vs. ) Case No. 98-0062
HARRIETT A. CUMMINGS, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Diane Cleavinger, held a formal hearing in this cause in Lake Butler, Florida, on July 28, 1998.
For Petitioner: Richard D. Courtemanche, Jr., Esquire
For Respondent: Harriett A. Cummings, pro se
The issue in this case is whether the Respondent's corrections officer license should be disciplined.
Petitioner filed an Administrative Complaint against Respondent on June 27, 1997, charging the following:
On or about August 22, 1997, Respondent completed an Election of Rights form in which she disputed the allegations of fact and requested an administrative hearing pursuant to
Section 120.57, Florida Statutes. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings.
At the hearing, the Petitioner presented the testimony of three witnesses and introduced two exhibits into evidence. The Respondent testified on her own behalf. She did not offer any exhibits into evidence.
After the hearing, the Petitioner filed a Proposed Recommended Order on August 27, 1998. Respondent did not file a proposed recommended order.
The Respondent was certified as a corrections officer by the Commission in Corrections on July 1, 1981. She was issued certificate number 61024.
On February 22 and 23, 1996, Bart Knowles, Mark Islar, and Kelly Mims were law enforcement officers assigned to the Special Investigations Unit (SIU) under the Eighth Circuit State Attorney's Office. The SIU was a narcotics enforcement unit consisting of members of the six counties within the Eighth Circuit, under the supervision of the State Attorney. The SIU collectively enforced narcotics violations under state statutes.
The SIU received a call from the Inspector General's office of the Department of Corrections. The SIU was asked to investigate allegations of an individual selling narcotics to an inmate. The allegations were that narcotics were being sold from a residence located at 240 Redwood Drive. The residence is located on the prison grounds of the Union Correctional Institution. The individuals residing at the residence were identified as Respondent and Robert Stoutamire, Respondent's boyfriend.
On February 22, 1996, Agents Knowles, Islar, and Mims met with Inspector Hayes of the Department of Corrections Inspector General's Office. Inspector Hayes indicated to the agents that an inmate had admitted that when he was cleaning the grounds of the institution, he would go to the Respondent's residence for the purpose of purchasing cannabis from Mr. Stoutamire.
The agents provided the inmate with a wire transmitting device, searched the individual, and allowed the inmate to
approach the Respondent's residence, contact Mr. Stoutamire, and attempt to purchase cannabis. The inmate owed Mr. Stoutamire $80 from a previous purchase, so the agents gave the inmate $100 for the prior debt, plus $20 to purchase more cannabis. The inmate contacted Mr. Stoutamire at the residence, who stated that he would have the additional cannabis for the inmate on the following day.
On February 23, 1996, Agents Knowles, Islar, and Mims re-initiated the investigation at Respondent's residence. The agents, along with Inspector Hayes, re-briefed the inmate about how they wanted him to proceed at the residence. The agents searched the inmate to ensure that he wasn't hiding any
narcotics, placed an audio-transmitting device on his person, and then dropped him off near the Respondent's residence.
The inmate was given a verbal signal to indicate to the agents that the transaction was complete. The inmate proceeded to the residence, and tapped on the window of the back door. Mr. Stoutamire met with the inmate at the rear of the residence and gave the inmate a small plastic baggy containing cannabis.
When the inmate gave the verbal signal indicating that he had the narcotics in hand, the agents, who were positioned near the rear of the residence, approached the individuals.
Agent Knowles ordered both the inmate and Mr. Stoutamire to lie on the ground. The agents retrieved a green leafy substance that
appeared to be cannabis lying on the ground next to Mr. Stoutamire.
One of the Inspectors from the Department of Corrections left to pick up the Respondent, who was in a class at the prison firing range. The agents wished to search for more evidence of narcotics in the residence and in Respondent's vehicle.
When the Respondent arrived at the residence, Agent Islar explained to her that Mr. Stoutamire had been arrested, and that the agents had reason to believe that there were narcotics inside her residence and vehicle. Agent Islar requested the Respondent's consent to search her residence and her vehicle. Agent Islar presented the Respondent with a Consent to Search form, and fully explained the form to her. Respondent voluntarily consented to a search of her residence and vehicle.
Respondent told the agents that her car was at the prison firing range. She gave them her car keys. Respondent testified that Mr. Stoutamire had dropped the car off at the firing range earlier that morning because he had had Respondent's vehicle for the last three days prior to this incident. She testified that Mr. Stoutamire and his friends had been driving her car around for the last three days, smoking marijuana in it and partying in it. Respondent also testified that she had not seen her car or purse during that three-day time. However, the evidence shows that Mr. Stoutamire was not driving around in her vehicle smoking cannabis, but was at home when the inmate went by
her residence twice during that three-day time frame. Respondent’s testimony on this point is not credible.
Agent Knowles proceeded to the firing range where he found the Respondent's vehicle. Inspector Hayes unlocked the vehicle with the Respondent's keys.
Agent Knowles found the Respondent's purse in the vehicle. Agent Knowles verified that it was the Respondent's purse by locating her driver's license, other forms of identification of the Respondent, and papers with the Respondent's name on them in the purse. The purse contained a silky lining that was torn inside towards the top of the purse. At the hearing, Respondent acknowledged the purse in the car was her purse.
Agent Knowles pulled back the lining, and discovered what he immediately identified as cannabis in the purse. Agent Knowles also discovered rolling papers in the compartment next to the cannabis. Agent Knowles has seen cannabis over two hundred times prior to this day. The substance found in the purse looked and smelled the same as the cannabis he had seen previously.
Agent Knowles found several cannabis roaches located in the front passenger-side ashtray of the vehicle. Throughout the front floorboard of the vehicle, Agent Knowles discovered cannabis residue. Agent Knowles described the residue as very small leafy, green pieces of cannabis.
Agent Knowles received 40 hours of training from the Institute for Police Training (IPTM) in narcotics investigation and identification, which included instruction in the use of the Valtox narcotics testing kit. Agent Knowles also attended an 80- hour course from the Drug Enforcement Agency, which also included instruction of the use of the Valtox narcotics testing kit.
Agent Knowles has used the Valtox testing kit over 200 times, and has never had a positive test refuted by later chemical analysis.
Agent Knowles field tested the cannabis found in the Respondent's purse, which tested positive. Inspector Hayes and Agent Knowles secured the vehicle, and returned to the residence.
Agent Mims took part in the search of the Respondent's residence. The agents found several small baggies commonly used for narcotics. Some of the baggies contained residue of controlled substances, and some did not.
The agents also found an ashtray containing residue of controlled substances in it. The baggies and ashtray were found in the bedroom that the Respondent and Mr. Stoutamire shared. The baggies and ashtray were found on top of and inside of a dresser in the bedroom. Baggies were found in at least two
dresser drawers. One drawer contained female clothing. However, there were at least three dressers in Respondent's bedroom one of which contained here daughter's clothing. The evidence was not clear as to which dresser the cannabis was found in.
The agents also found narcotics paraphernalia in the living room area, which included a plastic tube with suspected cocaine powder residue in it, and three plastic baggies containing narcotics residue in them.
Respondent knew Mr. Stoutamire smoked marijuana. Respondent's claim of no knowledge of the presence of marijuana in her car and home is not credible since she knew of Mr. Stoutamire's continued use of marijuana and, as the evidence shows lived in the midst of his drug use in her home. Moreover, at all times Respondent was capable of removing the illegal drugs from her home and the prison grounds by preventing Mr. Stoutamire from living there. In short, Respondent knowingly permitted Mr. Stoutamire to introduce illegal drugs onto Union Correctional grounds, a serious offense and lack of the moral character required for correctional officers. Therefore, Respondent’s license should be disciplined.
In Respondent’s favor she has been a corrections officer for seventeen years and has not been the subject of any license discipline during that time.
The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
Section 943.13, Florida Statutes, established the minimum qualifications for certification as a law enforcement or corrections officer in Florida. Subsection (7) provides:
Have a good moral character as determined by a background investigation under procedures established by the Commission.
Section 943.1395(7), Florida Statutes, establishes that:
Upon a finding of the Commission that a certified officer has not maintained good moral character, the definition of which is adopted by rule and is established as a statewide standard, as required by s.
943.13(7), the commission may enter an order imposing one or more of the following penalties:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
"'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 1997). A law enforcement officer demonstrates a lack of "good moral character" when he or she engages in ”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." Florida Board of Bar Examiners Re: G.W.L., 364 so. 2d 454, 458 (Fla. 1978).
In those cases where revocation or suspension of a law enforcement officer's certification is sought based upon the officer's alleged failure to maintain "good moral character," the lack of "good moral character" must be established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Processional 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); and Section 120.57(1)(h), Florida Statutes.
Rule 11B-27.0011(4), Florida Administrative Code, provides, in pertinent part, as follows:
(4) For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:
The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.
The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Section [] . . . 893.13(6)(b) . . . .
"Introduction of Contraband," as described in Section 944.47, Florida Statutes, which provides as follows, is a "felony offense," as that term is used in subsection (4)(a) of Rule 11B- 27.011, Florida Administrative Code:
944.47 Introduction, removal, or possession of certain articles unlawful; penalty. -
(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 . . .
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds 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, punishable as provided in s. 775.082, s. 775.083, or s.
775.084. In all other cases, a violation of a provision of this section constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084. (Emphasis added).
Section 893.13(6)(b), Florida Statutes, one of the statutory provisions referenced in subsection (4)(b) of Rule 11B- 27.0011, Florida Administrative Code, provides as follows:
(6)(a) It is unlawful for any person to be in actual or 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 acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(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, punishable as provided in s. 775.082 or s. 775.083. For the purposes of this subsection, 'cannabis' does not include the resin extracted from the
plants of the genus cannabis, or any compound manufacture, salt, derivative, mixture, or preparation of such resin. (Emphasis added).
In Brown v. State, 412 So. 2d 420 (Fla. 4th DCA 1982), the Fourth District Court of Appeal affirmed the conviction of a defendant who was convicted of possession of more than 5 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 presence 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. (Emphasis added).
In Brown the 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 because
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.
See Brown v. State, 428 So. 2d 250 (Fla. 1983). Although the Respondent was not present when the cannabis was found, like Brown, the narcotics were in plain view, as well as in areas that may reasonably be concluded to be areas under the Respondent's control. It is reasonable to infer that the narcotics paraphernalia was there at the same time as the Respondent.
Mr. Stoutamire had introduced and was selling controlled substances to inmates at the Union Correctional Facility from Respondent's residence located on the prison grounds.
Clear and convincing evidence establishes that the Respondent constructively possessed cannabis and paraphernalia, for the items found in her vehicle, and introduced same into the grounds of the Union Correctional Facility. This establishes the allegations contained in paragraphs 2(a) and (b) of the Administrative Complaint. The evidence of narcotics at the residence is compelling circumstantial evidence to infer knowledge on her part. While her ability to control Mr. Stoutamire's use of marijuana may have been limited, her ability to control his use and possession of marijuana in her house was
not limited since Mr. Stoutamire could live there only at Respondent's consent.
Clear and convincing evidence was presented that the Respondent committed misconduct which, under applicable caselaw and administrative rules, establishes a lack of good moral character. The position of law enforcement or corrections officer is one of great public trust. There can be no more basic public expectation than 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).
Section 943.1395(8)(d), Florida Statutes, mandates that, in determining which of these penalties should be imposed, the administrative law judge 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). 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 administrative law judge."
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:
11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances . . . .
The Commission sets forth in paragraphs (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary 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 (6) of this rule. The disciplinary guidelines are based upon a "single count violation" of each provision listed. 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 which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., 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 Contraband into Jail or Prison (944.47, F.S.) Revocation
For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from, probation of certification to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following: . . . .
11. Possession or Delivery w/o Consideration not more than 20 grams of Cannabis (893.13,
F.S.) 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 the Commission, if pursuant to Section 120.57(2), F.S., or to [an administrative law judge], if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one
(1) 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 in a position requiring Criminal Justice Standards and Training Commission certification 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 or Letter of Acknowledgment.
The effect of disciplinary or remedial action taken by the employing agency and/or recommendations of employing agency administrator.
Multiple counts of violations of Section 943.13(7), F.S.
Any behavior constituting "domestic violence" as defined by Section 741.28(1), F.S., shall be an aggravating circumstance.
Other than Respondent’s clean record of seventeen years, there were no mitigating circumstances in this case. The seriousness of the Respondent's misconduct, the fact that it allowed drug sales to occur on prison grounds to prison inmates and the position which she held merits revocation of her Correctional certification.
moral character, as required by Subsection 943.13(7), Florida Statutes, and that Respondent's certifications be revoked.
DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998.
Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement
Harriett A. Cummings
A. Leon Lowry, II, Director Division of Criminal Justice
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
