STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3962

)

SYDELL T. SALES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on November 30, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr. Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Miriam L. Sumpter, Esquire

2700 North MacDill Avenue, Suite 208

Tampa, Florida 33607 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative complaint filed in this matter on March 28, 1995, the Criminal Justice Standards and Training Commission, (Commission), charged Respondent Sydell T. Sales, with having unlawfully sold cocaine, a controlled substance, on June 29, 1994, in violation of Section 893.13(1)(a), Florida Statutes. Thereafter, Respondent denied the material allegations of misconduct and requested formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Detectives Donna Keene and Rick Sementilli, both employed by the Tampa Police Department, and Penny DuFour, a confidential informant. Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent testified in her own behalf and presented the testimony of Charles Sampson, her former boy friend and the individual with her at the time of the alleged offense. Respondent also introduced Respondent's Exhibit A.

A transcript of the proceedings was furnished and subsequent to the receipt thereof, Counsel for Petitioner submitted proposed Findings of Fact which are accepted and incorporated in this Recommended Order. Counsel for Respondent submitted a legal brief which contains a factual statement incorporated in a discussion of the allegations and her opinion on the sufficiency of the evidence presented. This brief, and the legal authorities submitted by Respondent in support thereof, were carefully considered in the preparation of this Recommended Order but because specific proposed Findings of Fact were not offered, no rulings thereon were made.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991.

   
   

2. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity.

   
   

3. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant.

   
   

4. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made.

   
   

5. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving.

   
   

6. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any

   narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli.

   
   

7. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found.

   
   

8. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine.

   
   

9. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father.

   
   

10. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her.

    
    

11. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening.

    
    

12. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson.

13. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship.

    
    

14. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Commission seeks to discipline Respondent's certification as a corrections officer because of her participation in the sale of cocaine by Mr. Sampson to Ms. DuFour on June 29, 1994. It bases its action on the provisions of Section 943.13, Florida Statutes, which establishes the qualifications for a law enforcement officer in Florida, and, at pertinent part provides that such an individual must:

    
    

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

    
    

17. The burden of proof in this case rests with the Petitioner to establish Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Good moral character is defined in the Florida Administrative Code, at Rule 11B-27.0011(4), relating to imposition of discipline on Florida correctional officers, as:

    
    

    1. The perpetration by the officer of an act which would constitute a felony offense whether criminally prosecuted or not.

       
       

19. The unlawful sale of cocaine is made a second degree felony by Section 893.13(1)(a), Florida Statutes. By the same token, Section 777.011, Florida Statutes, provides:

    
    

    ... whoever commits any criminal offense

    against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or attempted ..., is a principal in the first degree and may be

    charged, convicted and punished as such, whether he is or is not actually or construc-

    tively present at the commission of such an offense.

20. The law is replete with cases standing for the proposition that an individual need not actually participate in unlawful drug activity to be legally charged with commission of a crime related thereto. Constructive possession of narcotics, which comes about through the exercise of control over the place where the narcotics is kept, stored, used or sold, is sufficient to support discipline. See Brown v. State, 412 So.2d 420 (Fla. 4th DCA 1982); Anderson v. State, 624 So.2d 362, 364 (Fla. 1st DCA 1993); Greene v. State, 625 So.2d 1293, 1295 (Fla. 5th DCA 1993).

    
    

21. Though the evidence at first blush seems to indicate Respondent had no participation in the sale of the cocaine to Ms. DuFour, it is clear that her ownership of the vehicle from which the sale was made, her seeming acquiescence in the sale, and her indicated knowledge of an acquiescence in prior sales from the car, constitutes constructive participation by aiding and abetting Sampson's sale to DuFour. She is, therefore guilty of the sale of cocaine sufficient to impose discipline notwithstanding that criminal charges against her never preferred. The standard of proof for administrative discipline is not the same as that for the imposition of criminal sanctions.

    
    

22. The Commission seeks to revoke Respondent's certification, citing the provisions of Section 11B-27.005(3)(a), F.A.C. as the guideline calling for revocation of certification in a case such as this. It claims that the position of corrections officer is one of great public trust and asserts that those who enforce the laws must themselves obey it. One cannot disagree with that philosophy, and an agency has wide latitude in assessing what is an appropriate sanction for misconduct within the parameters of its authority. However, Respondent was not charged with any criminal activity by the State's Attorney, has been free of misconduct for more than a year and is gainfully employed. She enjoys corrections work.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year.

RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 29th day of December, 1995.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208

Tampa, Florida 33607

A. Leon Lowry, II Director

Division of Criminal Justice Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage General Counsel

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

James T. Moore Commissioner

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-003962

Orders for Case No: 95-003962