STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-2798

)

LINDA L. PAIGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 29, 1997, in Lake Butler, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

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

For Respondent: Linda L. Paige-James, pro se

Post Office Box 614 Macclenny, Florida 32063

STATEMENT OF THE ISSUE

The issue is whether Respondent has failed to maintain the qualifications for certification as a correctional officer, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an

Administrative Complaint seeking to discipline the correctional certification of Respondent Linda L. Paige on May 10, 1997. The complaint alleges that Respondent failed to maintain the qualifications set out under Section 943.13(7), Florida Statutes, which requires an officer to have good moral character. The complaint further alleges that, pursuant to Sections 943.1395(6) and (7), Florida Statutes, Respondent should be disciplined.

On or about May 27, 1997, Respondent requested a formal hearing to contest the charges set forth in the Administrative Complaint. Petitioner referred this case to the Division of Administrative Hearings on June 10, 1997.

On July 7, 1997, the undersigned issued a Notice of Hearing.

This notice advised the parties that the formal hearing would commence on October 29, 1997.

During the hearing, Petitioner presented the testimony of four (4) witnesses and offered two (2) exhibits which were submitted into evidence without objection. The Respondent testified on her own behalf and offered no exhibits for admission into evidence.

The transcript was filed on November 25, 1997. Petitioner filed a Proposed Recommended Order on November 25, 1997.

Respondent did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on August 31, 1994. She was issued correctional certificate number 145457.

2. At all times material to this proceeding, Respondent was employed as a corrections officer at the Union Correctional Institution (UCI). She worked the 4:00 p.m.-12:00 midnight shift.

3. R. E. Jernigan, Correctional Officer Inspector at UCI, received an anonymous telephone call on January 6, 1995. The caller stated that Respondent would be attempting to bring drugs into the institution on that date.

4. As a result of this information, Inspector Jernigan arranged for a search of the correctional officers beginning the 4:00 p.m.-12:00 midnight shift. This included a search of the Respondent and her belongings.

5. Correctional Officer Dana L. Alverez assisted in the search. Respondent gave her jacket to Officer Alverez to search. In the upper left pocket of the jacket, Officer Alverez discovered three fingertips cut from a rubber glove, containing what appeared to be marijuana. Officer Alverez removed the substance from the jacket and turned it over to Lieutenant D.L. Nichols.

6. Lieutenant Nichols retained the substance until he turned it over to Inspector Jernigan.

7. Inspector Jernigan notified the Union County Sheriff's Office about the results of the search. Lieutenant Gary Seay of that office responded to the institution. Lieutenant Seay took possession of the substance and placed Respondent under arrest.

8. Lieutenant Seay packaged and sealed the substance in an evidence envelope. He mailed the package via certified mail to the Florida Department of Law Enforcement laboratory in Jacksonville for analysis.

9. Crime Laboratory Analyst Niels H. Bernstein, tested the substance submitted by Lieutenant Seay in this case.

   Mr. Bernstein examined the package in which the substance was enclosed. He determined that the package was properly sealed. Mr. Bernstein then opened the package and tested the substance according to industry approved methods. He determined that the submitted substance was cannabis, 0.6 grams.

10. UCI terminated Respondent's employment.

    
    

11. Respondent entered into and successfully completed a Pre-Trial Intervention Program in regards to the criminal charges filed against her. Upon completion of the program, the criminal charges were dismissed.

12. Respondent's testimony that she did not know her jacket contained cannabis is not credible.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

14. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Sections 943.13, 943.1395(6), and 943.1395(7), Florida Statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. DCA 1987).

15. Section 943.1395(6), Florida Statutes, states as follows:

    (6) The commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(4) . . . .

    
    

16. Section 943.13(7), Florida Statutes, establishes the following as one of the minimum qualifications for law enforcement officers in Florida:

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

    
    

17. Rule 11B-27.0011(4), Florida Administrative Code, was in effect at the time of the alleged conduct. The rule states as follows in relevant portion:

    1. For the purposes of the commission's implementation of any of the penalties enumerated in Section 943.1395(6) or (7), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), F.S., is defined as:

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

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

18. Section 944.47, Florida Statutes, states as follows in relevant part:

    (1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section,

    to wit:

    * * *

    4. Any controlled substance as defined in s. 893.02(4) or any prescription or nonprescription drug having a hypnotic, stimulating, or depressing effect.

    * * *

    1. It is unlawful for any inmate of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

       
       

       (2) A person who violates any provision of this section as it pertains to an article of contraband described in subparagraph (1)(a)1. or subparagraph (1)(a)2. is guilty of a felony of the third degree . . . . In all other cases, a violation of a provision of this section constitutes a felony of the second degree, . . . .

19. Section 893.02(4), Florida Statutes, refers to Section 893.03, Florida Statutes, which lists cannabis as a controlled substance.

20. Section 893.13(6), Florida Statutes, states in relevant part as follows:

    (6)(a) It is unlawful for any person to be in actual of constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter . . . .

    (b) If the offense is the possession of not more than 20 grams of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree. . . .

21. In the case at bar, clear and convincing evidence established that:

    1. Respondent is certified by the Criminal Justice Standards and Training Commission as a correctional officer.

       
       

    2. Respondent, on or about January 6, 1995, was unlawfully in actual or constructive possession of a controlled substance as defined in Chapter 893, Florida Statutes, to wit: marijuana, in violation of Section 893.13, Florida Statutes.

       
       

    3. Respondent, on or about January 6, 1995, did, or did attempt, to unlawfully introduce that controlled substance into or upon the grounds of the Union Correctional Institution, a state correctional facility in violation of Section 944.47, Florida Statutes.

    
    

22. Petitioner has met its burden of proving that Respondent committed misconduct which, under applicable caselaw and administrative rules, established the lack of good moral character. The position of correctional officer is one of great public trust. There can be no more basic public expectation that that those who enforce the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989). The seriousness of the Respondent's misconduct merits disciplinary action against her correctional certification.

23. Section 943.1395(7), Florida Statutes, provides as follows in relevant part:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a state wide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    
    

24. Section 943.1395(8), Florida Statutes (1995), states as follows in pertinent part:

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures for implementing the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

    * * *

    (d) A hearing officer assigned to conduct a hearing under s. 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7) must in his recommended order:

    1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and

       (7) and the rules adopted by the commission for the type of offense committed.

    2. Specify, in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

    
    

    Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation of the penalty. Any deviation from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the hearing officer.

25. Rule 11B-27.005(5), Florida Administrative Code, provides as follows in relevant part:

    1. 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:

       1. For the perpetration by the officer of an act, which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., . . . the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances, include the following:

          * * *

          6. Introduction of Contraband Revocation

          
          

26. Rule 11B-27.005(6), Florida Administrative Code, provides as follows:

    1. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission if pursuant to Section 120.57(2), F.S., or 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:

       1. Whether the officer used his or her official authority to facilitate the misconduct;

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

       3. The officer's employment status at the time of the final hearing before the Commission;

       4. The recommendation of character or employment references;

       5. The number of violations found by the Commission;

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

       8. The danger to the public;

       9. The length of time since the violation;

       10. The length of time the officer has been certified;

       11. The actual damage, physical or otherwise, caused by the misconduct;

       12. The deterrent effect of the penalty imposed;

       13. Any effort of rehabilitation by the officer;

       14. The effect of the penalty upon the officer's livelihood;

       15. The penalties imposed for other misconduct;

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

       17. The officer's compliance with the terms and condition of any Commission-ordered probation;

       18. Whether the misconduct was motivated by unlawful discrimination;

       19. Prior Letter of Guidance; and

       20. The effect of disciplinary or remedial action taken by the employing agency and/or recommendation of employing agency administrator.

27. The following factors have been considered in mitigation of Respondent's misconduct: (a) Respondent is guilty of only one violation; (b) Respondent has no prior disciplinary history; (c) Respondent was certified in August of 1994, less than one year before she was accused in this case; (d) Respondent's misconduct did not cause any damage, physical or otherwise; and (e) Respondent lost her job with UCI.

28. The following factors have been considered in aggravation of the penalty: (a) Respondent used her official authority to facilitate the misconduct; (b) Respondent committed the misconduct while performing her duties as a correctional officer; (c) Violation of Sections 893.13(6)(a) and 893.13(6)(b), Florida, constitutes a misdemeanor of the first degree, but violation of Section 944.47(1)(a)4., Florida Statutes, is equivalent to a second degree felony; and (d) Respondent has admitted no fault and, therefore, has not made any effort toward rehabilitation.

29. The above referenced mitigating and aggravating factors do not reasonably justify a deviation from the penalty set forth in the disciplinary guidelines.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That Petitioner enter a Final Order revoking Petitioner's

certification as a correctional officer.

DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997.

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Linda L. Paige-James Post Office Box 614

Macclenny, Florida 32063

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire 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 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.

Docket for Case No: 97-002798

Orders for Case No: 97-002798