STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

ROZELL L. HESTER, )

)

Respondent. )

Case No. 06-4814PL

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held by video teleconference between Tallahassee and Fort Myers, Florida, on April 5, 2007, before Bram D.E. Canter, an Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Rozell L. Hester, pro se

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set forth in the Administrative Complaint filed against Respondent are true, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 2, 2006, the Criminal Justice Standards and Training Commission (Petitioner) filed an Administrative Complaint against Rozell L. Hester (Respondent), charging Respondent with violating Subsections 943.1395(6) and (7), Florida Statutes (2006),1 and Florida Administrative Code Rule 11B-27.0011(4)(b), for failing to maintain good moral character in that Respondent committed a battery against a person and possessed and used drug paraphernalia. Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing, which was forwarded to DOAH.

The final hearing was twice continued, once at the request of Petitioner and once at the request of Respondent. At the hearing held on April 5, 2007, Petitioner presented the testimony of Chelsey Traband and Sergeant Allan Kolak of the City of Cape Coral Police Department. Petitioner's Composite Exhibit 1, consisting of 12 photographs, was admitted into evidence. Respondent testified on his own behalf. He offered no exhibits into evidence.

The Transcript of the hearing was filed with DOAH. One day after post-hearing submittals were due, Petitioner filed its Proposed Recommended Order and moved to have it accepted. No post-hearing submittal was filed by Respondent. Petitioner's Proposed Recommended Order was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida.

2. Respondent holds Correctional Certificate No. 242571, issued to him by Petitioner.

3. On July 16, 2005, Respondent was involved in an altercation with Chelsey Traband, the woman he lived with in Cape Coral, Florida. In the course of the altercation, items were thrown around the interior of the house, Respondent damaged a closet door and window, and clothing was thrown into the front yard. These actions, and perhaps associated noise, caused a neighbor to call the Cape Coral Police Department, and two police officers went to the scene to investigate.

4. The officers observed bruises on Ms. Traband's left arm, a minor scratch on her right arm, and three parallel scratches on the top of her right breast, one of which was relatively deep. In a statement made to Officer Frank Antos,

   Ms. Traband stated that the bruises and scratches were inflicted by Respondent.

5. At the hearing, Ms. Traband attempted to recant the statements she made to Officer Antos on July 16, 2005, claiming that he told her what to say and threatened to arrest her and take her to jail if she did not make the statements. Much of Ms. Traband's testimony was evasive and lacking in credibility. She had a motive for lying, because she still lives with Respondent and does not want him to be disciplined.

6. Sorting Ms. Traband's credible statements from her lies, it is found that Ms. Traband started the aggression by slapping and hitting Respondent. However, at some point, Respondent straddled Ms. Traband while she was on her back on a bed, grabbed her breast and twisted it violently. Although both Respondent and Ms. Traband testified under oath at the hearing that the marks on her breast were caused when Respondent pushed Ms. Traband away from him in self defense, the testimony was not credible. It contradicts the statement Ms. Traband made on

   July 16, 2005, and her former statement is consistent with the marks on her breast as depicted in the photographs.

7. On the day of the incident, Ms. Traband told Sergeant Allan Kolak that Respondent had been smoking marijuana earlier that day, and she had thrown the pipe he had used to smoke the marijuana into the field behind the house. She showed Officer

   Antos where to find the pipe, and he found a small wooden pipe. Sergeant Kolak testified that the pipe was the kind used to smoke marijuana, it was not the kind of pipe used to smoke tobacco, and it had a smell that he knows from his training and experience is the smell of burned marijuana.

8. After reading Respondent his Miranda rights, Sergeant Kolak questioned Respondent about the pipe, and Respondent volunteered that he had tried to smoke the marijuana residue in the pipe earlier that day.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57, and 943.1395, Florida Statutes (2006).

10. Petitioner has the burden of proof to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. The "clear and convincing" evidence standard has been described as follows:

    [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. In its Administrative Complaint, Petitioner charged Respondent with violating "Section 784.03 and/or 893.147(1), Florida Statutes, 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." Petitioner also asserted in the Administrative Complaint that these offenses demonstrate that Respondent has not maintained good moral character as required by Subsection 943.13(7), Florida Statutes.

13. Section 784.03, Florida Statutes, creates the crime of battery, which is defined as intentionally touching or striking another person against the will of the other person or intentionally causing bodily harm to another person. The evidence was clear and convincing that Respondent committed a battery on Ms. Traband on July 16, 2005.

14. Subsection 893.147(1), Florida Statutes, makes it "unlawful for any person to use, or to possess with intent to use, drug paraphernalia." Subsection 893.145(12)(a), Florida Statutes, defines paraphernalia to include wooden pipes used or intended to be used to inhale marijuana. The evidence, through

    Respondent's admissions, was clear and convincing that he possessed and used drug paraphernalia on July 16, 2005.

15. Florida Administrative Code Rule 11B-27.0011 provides that the violation of certain statutes, including Section 784.03 and Subsection 893.147(1), Florida Statutes, whether or not the violations were criminally prosecuted, constitutes a failure to maintain good moral character. Because Petitioner proved by clear and convincing evidence that Respondent violated the two cited statutes, Petitioner proved that Respondent failed to maintain good moral character.

16. Subsections 943.1395(6) and (7), Florida Statutes, provide in relevant part:

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) . . . .

       
       

       * * *

       
       

    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 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.

1. Petitioner charged Respondent with violating Subsections 943.1395(6) and (7), Florida Statutes, but these subsections set forth the disciplinary authority of Petitioner and cannot be "violated" by Respondent. Furthermore, Subsection 943.1395(6), Florida Statutes, relates to felony convictions or misdemeanor convictions involving false statements, and there was no allegation that Respondent was convicted of any felony or misdemeanor as a result of his arrest on July 16, 2005.

2. Petitioner also charged Respondent with violating Florida Administrative Code Rule 11B-27.0011(4). However, the purpose of this rule is to define the term "good moral character," and Respondent cannot "violate" a definition.

3. The Administrative Complaint correctly stated Respondent's offense as his failure to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4). Respondent's failure to maintain good moral

   character is subject to disciplinary action by Petitioner under

   the authority granted to Petitioner by Subsection 943.1395(7), Florida Statutes.

4. No evidence was presented that Respondent has been disciplined in the past for these or any other offenses.

5. Florida Administrative Code Rule 11B-27.005(5)(b) sets forth the disciplinary guidelines applicable to first-time offenses. The recommended penalty for violating Section 784.03, Florida Statutes (battery), is suspension. The recommended penalty range for violating Subsection 893.147(1), Florida Statutes (possession of drug paraphernalia), is probation to suspension.

6. Florida Administrative Code Rule 11B-27.005(6) provides that Petitioner may deviate from the penalty guidelines upon a showing of aggravating or mitigating circumstances. One aggravating circumstance listed in the rule is "[t]he severity of the misconduct." Counsel for Petitioner contends that this aggravating circumstance is applicable here, because Respondent "boasted that he would have smoked some marijuana if he had any." However, Respondent was not charged with smoking marijuana, and Respondent's statement does not "aggravate" his possession of paraphernalia. Moreover, Respondent should not be penalized for being forthcoming when questioned by a police officer. Therefore, the aggravating circumstance of "severity of the misconduct" is not shown by the evidence.

7. There are no mitigating circumstances listed in the rule that were shown by the evidence.

8. Petitioner's proposal to revoke Respondent's certification is contrary to the penalty guidelines established in Florida Administrative Code Rule 11B-27.005(5)(b), which indicates that suspension is the appropriate penalty. A suspension of six months for each offense, totaling one year, would be an appropriate penalty.

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 Rozell L. Hester failed to maintain good moral character and ordering that his certification as a correctional officer be suspended for one year.

DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 12th day of June, 2007.

ENDNOTE

1/ All references to the Florida Statutes are to the 2006 codification.

COPIES FURNISHED:

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

Rozell L. Hester

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida 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: 06-004814PL

Orders for Case No: 06-004814PL