation and the procedures established by the commission.
Section 943.1395(7), Florida Statutes, establishes the penalties which may be imposed against an officer for violating the "good moral character" standard embodied in Section 943.13(7), Florida Statutes. That paragraph provides that upon a finding by the Commission that a certified officer has not maintained good moral character, as defined in rules adopted by the Commission, establishing statewide standards, then an order may be entered imposing the penalties of revocation, or suspension for a period not to exceed two years, or placement on probationary status subject to terms and conditions imposed by the Commission.
Rule 11B-27.0011(4), Florida Administrative Code, provides that any of the penalties enumerated in Subsection 943.1395(6) or (7), Florida Statutes, may be imposed for a certified officer's failure to maintain good moral character. "Good moral character" is defined as the perpetration of an act which would constitute any felony offense, whether criminally prosecuted or not, or the perpetration by the officer of an act which would constitute certain misdemeanors or criminal offenses, whether criminally prosecuted or not, enumerated in Subparagraph (b) of this rule, including Sections 893.13(1)(a)3., (1)(d)3., (1)(g), (2)(a)3., (3), (5)(c), (6)(b), (7)(b), which relate to possession of a controlled substance. Thus, the rule defines failure to maintain good moral character in terms of the possession of a controlled
substance, as defined in Section 893.13, as well as Rule 11B-27.00225, Florida Administrative Code. Specifically, Section 893.13(1)(a), Florida Statutes, prohibits the unlawful possession of more than 20 grams of cannabis and states that any person in violation of Section 893.03(1)(c), Florida Statutes, commits a felony of the third degree. Thus, the possession of more than 20 grams of cannabis in the subject situation, which was proven, constitutes an act which would be a felony of the third degree, whether or not it is prosecuted, as envisioned in the definition of "good moral character" in the above Rule 11B- 27.0011(4), Florida Administrative Code.
In the case of Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), a beverage-license applicant was denied a license after a finding that the owner of the establishment was not of good moral character. The definition of moral character enunciated by the court is significant and applicable to this case:
Moral character as used in this statute, 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 quality generally acceptable to the populace for positions of trust and confidence.
Similarly, in Florida Board of Bar Examiners Re: G.W.L., 364 So.2d
454 (Fla. 1978), the Supreme Court of Florida stated:
In our view a finding of a lack of 'good moral character' should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase 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. See also White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).
In Brown v. State, 412 So.2d 420 (Fla. 4th DCA 1982), in facts similar to the instant case, the Fourth District Court of Appeal affirmed the conviction of a defendant who was convicted of possession of more than five grams of marijuana. The Court stated the general rule concerning the necessary proof of knowledge of a defendant, stating:
If the area in which a contraband substance is found is within the exclusive possession
of the accused, his knowledge of its presence, and his ability to maintain control over it, may be inferred. If the area is only in his joint possession, his knowledge of the pre- sence of the contraband on the premises and his ability to maintain control over it will not be inferred but must be established by other proof. This proof may consist of circumstantial evidence from which a jury
might properly infer that the accused had knowledge of the presence of the contraband and an ability to control it.
In Brown, a court determined that a jury could reasonably infer that the defendant had dominion and control over the controlled substances where the defendant was the owner of the house and that the defendant lived literally in the midst of all of the seized drugs and paraphernalia.
The Florida Supreme Court, in affirming Brown, went further in determining that the trier of fact could reasonably determine constructive possession. The Court stated:
In the instant case the knowledge element is met because the contraband was in plain view in common areas throughout the house. The dominion and control element is met be- cause Brown, as resident owner of his home,
had control over the common areas. Therefore, the elements of knowledge and control have been satisfied, and, as the district court found, the facts presented at trial were sufficient to create a jury question as to constructive possession.
In the instant situation, although the Respondent was not present when the contraband was found, the cannabis plants found in the backyard had clearly been there at least two months, judging from the size they had obtained. It is reasonable to infer that they were there at the same time as the Respondent, since she was a permanent inhabitant of the premises and had only left the premises that morning.
The evidence presented by the Respondent in the form of her own testimony that she had no knowledge of the presence of cannabis is wholly insufficient to advance her case in that respect. The Respondent is facing the revocation of her certificate, which is the valuable right to practice her livelihood. This revocation would preclude her from being employed within the field permanently. This raises such an interest in the outcome of the instant action as to bring into issue the credibility of the Respondent as a witness when she testifies in this uncorroborated manner, in the face of contrary circumstantial evidence. It is noteworthy that no other person was advanced to testify in corroboration of her lack of knowledge of the presence of the contraband and lack of knowledge of her husband's use of it. Although her husband stated to law enforcement officers that on the date of his arrest, the substance in question was his and that his wife did not use it, he did not testify at the hearing that she had no knowledge of the existence of the substance on the premises, including in her own closet. See, Colbert v. State,
320 So.2d 853 (Fla. 1st DCA 1975); Pittman v. State, 41 So. 385 (Fla. 1906).
Here, the evidence shows, in a clear and convincing way, that the Respondent was in knowing, actual or constructive possession of more than 20 grams of cannabis. The evidence and above findings showed that the cannabis plants were discovered approximately 75-100 feet from the Respondent's residence in plain view, towering 12 feet over a dog pen enclosing the Respondent's husband's hunting dogs. There were also two containers containing approximately
23 smaller plants located in the middle of the yard, closer to the house, in plain view. There was a large quantity of cannabis found in a paper bag in the
Respondent's closet which she shared with her husband, on the floor, in the middle of the closet, next to her own file cabinet. There were rolling papers, clippers, and partially-smoked cannabis cigarettes in the desk drawer found in the family room.
The Respondent's husband admitted to the law enforcement officers at the scene that he owned the cannabis plants and the other contraband and cultivated them for his personal use. He stated that he had been using the substance since he returned from the Vietnam War. He was married to the Respondent for all that period of time, approximately 35 years, and had lived in the same home with her for that period of time, including their present residence since 1979. The Respondent had received some training in the identification of controlled substances, including cannabis, although she may not have actually had training in recognizing it growing in the field. However, some of it was found in her closet in the type of harvested form which she clearly had been shown in her training course. It is reasonable under these circumstances to conclude that she had knowledge of the presence of the cannabis on the premises she shared jointly with her husband and had knowledge of his use of it. She "literally lived in the midst of it all". Brown, supra. There is sufficient evidence to infer that the Respondent had dominion and control over the jointly-occupied premises, as well.
Accordingly, clear and convincing has been advanced which establishes that the Respondent committed misconduct which, under the cited statutes, the applicable case law and the above-cited administrative rules, establishes conduct within the definition of lack of good moral character. The position of a law enforcement officer, including correction officer, is one of great public trust. There is no more basic public expectation than that those who are charged with enforcing and upholding the law must themselves obey the law. City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1989).
The Respondent's misconduct is of a serious nature. Pursuant to Section 11B-27.005(3)(a), Florida Administrative Code, the penalty guideline for this offense can include revocation. Because of her previously unblemished record and her understandable, if inexcusable, reluctance to report her husband of 35 years, as well as the mitigating factors found in paragraph 22 above, some mitigation of penalty is warranted.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is
RECOMMENDED that the Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that her certification be suspended for one year, with one additional year of probation, as well as such career development training or re-training as the Commission shall deem appropriate.
DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1996.
APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844
Petitioner's Proposed Findings of Fact 1-20. Accepted.
Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement
Robert J. Schramm, Esquire Post Office Box 29
A. Leon Lowry, II, Director Department of Law Enforcement
P. O. Box 1489
The Hearing Officer's conclusions of law in paragraphs 23-36 of the Recommended Order are approved, adopted and incorporated herein by reference.
Regarding the appropriate penalty for the Respondent, the Commission emphasizes that its penalty guidelines in 1 1B-27.005(5), F.A.C., call for a revocation of an officer's criminal justice certification when that officer has committed the act of illegal possession of a controlled substance -- the offense at issue in this matter. For many years now, the Commission has taken a "zero- tolerance" position regarding those officers who violate the controlled substances laws in chapter 893, Florida Statutes. Officers who admit or who are found to have violated the controlled substances laws have uniformly had their criminal justice certifications revoked.
The Commission agrees with Petitioner that the following aggravating circumstances outweigh those mitigating circumstances found by the Hearing Officer: 1) the severity of the Respondent's misconduct, 2) the danger to the public caused by Respondent's conduct and 3) the deterrent effect to other criminal justice officers of maintaining the Commission's "zero- tolerance" policy with regard to illegal use or abuse of controlled substances. See 1 1B- 27.005(6), F.A.C.
The Commission, therefore, chooses to substitute its collective professional judgment regarding the severity of the Respondent's misconduct and what constitutes an appropriate penalty for the Hearing Officer's recommended penalty in the Recommended Order. Criminal Justice Standards and Training Commission v. Bradley, 596 So.2d 661 (Fla. 1992). The Commission agrees with Petitioner that the penalty called for in the penalty guidelines -- revocation of certification -- is indeed the appropriate penalty in this matter. See 1 1B- 27.005(5), F.A.C.
It is therefore ORDERED AND ADJUDGED that the Respondent's above-referenced criminal justice certification is hereby REVOKED.
This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.
SO ORDERED this 13th day of June,1996.
WILLIAM A. LIQUORI CHAIRMAN
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9. 110, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to Robert J. Schrainm. Esquire, P.O. Box 29 Perry, Florida 32347 by
U.S. Mail on or before 5:00 P.M., this 13th day of June, 1996.
Brenda S. Miller
