STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 08-1626PL

)

SHACOYIA MCPHEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on June 13, 2008, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Sharon S. Traxler, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 6, 2008, Petitioner issued an Amended Administrative Complaint against Respondent alleging the following facts:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on March 26, 2007, and was issued Correctional Certificate Number 264941.

   
   

2. On or about August 8, 2007, the Respondent, Shacoyia McPhee, did unlawfully introduce into or upon the grounds of Everglades Correctional Institution, a state correctional institution, or take or attempt to take, or send or attempt to send therefrom, an intoxicating beverage (vodka), written communications, U.S. currency and cannabis, articles or things declared to be contraband, except through regular channels as authorized by the officer in charge of the institution.

According to the Amended Administrative Complaint, "the actions of the Respondent did violate the provisions of Section 944.47(1)(a) or any lesser included offenses, Section 943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, in that Respondent has 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." Through the submission of an Election of Rights, Respondent "dispute[d] the allegations of fact contained in the Amended Administrative Complaint" and requested a "formal hearing pursuant to Section 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings." In her hearing request, Respondent indicated:

Those material facts which I dispute are:

1. Possession of marijuana

   
   

2. Open container of vodka

The matter was referred to DOAH on April 3, 2008, for "the assignment of an administrative law judge" to conduct the hearing Respondent had requested.

The hearing was scheduled for June 13, 2008. Petitioner and Respondent were provided with written notice of the hearing in accordance with Section 120.569(2)(b), Florida Statutes.1 The notice was in the form of Notice of Hearing by Video Teleconference mailed April 15, 2008, to Petitioner's counsel of record and to Respondent.

Petitioner appeared at the hearing, which was held as scheduled on June 13, 2008, through its counsel of record. Respondent, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

At the hearing, Petitioner presented the testimony of two witnesses: Inspector Tony Pesante and Inspector Brian White. In addition, it offered into evidence three exhibits (Petitioner's Exhibits 1 through 3). All three exhibits were admitted.

At the close of the taking of evidence, the undersigned established a deadline (14 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on July 3, 2008.

Petitioner filed its Proposed Recommended Order on July 21, 2008. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, the following findings of fact are made:

1. Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941.

2. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI).

3. Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI.

4. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog.

5. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007.

6. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI.

7. Inspector White and Ziggy were summoned to the parking

   
   

   lot.

   
   

8. Ziggy alerted to the presence of narcotics in

   
   

   Respondent's vehicle.

   
   

9. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it).

10. In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters

    and other written materials, including correspondence from inmates.

11. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her."

12. Instead of waiting in the lobby, Respondent got into her vehicle and drove off.

13. Her employment was subsequently terminated, and she never returned to the facility.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

15. At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement or correctional officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under procedures established by [Petitioner]."

16. At all times material to the instant case, Section 943.1395(7), Florida Statutes, has authorized Petitioner to revoke the certification of a law enforcement or correctional officer who has failed to maintain "good moral character, the definition of which has been adopted by rule and is established

    as a statewide standard, as required by Section 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties on the certificate holder, to wit: "[s]uspension of certification for a period not to exceed 2 years"; "[p]lacement on a probationary status for a period not to exceed 2 years"; "[s]uccessful completion . . . of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."

17. Such action may be taken only if the certificate holder's lack of "good moral character" is established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

    and Company, 670 So. 2d 932, 935 (Fla. 1996); Dieguez v. Department of Law Enforcement, Criminal Justice Standards and Training Commission, 947 So. 2d 591, 595-596 (Fla. 3d DCA 2007); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); and § 120.57(1)(j), Fla. Stat.

    ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").

18. Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla.

    1997). For proof to be considered "'clear and convincing' . . . 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

19. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of lack of "good moral character" made in the charging instrument. Due process prohibits an agency from taking penal action against a certificate holder based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Trevisani v. Department of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Aldrete v. Department of Health, Board of Medicine, 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004);

    Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

20. "'Moral character' . . . [is] not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement or correctional officer demonstrates a lack of "good moral character" when he or she engages in "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).

21. Petitioner, which has the ultimate authority to administratively interpret the provisions of Sections 943.13(7) and 943.1395, Florida Statutes, has defined in Florida Administrative Code Rule 11B-27.0011(4) what constitutes, "[f]or the purposes of [Petitioner's] implementation of any of the penalties specified in Section 943.1395, [Florida Statutes], a

    certified officer's failure to maintain [the] good moral character required by Section 943.13(7), [Florida Statutes]."

22. At all times material to the instant case, Florida Administrative Code Rule 11B-27.0011(4)(a) has provided that such a "failure to maintain good moral character" includes, among other things:

    The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

    
    

23. Section 944.47, Florida Statutes, describes the felony crime of introducing contraband upon the grounds of a state correctional institution. At all times material to the instant case, it has provided, in pertinent part, as follows:

    1. (a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution . . . any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

       
       

       1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

       
       

       * * *

       
       

       1. Any intoxicating beverage or beverage which causes or may cause an intoxicating effect.

          
          

       2. Any controlled substance as defined in

       s. 893.02(4) or any prescription or

       nonprescription drug having a hypnotic, stimulating, or depressing effect.

       
       

       * * *

       
       

    2. A person who violates any provision of this section as it pertains to an article of contraband described in subparagraph (1)(a)1. or subparagraph (1)(a)2. is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

       775.084. In all other cases, a violation of a provision of this section constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

24. Vodka is an "intoxicating beverage or beverage which causes or may cause an intoxicating effect," within the meaning of Section 944.47(1)(a)3, Florida Statutes. Cf. Slater v. Dodd,

    108 Ga. App. 879 (Ga. App. 1964)("The trial court should have taken judicial notice of the fact that 'vodka' is

    intoxicating . . . ."); and State v. Moore, 138 Mont. 379, 383 (Mont. 1960)("[T]his court has taken judicial notice of the fact that vodka is an 'intoxicating liquor' as defined in R.C.M.

    1947, § 94-35-107.").

    
    

25. Section 893.02(4), Florida Statutes, defines "controlled substance" as "any substance named or described in Schedules I-V of s. 893.03," Florida Statutes. Cannabis is among the substances "named or described in Schedules I-V of s. 893.03." See § 893.03(1)(c)7, Fla. Stat. It therefore is a

    "controlled substance," within the meaning of Section 944.47(1)(a)4, Florida Statutes.

26. In the instant case, Petitioner is seeking to take disciplinary action against Respondent on the ground that she has failed to maintain "good moral character" in that:

    On or about August 8, 2007, the Respondent, Shacoyia McPhee, did unlawfully introduce into or upon the grounds of Everglades Correctional Institution, a state correctional institution, or take or attempt to take, or send or attempt to send therefrom, an intoxicating beverage (vodka), written communications, U.S. currency and cannabis, articles or things declared to be contraband, except through regular channels as authorized by the officer in charge of the institution.

    
    

27. Through its evidentiary presentation at hearing, Petitioner clearly and convincingly established that Respondent brought onto the grounds of ECI (specifically the staff parking lot) vodka and cannabis and thereby violated Section 944.47(1)(a)3 and 4, Florida Statutes,3 a violation which constitutes a "failure to maintain good moral character" and warrants the imposition of an appropriate penalty.

28. In determining what disciplinary action Petitioner should take against Respondent for her "fail[ing] to maintain good moral character" by engaging in this conduct, it is necessary to consult Petitioner's "disciplinary guidelines" in Florida Administrative Code Rule 11B-27.005, which impose

    restrictions and limitations on the exercise of its disciplinary authority. See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233-34 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties.").

29. Florida Administrative Code Rule 11B-27.005 provides, in pertinent part, as follows:

    * * *

    
    

    (4)(a) 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 subsection (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 set forth 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.

    
    

    * * *

    
    

    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:

       
       

       1. For the perpetration by the officer of an act that would constitute any felony offense, pursuant to paragraph 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:

          
          

          * * *

          
          

          8. Violation: Introduction of contraband into a jail or prison involving a firearm, concealed weapon, controlled substance, currency, or a tool or implement useful in an attempt to escape from custody (944.47 and 951.22, F.S.); Recommended Penalty Range: Revocation.

          * * *

          
          

    2. The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented . . . to an Administrative Law Judge, 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:

    
    

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

       2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

       3. The number of violations found by the Commission.

          
          

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.

          
          

       5. The severity of the misconduct.

          
          

       6. The danger to the public.

          
          

       7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

          
          

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

          
          

       10. Whether the misconduct was motivated by unlawful discrimination.

           
           

       11. Any behavior constituting "domestic violence" defined by Section 741.28(1), F.S.

           
           

       12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

       
       

    2. Mitigating circumstances:

    
    

    1. The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

    2. The recommendations of character or employment references.

       
       

    3. The lack of severity of the misconduct.

       
       

    4. The length of time the officer has been certified by the Commission.

       
       

    5. Any effort of rehabilitation by the certified officer.

       
       

    6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.

       
       

    7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

       
       

    8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

    
    

30. In its Proposed Recommended Order, Petitioner has argued that Respondent's certification should be revoked.

Having carefully considered the facts of the instant case in light of the provisions of Florida Administrative Code Rule 11B-

27.005 set forth above, the undersigned agrees with Petitioner that the disciplinary action that should be taken against Respondent for the violation she committed is revocation of her certificate.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding.

DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 28th day of July, 2008.

ENDNOTES

1/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2007).

2/ The bottle contained approximately a quarter of a pint of vodka.

3/ Petitioner failed to demonstrate by clear and convincing evidence that the written materials Respondent brought onto the grounds of ECI in her vehicle were the type prohibited by Section 944.47(1)(a)1, Florida Statutes. Neither did it offer clear and convincing proof of Respondent's engaging in any unlawful activity involving "U.S. currency."

COPIES FURNISHED:

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

Sharon S. Traxler, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Shacoyia McPhee

17231 Northwest 33rd Court Miami Gardens, Florida 33056

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: 08-001626PL

Orders for Case No: 08-001626PL