vs. ) CASE NO. 96-1481
JOHN L. EIFERT, )
Respondent. )
Pursuant to written notice, a formal hearing was held in this case on July 25, 1996, at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Richard D. Courtemanche, Jr.
Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300
The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
On August 9, 1993, the Criminal Justice Standards and Training Commission (Petitioner) filed an administrative complaint against John L. Eifert (Respondent) alleging that, on or about June 14, 1984, Respondent was unlawfully and knowingly in the actual or constructive possession of cocaine. The administrative complaint charged Respondent with violating Subsection 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(a) and/or (c), Florida Administrative Code, by failing to maintain and possess a minimum qualification established in Subsection 943.13(7), Florida Statutes, which requires a law enforcement officer to have good moral character. By an election
of rights filed September 2, 1993, Respondent disputed the allegations of fact contained in the administrative complaint and requested a formal hearing. On March 26, 1996, this matter was referred to the Division of Administrative Hearings.
At the hearing, Petitioner presented the testimony of three witnesses and entered three exhibits into evidence. Respondent testified in his own behalf, presented the testimony of three witnesses and entered four exhibits into evidence. The parties entered one joint exhibit, stipulated facts, into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties filed proposed findings of fact, which have been duly considered.
At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043.
On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time.
The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine.
Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence.
The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine.
The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself.
Officer Goodwin was Respondent's fellow officer with the Miami Beach
P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together.
Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid.
Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there.
When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence.
When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags.
Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job.
On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D.
Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend.
Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done.
Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair.
Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner.
Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years.
In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation.
Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay.
At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach
P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement.
Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident.
In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions.
In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D.
Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D.
However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner.
At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent.
Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around.
By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent.
Petitioner filed the administrative complaint against Respondent on August 9, 1993.
Respondent has no prior disciplinary action against him by Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature. Petitioner must establish by clear and convincing evidence the truthfulness of the allegations set forth in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
One of the minimum requirements for employment as a law enforcement officer established by Section 943.13, Florida Statutes (1983), is that the law enforcement officer must:
(7) Have a good moral character as determined by investigation under procedures established by the commission.
Section 943.145, Florida Statutes (1983), provides in pertinent part:
Grounds for revocation or suspension of certification shall consist of:
Failure of the certificateholder to maintain qualifications established in s.
943.13 or specific standards promulgated thereunder as rules.
* * *
(c) The commission of conduct by the certificateholder constituting ... gross misconduct which seriously reduces the certificateholder's effectiveness to function as a law enforcement officer ....
"What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same available." White v. Beary, 237 So.2d 263, 266 (Fla. 1st DCA 1970). "In the context of professional and occupational licensing, the question of what constitutes 'good
moral character' has been held to be ordinarily a question of fact for the trier of fact." Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So.2d 187, 188 (Fla. 3d DCA 1991).
Cocaine is a controlled substance pursuant to Subsection 893.03(2)(a), Florida Statutes (1983). Subsection 893.13(1)(e), Florida Statutes (1983), prohibits the actual or constructive possession of a controlled substance and provides that any person committing such violation is guilty of a third degree felony. An exception is provided by Subsection 893.13(4), Florida Statutes (1983), for officers or their agents acting in their official capacity.
The evidence is clear and convincing that cocaine was the substance left in Respondent's residence by Goodwin with Respondent's consent and knowledge and was the substance that Respondent disposed of by dumping it into the bay.
Furthermore, the evidence is clear and convincing that Respondent had actual or constructive possession of the cocaine from the time that Goodwin left the cocaine in Respondent's residence until, and during the time, Respondent disposed of it.
Moreover, the evidence is clear and convincing that Respondent's possession of the cocaine was unlawful. Respondent had possession of a controlled substance, and the possession was not a result of Respondent acting in his official capacity.
The evidence is clear and convincing that, at the time of the incident in June 1984, Respondent's conduct evidenced a failure by Respondent to maintain and possess good moral character in violation of Subsections 943.13(7) and 943.145(3), Florida Statutes (1983).
However, Petitioner has failed to demonstrate that Respondent violated Subsection 943.1395(6) and (7), Florida Statutes. No such statutory subsection existed at the time of Respondent's conduct.
Further, Petitioner has failed to demonstrate that Rule 11B- 27.0011(4)(a) and (c), Florida Administrative Code, existed at the time of Respondent's conduct. As a result, Respondent has failed to demonstrate that Respondent violated the said Rule.
Regarding penalty, Petitioner suggests revocation of Respondent's certification. At the time of Respondent's conduct, revocation may have been appropriate. However, there has been a considerable passage of time since Respondent's conduct occurred: over 12 years at the time of the hearing and almost nine years until the filing of the administrative complaint. Moreover, Respondent has remained in law enforcement and he has clearly demonstrated that he has regained and maintained and possesses good moral character. Taking into consideration the totality of the circumstances in this case, revocation is too harsh, but a reprimand and probation is appropriate.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission
DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997.
Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law
Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300
A. Leon Lowry, II, Director Division of Criminal Justice
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
