STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 03-0530PL

)

JAMES C. BUCKLEY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on April 29, 2003, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Lake Butler, Florida.

APPEARANCES

For Petitioner: Laurie Woodham Binder, Esquire

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

For Respondent: James C. Buckley, pro se

440 Southwest 4th Street Lake Butler, Florida 32054

STATEMENT OF THE ISSUE

Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?

PRELIMINARY STATEMENT

On or about February 8, 2002, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint against Respondent. The Administrative Complaint alleged that Respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Correctional Officer in the State of Florida have a good moral character.

Specifically, the Administrative Complaint alleged that Respondent violated Section 893.13(6)(b), Florida Statutes, or any lesser included offense, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 493.13(7), Florida Statutes, which requires that a correctional officer in the State of Florida be of good moral character.

Respondent disputed the allegations in the Administrative Complaint and timely filed a request for a formal administrative hearing to be conducted pursuant to Sections

120.569 and 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings on or about February 14, 2003. A formal hearing was set for April 29, 2003.

At hearing, Petitioner presented the testimony of three witnesses: Joseph C. Romer, Ronald S. Faircloth, and James L. Schenck. Petitioner's Exhibits numbered 3 through 5, 7, 8, and 10 were admitted into evidence. Respondent testified on his own behalf and offered six exhibits. Respondent's Exhibits numbered 3, 9, and 10 were admitted into evidence.

Respondent's Exhibits numbered 2, 4, and 5 were rejected. Respondent was permitted to proffer Exhibits 2, 4, and 5.

A Transcript, consisting of one volume, was filed on May 19, 2003. The parties requested more than 10 days in which to submit proposed recommended orders. That request was granted. Petitioner timely filed a Proposed Recommended Order which was considered in the preparation of this Recommended Order.

Respondent did not file any post-hearing submission.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 151337.

2. Respondent was employed by the Department of Corrections, Lake City Service Center from October 1, 2000 until October 18, 2001.

3. On or about January 27, 2001, Respondent was sitting in the right front passenger seat of his black Ford Mustang in

   the parking lot of the Ponce de Leon Mall (the Mall) in St. Augustine, Florida.

4. Another man was also sitting in the vehicle.

   
   

   A third man who had been a passenger of the vehicle was walking toward the vehicle from the Mall.

5. Deputy Joey Romer of the St. Johns County Sheriff's Office and Detective Ronald S. Faircloth were working in an off-duty status as security for the Mall.

6. Deputy Romer and his K-9 dog, Justice, approached Respondent's vehicle in the mall parking lot.

7. Justice is trained in narcotics detection. Justice "alerted" to the free air odor of Respondent and to one of the other occupants of the vehicle. That is, Justice "did the full response of sitting down, which is an indication of a drug odor." Justice also alerted to the lower seam of the passenger door where Mr. Buckley had been sitting.

8. Deputy Romer then searched the vehicle and found two small packets of what appeared to be marijuana in a Checker's food bag on the front passenger floorboard.

9. Deputy Romer did not do a field test of the suspect marijuana. Based upon his experience, Deputy Romer concluded that the suspect substance was marijuana.

10. Detective Faircloth initially stayed back from the vehicle for officer safety reasons. He saw Deputy Romer place

    Respondent under arrest. Detective Faircloth then approached the vehicle.

11. Respondent admitted to Deputy Romer that the suspect substance was marijuana and that it was his. In the presence of both Deputy Romer and Detective Faircloth, Respondent identified himself as a corrections officer. In the presence of both Deputy Romer and Detective Faircloth, Respondent asked if there was any way they could just dump out the marijuana because it would affect his job.

12. Deputy Romer then arrested Respondent. Respondent was charged with possession of less than 20 grams of marijuana, a misdemeanor.

13. On January 28, 2001, Respondent filed an incident report indicating that he was arrested on January 27, 2001, for possession of less than 20 grams of marijuana.

    CONCLUSIONS OF LAW

    
    

14. The Criminal Justice Standards and Training Commission has jurisdiction over the certification of correctional officers pursuant to Chapter 943, Florida Statutes.

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. The Department has the burden of proving by clear and convincing evidence the allegations in the Administrative Complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Section 943.1395 Florida Statutes, reads, in pertinent part:

    1. The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(4), Florida Statutes.

       
       

    2. 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 statewide 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 of 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.

       
       

    3. The commission shall, by rule, adopt disciplinary guidelines and procedures to administer 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).

18. Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of correctional officers in Florida. Subsections (4) and (7) provide:

    (4) Not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States . . . .

    
    

    * * *

    
    

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

    
    

19. Rule 11B-27.0011(4), Florida Administrative Code, defines good moral character as follows:

    11B-27.0011 Moral Character.

    
    

    * * *

    
    

    1. For the purposes of the Criminal Justice Standards and Training 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 required by Section 943.13(7), F.S., is defined as:

       
       

       1. The perpetration by an officer of an act that would constitute any felony

          offense, whether criminally prosecuted or not.

          
          

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

          
          

          1. Sections . . . 893.13 . . ., F.S.

          
          

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

    11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and

    Mitigating Circumstances.

    
    

    * * *

    
    

    1. When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

    
    

    * * *

    
    

    (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(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 suspension of certification. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

    
    

    * * *

    Violation Recommended Penalty Range

    
    

    11. Possess or delivery without consideration, and not more than 20 grams of Cannabis (893.13, F.S.)

    Revocation

    
    

21. Petitioner has not met its burden to support the charge that Respondent violated Section 943.1395(6), Florida Statutes.1

22. Petitioner has met its burden to support the charge in the Administrative Complaint that Respondent violated Section 943.1395(7), Florida Statutes, in that he failed to maintain good moral character as contemplated by Rule 11B- 27.0011(4)(b), Florida Administrative Code.

23. Petitioner recommends revocation of Respondent's certificate. Pursuant to Section 943.1395(7)(d), Florida Statutes, the undersigned must adhere to the disciplinary guidelines set forth in Section 943.1395(7) and the rules adopted by the Commission. Pursuant to Rule 11B- 27.005(5)(b)11., Florida Administrative Code, revocation is the appropriate penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of

Respondent, James C. Buckley.

DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 15th day of July, 2003.

ENDNOTE

1/ The Administrative Complaint was framed in the alternative, alleging a violation of Section 943.1395(6) and/or (7), Florida Statutes.

COPIES FURNISHED:

Laurie Woodham Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

James C. Buckley

440 Southwest 4th Street Lake Butler, Florida 32054

Michael Ramage, General Counsel Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services 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: 03-000530PL

Orders for Case No: 03-000530PL