STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KALANGIE J. SERRANO, )

)

Respondent. )

Case No. 03-1263PL

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on May 27, 2003, in Titusville, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent may be disciplined for failure to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.

PRELIMINARY STATEMENT

On September 13, 2002, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, mailed Respondent, Kalangie J. Serrano, an Administrative Complaint wherein it was alleged:

2.(a) On or about February 9, 2002, the Respondent, Kalangie J. Serrano, did unlawfully possess not more than 20 grams of cannabis.

(b) On or about February 9, 2002, the Respondent, Kalangie J. Serrano, did unlawfully use, or possess with intent to use, drug paraphernalia; to wit: a metal pipe, to inject, injest, inhale, or otherwise introduced into the human body a controlled substance in violation of Chapter 893, Florida Statutes.

3. The actions of the Respondent did violate the provisions of Section 893.13(6)(b) and/or 893.147(1) or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(b), Florida Administrative Code, in that the 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 good moral character.

On September 26, 2002, Respondent executed an Election of Rights advising Petitioner that he denied the allegations of the Administrative Complaint referable to "possession of 20 grams of cannabis, possession of drug paraphernalia."

On April 8, 2003, Petitioner forwarded a Request for Assignment of Administrative Law Judge to the Division of

Administrative Hearings. An Initial Order was sent to both parties on the same date. On May 1, 2003, the case was scheduled for final hearing in Titusville, Florida, on May 27, 2003.

The case was presented as scheduled. Petitioner presented one witness, Officer Jonathon Cute, Orlando Police Department, and presented one exhibit, a charging affidavit, which was admitted into evidence as Petitioner's Exhibit 1. Respondent did not present himself at the hearing. At the close of the presentation of Petitioner's case, the undersigned Administrative Law Judge requested that Petitioner provide the certified results of laboratory tests of the alleged cannabis within ten days of the hearing. Petitioner's counsel subsequently advised the undersigned's secretary that there were no laboratory tests done on the alleged cannabis. No transcript of the proceedings was prepared. Petitioner timely submitted a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Respondent, Kalangie J. Serrano, is a state certified correctional officer holding certificate No. 186788.

2. In the early morning hours of February 9, 2002, Respondent was observed by Orlando Police Department Officer

   Jonathan Cute sitting in the driver's seat of Respondent's automobile.

3. As Officer Cute approached the vehicle, he smelled a strong odor of marijuana coming from the vehicle and observed smoke in the passenger compartment of the automobile.

4. As Officer Cute approached the vehicle, he noticed Respondent place something onto the center console of the vehicle.

5. As Respondent exited the vehicle at Officer Cute's request, Officer Cute observed and smelled a cloud of marijuana smoke in the interior of the vehicle and determined that the object placed on the vehicle's console was a red metal pipe typical, in his experience, of the type of pipe used for smoking marijuana.

6. Noting the presence of a burning residue in the pipe and suspecting it to be marijuana, Officer Cute performed a field test on the substance which tested positive determining that the substance was cannabis.

7. Officer Cute arrested Respondent and charged him with possession of less than 20 grams of cannabis and possession of drug paraphernalia.

8. No admissible evidence was received as to any determination of the charges filed against Respondent.

   CONCLUSIONS OF LAW

   
   

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

10. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Ferris

    v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

11. The following statement has been repeatedly cited in discussions of the "clear and convincing" evidence standard:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

12. It is alleged that Respondent violated Subsection 893.13(6)(b), Florida Statutes, which provides:

    (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.

    
    

13. Respondent is also alleged to have violated Subsection 893.147(1), Florida Statutes, which, in pertinent part, provides:

    1. USE OR POSSESSION OF DRUG PARAPHERNALIA.–It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia:

       
       

       * * *

       
       

       (b) To inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

       
       

14. Subsection 943.1395(6), Florida Statutes, provides that:

    1. 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).

       
       

       1. The commission shall cause to be investigated any ground for revocation from the employing agency pursuant to s. 943.139 or from the Governor, and the commission may investigate verifiable complaints. Any investigation initiated by the commission pursuant to this section must be completed within 6 months after receipt of the completed report of the disciplinary or internal affairs investigation from the employing agency or Governor's office. A verifiable complaint shall be completed

          within 1 year after receipt of the complaint. An investigation shall be considered completed upon a finding by a probable cause panel of the commission. These time periods shall be tolled during the period of any criminal prosecution of the officer.

          
          

       2. The report of misconduct and all records or information provided to or developed by the commission during the course of an investigation conducted by the commission are exempt from the provisions of

          s. 119.07(1) and s. 24(a), Art. I of the State Constitution and, except as otherwise provided by law, such information shall be subject to public disclosure only after a determination as to probable cause has been made or until the investigation becomes inactive.

          
          

       3. When an officer's certification is revoked in any discipline, his or her certification in any other discipline shall simultaneously be revoked.

          
          

15. Subsection 943.13(7), Florida Statutes, 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.

    
    

16. Subsection 943.1395(7), Florida Statutes, with which Respondent is charged, provides:

    1. 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 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. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    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.

    
    

17. Rule 11B-27.0011(4)(b), Florida Administrative Code, provides in pertinent part:

    (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 required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) 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, 893.147,

    . . ., F.S.

    
    

18. The only evidence presented to support the allegation that the substance found in Respondent's possession was cannabis

    was Officer Cute's testimony that he smelled the strong odor of marijuana coming from the automobile that Respondent occupied and that when he approached the vehicle he noticed Respondent place an object, later determined to be a red metal pipe, on the console next to his seat. Field testing of the pipe and its contents determined the residue to be cannabis. No follow-up laboratory tests were performed. No other witnesses testified.

19. In the case of L.R. v. State, 557 So. 2d 121, 122 (Fla. 3d DCA 1990), involving an adjudication of delinquency for possession of cocaine, a proceeding with similar evidentiary standards, the court held:

    At the adjudicatory hearing the sole evidence identifying the substance was the officer's testimony that, based on his past experience, it appeared to be rock cocaine, and that it field tested positive for cocaine. The officer described the procedure for performing the test, but was unable to testify as to the reliability of the test. No laboratory report was introduced, nor was a chemist called to testify. . . . [T]he evidence was insufficient. We therefore reverse the adjudication of delinquency and remand with directions to discharge L.R.

    
    

20. In Smith v. State, 835 So. 2d 387, 388 (Fla. 2nd DCA 2003), the Second District reaffirms L.R. v. State, supra, and said:

    The evidentiary value of a presumptive test was determined in L.R. v. State In

    that case, the State's evidence that the suspected contraband was cocaine included in

    the officer's opinion based on his experience and the positive results of the field test. However, because there was no laboratory report nor testimony from a chemist, the Third District reversed the trial courts adjudication of delinquency, finding the evidence insufficient. In this case, the only evidence as to the contents of each of the baggies prior to mixing the two is the field test. The officer admitted he could not distinguish between methamphetamine and other white powdery substances by visual observation.

    Furthermore, there is no evidence as to the weight of the contents of either baggie.

    
    

    Accordingly based on the Third District's reasoning in L.R., we conclude that the field test alone does not make a prima facie case and that, following the Stafford decision, the trial court erred in denying Smith's motion for judgment of acquittal on the armed trafficking charge.

    
    

21. Officer Cute testified that the red metal pipe seized from Respondent was the type of pipe typically used for smoking marijuana and, as a result of the positive field test for the presence of cannabis, charged Respondent with possession of drug paraphernalia.

22. In Smith v. State, 771 So. 2d 1189, 1192 (Fla. 5th DCA 2000), the Fifth District held:

    The arresting officer testified that he found a piece of copper screen/mesh wrapped in plastic that contained a residue which tested positive for cocaine in a field test, and that based on his professional training and experience it was a device typically used as a filter on a crack pipe. Appellant cites to L.R. v. State, 557 So. 2d 121 (Fla. 3d DCA 1990) as authority for the

    proposition that a positive field test of a substance suspected to be cocaine is insufficient evidence to sustain a conviction for possession of cocaine.

    Appellant was not charged with possession of cocaine, but of paraphernalia and the evidence here was sufficient to sustain that conviction.

    
    

23. Under the clear and convincing standard, Petitioner's evidence has failed to establish a violation of Subsection 893.13(6)(b), Florida Statutes (possession of cannabis). However, there is sufficient evidence under the same standard to establish a violation of Subsection 893.147(1), Florida Statutes (possession of drug paraphernalia).

24. Given the definition of failure to maintain good moral character as established in Rule 11B-27.0011(4)(b), Florida Administrative Code, Respondent has failed to demonstrate the minimum qualification of good moral character as required in Subsection 943.13(7), Florida Statutes.

25. Rule 11B-27.005(4) and (5), Florida Administrative Code, provides, in part:

    1. The Commission sets forth in paragraphs (5)(a) -- (d), of this rule section, a range of disciplinary guidelines from which disciplinary penalties shall 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, that shall 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 section. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All penalties at the upper range of the sanctions in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), that may be included in the final penalty at the Commission's discretion.

       
       

    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.

    
    

26. While the disciplinary guidelines list myriad violations and recommended penalty ranges, the is no specific recommendation for violation of Subsection 893.147(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner, Department of Law Enforcement Criminal Justice Standards and Training Commission, enter a

final order finding that Respondent, Kalangie J. Serrano, violated Subsection 893.147(1), Florida Statutes, and, as a result, failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and that he be placed on probation for two years, be required to submit to drug testing, be enrolled in drug prevention education, and such other associated penalties as Petitioner deems appropriate.

DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 19th day of June, 2003.

COPIES FURNISHED:

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

Kalangie J. Serrano 4340 Lauren Lane

Titusville, Florida 32780

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement 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: 03-001263PL

Orders for Case No: 03-001263PL