STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

CHARLES J. SNOW,

Respondent.

/

Case No. 13-0821PL

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P. Resavage for final hearing by video teleconference on June 13, 2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Jeffrey Phillip Dambly, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Maja Sha-ron Holman, Esquire

John James, Esquire Holman Law Group Suite 303

7880 West Oakland Park Boulevard Sunrise, Florida 33351

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4)(a) and (b), by unlawfully possessing a controlled substance, cocaine, and by driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired or with a blood or breath alcohol level of .08 or above, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On or about September 11, 2012, Petitioner, Criminal Justice Standards and Training Commission, issued an Administrative Complaint (Complaint) charging Respondent with violations of sections 943.1395(7) and 943.13(7), Florida Statutes, as well as violations of Florida Administrative Code Rule 11B-27.0011(4)(a) and (b).

Respondent timely filed an election of rights disputing the material facts alleged in the Complaint and requesting an administrative hearing.

The matter was referred to the Division of Administrative Hearings (DOAH) on March 8, 2013, and assigned to Administrative Law Judge John G. Van Laningham.

The final hearing initially was set for May 15, 2013.

Pursuant to the parties' Joint Motion for Continuance, filed on May 3, 2013, the final hearing was rescheduled for June 7, 2013. Thereafter, Respondent filed another Motion for Continuance, and

same was granted, resulting in the final hearing being rescheduled to June 13, 2013. On June 7, 2013, this case was transferred to the undersigned for all further proceedings.

On June 13, 2013, the parties entered into a Joint Stipulation, wherein the parties stipulated to certain facts contained therein. Those facts have been incorporated in this Recommended Order.

Both parties were represented by counsel at the hearing, which went forward as planned. Petitioner presented the testimony of Junior Vijil, Louis Fata, Richmond James, Daniel Salerno, Rodgerick Everett, and Karen Wiggins. Respondent testified on his own behalf.

The Transcript of the final hearing was filed with DOAH on July 5, 2013. The parties timely filed Proposed Recommended Orders, and same were considered in preparing this Recommended Order.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.

FINDINGS OF FACT

1. Petitioner, Criminal Justice Standards and Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary

   
   

   action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat.

2. At all times relevant, Respondent was a certified Florida Correctional Officer, having been issued certificate number 279704.

3. On October 14, 2010, Respondent was operating or in actual physical control of his motor vehicle in South Miami, Florida. South Miami Police Officer Junior Vijil observed Respondent's vehicle stopped in the middle of the intersection of 58th Court and Southwest 73rd Street. After observing Respondent's driving pattern, Officer Vijil initiated a traffic stop.

4. Officer Vijil approached Respondent's vehicle and made initial contact with Respondent. Officer Vijil observed certain indicators of potential impairment and requested Respondent to step out of the vehicle. Respondent complied with Officer Vijil's request.

5. At the time of the traffic stop, Respondent had a passenger in the front seat of his vehicle. When Respondent exited the vehicle, at Officer Vijil's request, the passenger remained seated in the vehicle. Officer Vijil called for backup officers and awaited their arrival prior to performing field sobriety exercises with Respondent.

   
   

6. The passenger remained seated, unsupervised, in Respondent's vehicle for several minutes until additional law enforcement personnel arrived. When South Miami Police Officer Louis Fata arrived on the scene, Officer Vijil initiated field sobriety exercises.

7. At the conclusion of the field sobriety exercises, Officer Vijil did not immediately arrest Respondent, but rather, requested Respondent provide consent to search the vehicle. Respondent consented to the search.

8. Officer Vijil began the search of the vehicle by first looking in the front interior compartment. He observed, in plain sight, a small, dark, plastic baggie in the center console. The center console's lid was absent. Although the baggie was dark in color, Officer Vijil could observe a white powdery substance that he believed was cocaine.

9. After locating the suspicious substance, Officer Vijil removed the same from Respondent's vehicle and secured it in his patrol vehicle. A field test of the white substance was performed by Officer Vijil and Officer Fata, which resulted in a presumptive positive result for cocaine.

10. Officer Vigil interviewed Respondent and the passenger concerning their knowledge of the suspected cocaine. After both individuals denied any knowledge of the substance, Officer Vijil arrested Respondent for possession of a controlled substance.

    
    

11. Karen Wiggins, a criminalist at the Miami-Dade Police Department Forensic Service Bureau, performed a series of tests on the substance at issue, and credibly testified that the suspected substance was cocaine.

12. Pursuant to the Joint Stipulation, the parties stipulate that, on October 14, 2010, Respondent did unlawfully drive or was in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood or breath alcohol level of .08 or above.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.

14. Petitioner seeks to take penal disciplinary action against Respondent's correctional officer certification for alleged violations of sections 893.13(6), 316.193, or any lesser included offenses, 943.1395(7), 943.13(7), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). Therefore, Petitioner must prove the allegations in the Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence requires that:

    
    

    [t]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    
    

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

    
    

15. Section 943.13(7) establishes the minimum qualifications for certification of correctional officers in the State of Florida. Among those qualifications is the requirement that a correctional officer possess "good moral character," as determined by a background investigation under procedures established by Petitioner. § 943.13(7), Fla. Stat.

16. Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard. Petitioner has adopted rule 11B- 27.0011, which provides in pertinent part:

    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. Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or 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, . . . 893.13, . . . .

          
          

17. Here, the Complaint charges that Respondent

    
    

    (1) unlawfully drove or was in actual physical control of a vehicle while under the influence of alcholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood breath alcohol level of .08 or above, in violation of section 316.193; and (2) unlawfully possessed a controlled subtance, cocaine, in violation of section 893.13(6).

18. As noted above, Respondent has conceded in the Joint Stipulation that, on October 14, 2010, he violated section

    316.193. As such, Respondent is guilty of failing to maintain good moral character, pursuant to rule 11B-27.0011.

19. Turning to the possession of controlled substances allegation, section 893.13(6)(a) provides as follows:

    It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or

    
    

    constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in

    s. 775.082, s. 775.083, or s. 775.084.

    
    

20. If Respondent were shown, by clear and convincing evidence, to have actually or constructively possessed a controlled substance unlawfully in violation of section 893.13(6)(a), he would be guilty of failing to maintain good moral character, pursuant to rule 11B-27.0011.

21. Petitioner concedes that Respondent did not actually possess a controlled substance. Accordingly, the question is whether Petitioner has shown, by clear and convincing evidence, that Respondent constructively possessed a controlled substance.

22. Constructive possession of a controlled substance exists when the accused has knowledge of the presence of a controlled substance on the premises and the ability to maintain dominion and control over it. Brown v. State, 428 So. 2d 250, 252 (Fla. 1983); Evans v. State, 32 So. 3d 188, 189 (Fla. 1st DCA 2010); Hall v. State, 382 So. 2d 742 (Fla. 2nd DCA 1980).

23. If, as here, the vehicle where the substance is found is jointly occupied, the accused's knowledge and dominion and control will not be inferred from the mere ownership of the vehicle or proximity to the contraband, but must be established by independent proof. See Brown, 428 So. 2d at 252; see also

    
    

    Evans, 32 So. 3d at 189; Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976).1/

24. The requisite "independent proof" has been described as follows:

    Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.

    
    

    Robinson v. State, 936 So. 2d 1164, 1167 (Fla. 1st DCA 2006)(quoting Wale v. State, 397 So. 2d 738, 740 (Fla. 4th DCA 1981)). See also Brown v. State, 8 So. 3d 1187, 1189 (Fla. 4th DCA 2009)("[t]his independent proof may consist of 'evidence of incriminating statements or actions, or other circumstances from which a jury might lawfully infer the defendant's actual knowledge of the presence of contraband.'").

25. Petitioner established by clear and convincing evidence that, on October 4, 2010, Respondent was the owner of the subject vehicle; a consensual search of Respondent's vehicle on that date revealed a small plastic bag of a suspicious substance in plain view in the center console; and that a sample of the substance was presumptively determined, and subsequently confirmed by scientific testing, to be cocaine.

26. Petitioner, failed, however, to establish by clear and convincing evidence that Respondent had knowledge of the

    
    

    presence of the cocaine and the ability to maintain dominion and control over it. Respondent testified credibly that he had no knowledge of the cocaine or how it came to be located in his vehicle.2/ It is undisputed that after the initial stop, Respondent exited the vehicle, and the passenger remained inside the vehicle, unsupervised, for several minutes.

27. As noted above, Respondent's knowledge and dominion and control cannot be established by his mere ownership of the vehicle and former proximity to where the substance was later found. The undersigned concludes that Petitioner has not shown, by clear and convincing evidence, that Respondent constructively possessed a controlled substance unlawfully in violation of section 893.13(6)(a), such that he would be guilty of failing to maintain good moral character, pursuant to rule 11B-27.0011.

28. Subsection 943.1395(7) prescribes the penalties that may be imposed by Petitioner in a case of this nature:

    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.

29. The parties have stipulated that Respondent violated section 316.193, and that an appropriate penalty would include six months of probation, with the requirement that Commission- approved substance abuse counseling be completed prior to the end of the probationary period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that:

The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by his violation of section 316.193, Florida Statutes. It is further recommended that Respondent be placed on probation for a period of six months, with the requirement that Commission-approved substance abuse counseling be completed prior to the end of the probationary period.

It is further recommended that the Commission enter an final order dismissing the allegation that Respondent unlawfully constructively possessed a controlled substance in violation of section 893.13(6)(a), Florida Statutes.

DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2013.

ENDNOTES

1/ The undersigned recognizes that the constructive possession cases cited herein are criminal cases in which a more stringent standard of proof (beyond a reasonable doubt) is applicable.

The undersigned has applied the less stringent "clear and convincing evidence" standard in the analysis contained herein.

2/ Evidentiary matters such as credibility of witnesses and resolution of conflicting evidence are the prerogative of the undersigned as finder of fact in administrative proceedings. Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281-82 (Fla. 1st DCA 1985).

COPIES FURNISHED:

Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Maja Sha-ron Holman, Esquire

Holman Law Group Suite 303

7880 West Oakland Park Boulevard Sunrise, Florida 33351

Jennifer Cook Pritt, 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: 13-000821PL

Orders for Case No: 13-000821PL