STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

SYLVIA ROBERTSON-AKRIDGE, )

)

Respondent. )

Case No. 01-3802PL

)

RECOMMENDED ORDER

Pursuant to notice, a disputed-fact hearing was conducted in this case on November 26, 2001, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Sylvia Robertson-Akridge, pro se

1530 Northeast 3rd Avenue Gainesville, Florida 32641

STATEMENT OF THE ISSUES

Whether Respondent may be disciplined for failure to maintain the qualifications established by Section 943.13(7),

Florida Statutes, which require that a Correctional Officer and Correctional Probation Officer have good moral character.

Respondent is charged with violating Section 893.13(1) and/or 893.13(6), or any lesser included offenses. See Section 943.1395(6) and/or (7), Florida Statutes, and Rule

11B-27.0011(4)(a), Florida Administrative Code.

PRELIMINARY STATEMENT

On or about September 27, 2001, this cause was transmitted to the Division of Administrative Hearings.

At the disputed-fact hearing on November 26, 2001, Petitioner presented the oral testimony of Debbie Parker, Police Service Technician, Gainesville Police Department; Detective Michael Shawn Mielke, Pasco County Sheriff's Department; Corporal Matthew Nechodorn, Gainesville Police Department; and Carol Ann Starling, Correctional Services Consultant, Department of Corrections. Petitioner had 16 exhibits admitted in evidence.

Respondent testified on her own behalf, and had one exhibit admitted in evidence.

A Transcript was filed on January 8, 2002.

Petitioner filed its Proposed Recommended Order within the time frame stipulated by the parties. Respondent filed no proposed recommended order. Petitioner's timely-filed Proposed Recommended Order has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a certified Correctional and Correctional Probation Officer in the State of Florida. She has been employed in her field for fourteen and a half years, and lost her job as a result of the following events.

2. On October 19, 2000, a search warrant was served at 1530 Northeast 3rd Avenue, Gainesville, Florida, a residence Respondent shared with her husband and two minor children.

3. Upon search of Respondent's residence, law enforcement personnel discovered a marijuana "indoor grow operation," comprised of approximately 52 plants. Some plants were as much as five feet tall. Processed marijuana and marijuana being processed were also present. Law enforcement officers estimated the total street value of the marijuana confiscated to be approximately $53,000.00.

4. This indoor-grow operation involved special apparatuses for lights, heat lamps, air conditioning, watering, fertilizing, and drying the marijuana in a utility room off the carport and special air conditioning and drying apparatuses in the back yard.

5. Magazines on growing marijuana were located elsewhere in the house. The smell of processed marijuana permeated other parts of the house besides the utility room, which had limited access. The heat lamps in the grow room raised the temperature in the house.

6. As a result of the search of Respondent's residence, Respondent was arrested for violating Section 893.13, Florida Statutes' prohibition against the cultivation of cannabis, the technical name for marijuana.

7. Carol Ann Starling had worked with Respondent for approximately two and one-half years as a team member of a drug interdiction team with the Department of Corrections. Among Ms. Starling's and Respondent's responsibilities were entering correctional facilities unannounced, searching (including

   vacuuming the clothing of) inmates and placing suspected drugs in an assay machine. The team members then read the assay machine printouts to determine what type of drug had been discovered.

8. Respondent and Ms. Starling specifically tested materials to locate or verify the existence of marijuana at the Dade Correctional Institution.

9. Under these circumstances, Respondent's denial of knowledge of the marijuana grow operation in her residence is not deemed credible.

10. Respondent was criminally charged with (1) manufacturing cannabis and (2) possession of more than 20 grams of cannabis. Each of these offenses constitutes a felony, pursuant to Section 893.13, Florida Statutes.1 Both charges were dismissed by a nolle/no information, due to "appropriate administrative action deemed sufficient in lieu of prosecution."

    CONCLUSIONS OF LAW

    
    

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

12. Petitioner has the duty to go forward and the burden of proof by clear and convincing evidence to show that Respondent committed the offenses charged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Section 943.13(7), Florida Statutes, which Respondent is charged under, establishes the minimum qualifications for law enforcement officers in Florida, including:

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

    
    

14. Rule 11B-27.0011(4)(a), Florida Administrative Code, which Respondent is charged under, defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. It provides as follows:

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

       
       

       1. The perpetration by an officer of an act that would constitute any felony offense whether criminally prosecuted or not. (Emphasis supplied).

          
          

15. Section 943.1395(6), Florida Statutes, which Respondent is charged under, provides that:

    The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2),

    or s. 943.139(2).

    
    

16. Section 943.1395(6), Florida Statutes, is not relevant to the facts as found, nor is Section 943.13(4), Florida Statutes, which is referenced within Section 943.1395(6), and which applies to pleas of nolo

    contendere.

    
    

17. Section 943.1395(7), Florida Statutes, which Respondent is charged under, provides in pertinent part, that:

    Upon a finding by the commission that a certified officer has not maintained good moral character . . . the commission may enter an order imposing . . . penalties which include revocation, suspension, probation and/or a reprimand.

    
    

18. Section 893.13(1) and (6), Florida Statutes, provide, in pertinent part:

    893.13 Prohibited acts; penalties.–

    (1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture,

    or deliver, a controlled substance. Any person who violates this provision with respect to . . .

    
    

    1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

    2. A controlled substance named or described in s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

       775.084. (Emphasis supplied).

       
       

    3. A controlled substance named or described in s. 893.03(5) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

    * * *

    
    

    (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. (Emphasis supplied).

    
    

    1. 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.

       
       

    2. Except as provided in this chapter, it is unlawful to possess in excess of 10 grams of any substance named or described in s. 893.03(1)(a) or (1)(b), or any combination thereof, or any mixture containing any such substance. Any person who violates this paragraph commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

19. Section 893.03(1)(c)7., Florida Statutes, proscribes cannabis as a Schedule I controlled substance.

20. Rule 11B-27.005, Florida Administrative Code, provides in pertinent part:

    1. The Commission sets forth in paragraph (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 Disciplinary guidelines are based upon a "single count" violation of each provision listed. . . .

       
       

    2. When the Commission finds that a certified officer has committed an act that 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 that 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 shall be imposed, absent

          mitigating circumstances, include the following:

          
          

          Violation: Recommended penalty Range:

          
          

          4. Possession, sale

          of controlled substance

          (893.13, F.S.) Revocation

          
          

          * * *

          
          

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to . . . a hearing officer, 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 or more of the following aggravating or mitigating circumstances.

       
       

       * * *

       
       

       1. Aggravating circumstances.

          
          

          * * *

          
          

          1. The length of time the certified officer has been certified.

             
             

          2. The severity of the misconduct.

             
             

       2. Mitigating circumstances.

       
       

       * * *

       
       

       1. The effect of disciplinary . . . action taken by the employing agency . . .

       
       

21. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and

    Rule 11B-27.0011(4)(c), Florida Administrative Code, by being in constructive possession of more than 20 grams of cannabis, a controlled substance, which act constitutes a third degree felony. The fact that the charge was not prosecuted does not limit the Agency's authority to discipline Respondent in these circumstances.

22. Petitioner seeks revocation of Respondent's certifications as a Correctional Officer and a Probationary Correctional Officer. This is a penalty permitted by the established guidelines. The applicable aggravating and mitigating circumstances have been considered. On balance, the proposed revocation is appropriate.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED

That the Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and that Respondent's certifications be revoked.

DONE AND ENTERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2002

ENDNOTE

1/ Section 893.03(1)(c)7., Florida Statutes, renders cannabis a controlled substance under Schedule I. Section 893.13(1)(a)2., Florida Statutes, makes it unlawful and a felony of the third degree to sell, manufacture or deliver or possess with intent to sell, manufacture, or deliver cannabis. Section 893.13(1)(a), Florida Statutes, makes it a felony of the first degree to sell or deliver cannabis in excess of 10 grams. Section 893.13(6)(a), Florida Statutes, makes it a felony of the third degree to be in actual or constructive possession of cannabis unless authorized by law or a medical prescription. See infra., Conclusion of Law No. 18.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Sylvia Robertson-Akridge 1530 Northeast 3rd Avenue Gainesville, Florida 32641

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 01-003802PL

Orders for Case No: 01-003802PL