STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

ROOSEVELT PAIGE, )

)

Respondent. )

Case No. 06-1034PL

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on June 9, 2006, in Macclenney, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Roosevelt Paige, pro se

STATEMENT OF THE ISSUE

The issue is whether Respondent continues to be qualified for certification as a correctional officer.

PRELIMINARY STATEMENT

This cause arose pursuant to an Administrative Complaint filed by the Florida Criminal Justice Standards and Training Commission (the Commission) on February 8, 2006. Respondent Roosevelt Paige (Mr. Paige) disputed the allegations of fact contained in the Administrative Complaint and demanded a hearing. The matter was forwarded to the Division of Administrative Hearings and filed on March 22, 2006.

The hearing was set for June 9, 2006, and was heard as scheduled.

At the hearing, Petitioner presented the testimony of Corporal Michael Lagle (Cpl. Lagle) and Narcotics Investigator David Bryant (Investigator Bryant). Both of these men are law enforcement officers employed by the Baker County, Florida, Sheriff. Respondent presented the testimony of Hardy Givens (Mr. Givens).

A Transcript was filed on June 20, 2006. After the hearing, Petitioner timely filed its Proposed Findings of Fact and Conclusions of Law on June 26, 2006. Respondent did not file Proposed Findings of Fact and Conclusions of Law.

References to statutes are to Florida Statutes (2004) unless otherwise noted.

FINDINGS OF FACT

1. The Commission, among its other duties, is empowered to certify, and revoke the certification of, officers, instructors, including agency in-service training instructors, and criminal justice training schools.

2. Mr. Paige was certified by the Commission and was issued Correctional Certificate No. 45658 on July 1, 1981. He has continued to be certified since that time.

3. On November 23, 2004, Mr. Paige was riding in a truck with Mr. Givens. The truck was traveling south on County Road 229, in Baker County, at about 2:20 in the morning and the truck's tag light was not functioning.

4. Cpl. Lagle was patrolling on the same road at the same time and observed the truck and noted that the tag light was not functioning. Cpl. Lagle stopped the truck.

5. After the truck pulled to the side of the road,

   
   

   Cpl. Lagle approached the driver's side of the vehicle. The window was down. As Cpl. Lagle requested the driver's license and the passenger's identification, he smelled marijuana smoke.

6. Cpl. Lagle identified the driver as Mr. Givens. The passenger, Mr. Paige, did not provide identification as requested. Both Mr. Givens and Mr. Paige appeared nervous and Cpl. Lagle observed Mr. Paige trying to hide something.

7. Cpl. Lagle asked Mr. Givens to exit the truck and to move to the front of the truck. Mr. Givens did as instructed.

8. While at the front of the truck Cpl. Lagle asked Mr. Givens if they had drugs in the truck. He said no, but

   commented that they "had just smoked some." Mr. Paige was in the truck when this conversation occurred.

9. Subsequently Cpl. Lagle walked to the passenger side of the truck and opened the door. A Budweiser beer can fell on the ground as the door was opened. Cpl. Lagle asked Mr. Paige to exit the vehicle. During a pat down search, Cpl. Lagle found a plastic bag of green vegetable matter which he believed was marijuana, hidden in the waistband of Mr. Paige's trousers. He handcuffed Mr. Paige and placed him in his patrol car.

10. Cpl. Lagle performed a field test on the green vegetable material and it was positive for cannabis, which is the formal name for marijuana. He informed Mr. Paige that he was under arrest.

11. Mr. Paige told Cpl. Lagle that he was a correctional officer and that he had "information." Cpl. Lagle transported Mr. Paige to the Baker County Sheriff's Office Annex so that he could discuss his "information" with narcotics officers of the Baker County Sheriff's Office.

12. Upon arrival at the Annex he was searched and seated in an interview room. He was interviewed by Narcotics

    Investigator David Bryant. After the interview, Mr. Paige stood up and a second bag of green vegetable matter fell from his pant leg. Cpl. Lagle picked it up and the two officers together determined that this substance was also marijuana. Mr. Paige told the officers that the marijuana belonged to Mr. Givens.

13. The marijuana that was seized weighed less than 20 grams, so Mr. Paige was charged with the misdemeanor of possessing less than 20 grams of marijuana. He subsequently pleaded nolo contendere to the charged offense.

14. It is found by clear and convincing evidence that

    
    

    Mr. Paige possessed marijuana, in an amount less than 20 grams, on or about February 23, 2006.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

16. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission that is asserting the affirmative and, therefore, the Commission has the burden of proof.

17. Because this case is penal in nature, the material allegations set forth in the Administrative Complaint must be proven by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Section 943.13(7), provides:

943.13. Officers' minimum qualifications for employment or appointment

On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization Commission shall:

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

19. Section 943.1395(5), (6), and (7), provide:

943.1395. Certification for employment or appointment; concurrent certification; reemployment or reappointment; inactive status; revocation; suspension; investigation.—

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1. The employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7). If an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7), the employing agency must submit the investigative findings and supporting information and documentation to the commission in accordance with rules adopted by the commission.

   
   

2. 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.

      
      

3. 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.

* * *

1. "Moral character" has been defined by the Commission in Florida Administrative Code Rule 11B-27.0011(4), which provides:

   11B-27.0011(4). Moral Character.

   
   

   * * *

   
   

   (4) 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:

   
   

   * * *

   
   

   (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 316.193, 316.1935, 327.35,

   414.39, 741.31, 784.011, 784.03, 784.047,

   784.048, 784.05, 790.01, 790.10, 790.15,

   790.27, 794.027, 796.07, 800.02, 800.03,

   806.101, 806.13, 810.08, 812.014, 812.015,

   812.14, 817.235, 817.49, 817.563, 817.565,

   817.567, 817.61, 817.64, 827.04, 828.12,

   831.30,	831.31(1)(b), 832.05, 837.012,
   837.05,	837.06, 839.13, 839.20, 843.02,
   843.03,	843.06, 843.085, 847.011, 856.021,
   870.01,	893.13, 893.147, 914.22, 934.03,
   944.35,	944.37, and 944.39, F.S.

   
   

   * * *

   
   

2. Upon consideration of the foregoing statements of law, it is determined that Section 943.13(7), Florida Statutes, requires law enforcement and correctional officers to be of good moral character on a continuing basis. Section 943.1395(6)(a), Florida Statutes, provides for the investigation into grounds for revocation. Section 943.1395(7)(a), Florida Statutes, provides that a law enforcement and correctional officer's certification may be revoked for a violation of Section

   943.13(7), Florida Statutes. Florida Administrative Code Rule 11B-27.0011(4)(c)5, provides that violating Section 893.13(6)(a), Florida Statutes, by possessing cannabis demonstrates a lack of moral character. Section 893.13(6)(b), Florida Statutes, provides that possessing less than 20 grams of cannabis, so long as it comprises possessing "plants of the genus Cannabis," which describes Mr. Paige's offense, is a misdemeanor of the first degree.

3. Mr. Paige possessed less than 20 grams of "plants of the genus Cannabis," which is a misdemeanor violation as provided for in Section 893.13(6)(b), Florida Statutes, and therefore failed to maintain good moral character as defined by the Commission.

4. Pursuant to Section 943.1395(8)(e), Florida Statutes, the penalty guidelines found at Florida Administrative Code Rule 11B-27.005 have been considered. Specifically, Florida Administrative Code Rule 11B-27.005(5)(b)11. provides for revocation of certification for possession of not more than 20 grams of cannabis.

5. Florida Administrative Code Rule 11B-27.005(6)(a) lists aggravating circumstances, which if present, should be considered by the fact finder. No aggravating circumstances are found.

6. Florida Administrative Code Rule 11B-27.005(6)(b) lists mitigating circumstances, which should be considered. The single mitigating circumstance, described in subparagraph 4, is the length of time the officer has been certified by the commission. Mr. Paige has been certified for about 25 years. Because the record does not contain the Probable Cause Panel's findings, it is not known if subparagraph 7, which states, "The recommendation of the Probable Cause Panel to impose a penalty below the penalty guideline," is operative in this case.

7. Upon consideration of all of the facts and circumstances of this case, neither aggravating or mitigating circumstances are sufficient to modify the Commission's recommended guideline for the offense found.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Criminal Justice Standards and

Training Commission enter an order finding that Roosevelt Paige lacks moral character as defined by the commission and revoking Correctional Certificate No. 45658, which is currently held by Roosevelt Paige.

DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 10th day of July, 2006.

COPIES FURNISHED:

Roosevelt Paige

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Crews, 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: 06-001034PL

Orders for Case No: 06-001034PL