Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 7, 2006. He holds certificate number 255361. On June 24, 2006, a Department of Corrections contraband interdiction team arrived at Gadsden Correctional Institution to conduct an operation that included the use of dogs to detect narcotics in vehicles parked in the Institution's parking lot. The Respondent was on duty at the Institution that day. After one of the dogs alerted on a car owned by the Respondent, the Respondent was summoned. He unlocked the car and consented to have his vehicle searched. The officer searching Respondent's car removed all the papers and other items from the glove compartment on the passenger side of the vehicle. He observed trash in the bottom of the glove compartment: sand, pebbles, hair, and the other normal debris that builds up over time in a glove compartment. Also on the bottom of the glove compartment was an unidentified sticky substance. The officer used his gloved hand to scrape up everything from the bottom of the glove box and placed it on a plain, white paper. Within the scrapings were a green leafy substance and a brown leafy substance. He separated these substances from the other debris on the white paper and placed them on his gloved hand. The quantity of substances he recovered was, according to his description, less than one gram, the size of a couple pinches of salt, a minute amount the size of a dime or smaller. He then took the substances on his hand to the interdiction team leader, who performed a reagent field test and determined that they were cannabis. It was the officer's opinion based upon his expertise in the identification of cannabis that the substances had been in the glove compartment for a long time. The officer then entered the back of Respondent's vehicle and removed the back seat. The area under the back seat had not been cleaned in a "very, very long time," and he discovered pebbles, gravel, sand, moldy French fries, and other debris. He also observed what looked to him like the residue of cannabis but did not bother to remove or test it. Doing so would have required hand-picking through the dirt and debris with a tweezers. Respondent was relieved of duty and has not worked as a correctional officer since that time. At the time, Respondent denied that the cannabis was his, denied any knowledge of it, and offered to take a urinalysis. However, he was not tested, and there is no evidence that any criminal charges were ever filed. At the time, Respondent owned two cars. His primary vehicle, which he drove to work and which he would not loan to others to drive, was a 2004 Chevrolet Impala. His secondary vehicle, which he did not drive to work and which he loaned to others to drive, was a 1999 Buick which he had purchased in March 2005. The vehicle searched by the interdiction team that day was the Buick, which had just been returned to him after being out on loan for approximately a month, and which he decided to drive to work that day. Among the persons who drove the Buick were Monica Phillips, Rontez Phillips, and Rontarius Phillips. The first two persons testified at the final hearing. Rontarius Phillips did not testify since he is incarcerated. The criminal conduct causing his incarceration was not revealed at the final hearing. Monica Phillips is Respondent's girlfriend. They have been together for seven years and have 3 children. Rontez Phillips and Rontarius Phillips are cousins of Monica, but Respondent sometimes refers to them as his cousins since he and Monica have been together for so long.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint in this cause. DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 14th day of May, 2007. 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 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Damari V. Wade
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hawks. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hawks had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hawks and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hawks has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue By letter dated July 18, 1977 the Division of Alcoholic Beverages and Tobacco disapproved Petitioner's application for transfer of beverage license for the stated reason that corporate officer Anthony DuVal was not believed to be of good moral character. By letter dated July 25, 1977 DuVal contested the denial of the license transfer and requested a hearing. Two witnesses including DuVal testified in behalf of Petitioner, two witnesses were called by Respondent, and 4 exhibits were admitted into evidence.
Findings Of Fact Red Wing Enterprises, Inc., a Florida corporation, acquired ownership of the Red Road Lounge and the beverage license appurtenant thereto. Anthony DuVal and his wife own fifty percent of the stock of Red Wing Enterprises although Exhibit 3 shows DuVal to own one hundred percent of the applicant. Exhibit 3 shows DuVal was born in 1933; he testified that he is now 46. He changed his name to DuVal from Anthony Anello. On his original application, Exhibit 3, under his arrest record DuVal showed arrests in 1961 for FHA fraud and worthless check for which he was placed on probation and in 1965 a conviction for buying receiving, and concealing stolen property for which he was sentenced to one year in the county jail. During the investigation of his application DuVal was questioned at the Miami Division of Beverage office in April, 1977 regarding various arrests. He then denied having been arrested in New Jersey under the name of Anello and had no recall of various other arrests prior to 1960. Exhibit 4, Personnel Questionnaire, was prepared by DuVal with assistance of counsel on December 9, 1977 at the time of his previously scheduled hearing which was then continued until December 15. Exhibit 4 shows 6 worthless check offenses between March and August, 1960 for which he pleaded guilty and was placed on two year's probation; worthless check conviction in 1961 for which he was given probation; PEA fraud conviction 1961, for which he was given probation; a grand larceny charge dismissed for want of prosecution 10-7-63; aggravated assault, 1966 for which he was found not guilty; possession of firearms by a convicted felon, 1966 which was dismissed for want of prosecution; buying, receiving or concealing stolen property, 1965 and 1967 for which he was found not guilty; worthless check, 1967 for which he was found not guilty; buying and receiving or concealing stolen property, 1965, found guilty and sentenced to one year in county jail; and buying and receiving stolen property, 1969 for which he was found not guilty. In his testimony DuVal admitted arrests and convictions in New Jersey under the name of Anello plus numerous arrests from the operation of his store "Tony's Trading Post" in Miami as well as citations for not keeping his property clean of trash. His explanation of Exhibit 3 not including numerous arrests was that he thought only convictions need to be reported. His explanation for not listing the arrests prior to 1960 was that he thought he only needed to go back fifteen years in disclosing his record. DuVal described his trading post as a borderline operation by which he obviously implied that he often bought stolen property but could only take the seller's affidavit that the property was rightfully his to tell. For complaints stemming from this operation he was arrested perhaps 20 times but was not convicted. Numerous other times he was arrested for municipal code violations when trash was dumped on his property. In 1972 DuVal had his civil rights restored that had been -lost by reason of his convictions of the worthless check offenses and FHA fraud in 1961, and for the 1965 conviction of buying, receiving and concealing stolen property. The one witness who testified regarding DuVal's character had worked for DuVal as bookkeeper and bartender when he first took over the Red Road Lounge. Although she testified DuVal's reputation was good and people spoke highly of him, her observations were limited generally to the patrons of the bar. She had never spoken to the police, to patrons of Tony's Trading Post, or to any of the local politicians she knew, about DuVal's reputation. DuVal's explanation for failure to bring in various witnesses whose names he dropped as good friends, was that he didn't want them to know about his criminal record. DuVal owns motels, apartments, the Trading Post, and several lots in Miami in addition to the interest he acquired in the Red Road Lounge.
The Issue The issue in this case is whether the Respondent failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.
Findings Of Fact Based on the evidence received at the formal hearing, the following facts are found: The Respondent, James L. Jackson, was certified by the Criminal Justice Standards and Training Commission as a correctional officer in 1981. At all times relevant and material to these proceedings, the Respondent was a correctional officer sergeant employed by the Broward County Sheriff's Department. In late July or early August of 1989, during the course of investigating illegal conduct by other employees of the Broward County Sheriff's Department, a Detective Dansky, then working in the Internal Affairs Office of the Broward County Sheriff's Department, was told by one of the admitted wrongdoers that he had heard that several employees of the Sheriff's Department, including the Respondent, were involved in criminal activity related to the possession, use, or distribution of controlled substances. Shortly after receiving that information, Detective Dansky contacted the Respondent and requested that he provide a statement in response to the allegation that he had been involved in illegal drug activity. On August 8, 1989, the Respondent reported to the Internal Affairs Office, where he met with Detective Dansky. After being advised of the specific allegations that had been made against him, the Respondent gave a statement to Detective Dansky. The Respondent's statement consisted of a denial of all allegations of misconduct. After taking the Respondent's statement, Detective Dansky offered the Respondent the option of furnishing a urine sample for drug testing in order to resolve the issue. The Respondent voluntarily agreed to provide a urine sample. Detective Dansky initiated the drug testing process by asking the Respondent if he had been using any drugs that might show up on the test. The Respondent stated that he had not used any drugs. Shortly thereafter, the Respondent provided a urine sample. The sample was collected under circumstances which verified that the sample was actually provided by the Respondent and the sample was promptly sealed in a manner which made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was also given a unique identifying number. The urine sample was properly protected until it was turned over to the forensic laboratory, where it was received in good condition with no evidence of tampering. At the laboratory the Respondent's urine sample was kept in a secure manner during the testing process. At the laboratory, adequate procedures were used to ensure that the Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the sample had not been tampered with. A portion of the Respondent's urine sample was submitted to an immunoassay screening analysis. The screen analysis indicated the presumptive presence of benzoyleconine, a unique metabolite of cocaine. Following the screen analysis, a second portion of the Respondent's urine sample was submitted for analysis by means of gas chromatography/mass spectrometry, which is the most reliable and accurate method for confirmatory drug testing. The gas chromatography/mass spectrometry analysis of the Respondent's urine sample was positive for the presence of benzoyleconine in a concentration of 4903.5 nanograms per milliliter. That concentration of benzoyleconine is consistent with, and indicative of, the Respondent's voluntary ingestion of cocaine within a time frame of approximately one to four days prior to the collection of the urine sample. The Respondent's positive drug test results were received by the Internal Affairs Office of the Broward County Sheriff's Department on August 15, 1989. On that date, Detective Dansky again met with the Respondent. Detective Dansky told the Respondent that the Respondent's urine sample had been confirmed positive for cocaine. The Respondent told Detective Dansky that he does not do things like that and that it could not be him. 1/ As a result of the positive drug test results, the Respondent was suspended and ultimately terminated from his position as a correctional officer sergeant with the Broward County Sheriff's Department. At the time of his suspension, the Respondent had worked for the Broward County Sheriff's Department for approximately nine and a half years. Prior to August of 1989, the Respondent had an excellent work record with the Broward County Sheriff's Department.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent has failed to maintain good moral character and revoking the Respondent's certification as a correctional officer. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991.
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 276769. On or about July 3, 2008, Respondent was driving his vehicle on State Road 20 in Calhoun County. Trooper Philip Spaziante of the Florida Highway Patrol observed Respondent speeding and conducted a traffic stop of Respondent’s vehicle. After Respondent pulled to the side of the road and stopped, Trooper Spaziante explained to Respondent why he had stopped him. As he spoke to Respondent, he noticed that Respondent appeared to be exceptionally nervous. Respondent told Trooper Spaziante that he was on his way to Port St. Joe to spend the weekend at the beach. Trooper Spaziante then asked Respondent if he would consent to a search of his vehicle. Respondent consented to the search. Trooper Spaziante found a purple cloth “Crown Royal” bag in the driver’s side door of Respondent’s vehicle. Trooper Spaziante found a small quantity, less than 20 grams, of cannabis (marijuana) inside a Skoal (chewing tobacco) container which was inside the Crown Royal bag. Trooper Spaziante is trained in the recognition of the smell of burnt cannabis. During his nine years as a State Trooper, he has encountered cannabis many times, during traffic stops in particular. Based upon his experience, Trooper Spaziante was able to identify the substance in the Skoal can as cannabis. Trooper Spaziante then placed Respondent under arrest for possession of a controlled substance. After finding the marijuana, Trooper Spaziante contacted Deputy William Dalton of the Calhoun County Sheriff’s Office and requested that he come to the scene and assist. After Deputy Dalton arrived, the two officers continued the search of Respondent’s vehicle. Deputy Dalton is a police canine handler. Deputy Dalton is also trained in recognition of cannabis and cannabis paraphernalia. He is the handler for Gina, a K-9 dog certified in narcotics investigation by the American Canine Police Association. Deputy Dalton deployed Gina to conduct an exterior “sniff” of Respondent’s vehicle. Gina "alerted" as a result of her sniff of Respondent’s vehicle, indicating that narcotics were in the vehicle. Deputy Dalton then continued to search Respondent’s vehicle. The officers found a marijuana “blunt,” which is a cigar with some of the tobacco removed and replaced with marijuana. Trooper Spaziante observed some loose tobacco that appeared to have been removed from the cigar. The officers found a duffle bag in the back seat of the vehicle. The Respondent told the officers that the bag was his and that it contained clothing and personal items for his trip to Port St. Joe. Deputy Dalton took the duffle bag out of the vehicle where Gina “alerted” as a result of her sniff of Respondent’s duffle bag. Deputy Dalton then searched the duffle bag. Inside the duffle bag was a small smoking pipe commonly used to smoke marijuana. Deputy Dalton also observed marijuana residue in the bowl of the pipe. Respondent stated that he had forgotten that the pipe was in the duffle, and that it had been in there a long time. Respondent was arrested and charged with possession of less than 20 grams of marijuana and possession of drug paraphernalia.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of Respondent, Ben C. Cramer. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 22nd day of October, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ben C. Cramer Michael Ramage, General Counsel 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
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that a Correctional Officer and Correctional Probation Officer have good moral character. Respondent is charged with violating Section 893.13(1) and/or 893.13(6), or any lesser included offenses. See Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.
Findings Of Fact Respondent is a certified Correctional and Correctional Probation Officer in the State of Florida. She has been employed in her field for fourteen and a half years, and lost her job as a result of the following events. On October 19, 2000, a search warrant was served at 1530 Northeast 3rd Avenue, Gainesville, Florida, a residence Respondent shared with her husband and two minor children. Upon search of Respondent's residence, law enforcement personnel discovered a marijuana "indoor grow operation," comprised of approximately 52 plants. Some plants were as much as five feet tall. Processed marijuana and marijuana being processed were also present. Law enforcement officers estimated the total street value of the marijuana confiscated to be approximately $53,000.00. This indoor-grow operation involved special apparatuses for lights, heat lamps, air conditioning, watering, fertilizing, and drying the marijuana in a utility room off the carport and special air conditioning and drying apparatuses in the back yard. Magazines on growing marijuana were located elsewhere in the house. The smell of processed marijuana permeated other parts of the house besides the utility room, which had limited access. The heat lamps in the grow room raised the temperature in the house. As a result of the search of Respondent's residence, Respondent was arrested for violating Section 893.13, Florida Statutes' prohibition against the cultivation of cannabis, the technical name for marijuana. Carol Ann Starling had worked with Respondent for approximately two and one-half years as a team member of a drug interdiction team with the Department of Corrections. Among Ms. Starling's and Respondent's responsibilities were entering correctional facilities unannounced, searching (including vacuuming the clothing of) inmates and placing suspected drugs in an assay machine. The team members then read the assay machine printouts to determine what type of drug had been discovered. Respondent and Ms. Starling specifically tested materials to locate or verify the existence of marijuana at the Dade Correctional Institution. Under these circumstances, Respondent's denial of knowledge of the marijuana grow operation in her residence is not deemed credible. Respondent was criminally charged with (1) manufacturing cannabis and (2) possession of more than 20 grams of cannabis. Each of these offenses constitutes a felony, pursuant to Section 893.13, Florida Statutes.1 Both charges were dismissed by a nolle/no information, due to "appropriate administrative action deemed sufficient in lieu of prosecution."
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Alfonso Morales (Morales), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Morales. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Morales had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Morales and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly carried a concealed firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Morales filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Morales denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Morales on December 18, 1985, at which time he divulged that, as to arrests, he had been arrested one time in 1980 for carrying a concealed weapon and that, as to drug usage, he had used marijuana one time "many, years ago." Regarding the use of marijuana, the proof demonstrated that Morales had used it but once, and that was in 1976, when he was 17 years old and attending high school. Regarding his arrest for carrying a concealed weapon, the proof demonstrates that in August 1980, Morales was stopped while driving in the City of Miami Beach for a "routine traffic offenses (unsafe equipment)." Following the stop, Morales volunteered to the officers that he had a .25 caliber automatic pistol under the driver's seat which, upon discovery by the officers, resulted in his arrest. No charges were filed, however, as a consequence of that arrest, and Morales' arrest record was expunged and sealed by court order in August 1985. Notwithstanding the County's conclusion, based on its investigation and analysis of Morales' background, that Morales possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, Morales, born March 9, 1959, used marijuana one time, 13 years ago when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Nor, can Morales' arrest for carrying a concealed weapon, considering what has occurred in his life since that time, be considered persuasive proof, if it ever was, of bad moral character. 4/ Morales graduated from high school in 1981, and entered the U.S. Army in 1982 where he served honorably for over three years. During his service he attained the rank of sergeant, enjoyed a top secret security clearance, garnered several commendations, and all drug screenings met with negative results. Following his discharge from the services, Morales was employed by the State of Florida, Job Services of Florida, until his employment by the County. To date, Morales has been employed by the County as a corrections officer, a position of trust and confidence, for almost three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Morales has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Alfonso Morales, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Theresa Devergiles-Lamary (Lamary), has been employed by the County as a correctional officer since October 23, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Lamary.3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lamary had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Lamary and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Lamary filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Lamary denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Lamary on March 10, 1985, at which time she admitted that she had used marijuana. Regarding such use, the proof demonstrates that Lamary used marijuana no more than five times, and more probably three times, and that she last used marijuana in 1982 when she was in high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Lamary's background, that Lamary possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana. The Commission's action is not warranted by the proof. Here, Lamary, born July 8, l964, used marijuana no more than five times, the last time being over 7 years ago when she was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ To date, Lamary has been employed by the County as a corrections officer, a position of trust and confidence, for over four years. Her annual evaluations have ranged from satisfactory to above satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Lamary has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Theresa Devergiles-Lamary, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
