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 The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
The Issue Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.
Recommendation Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED. DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A. 205 South Garden Avenue Clearwater, Florida 33516
Findings Of Fact The Petitioner, A. Lincoln Schaub, was committed to the custody of the Department of Health and Rehabilitative Services by order of the juvenile court in Palm Beach County, Florida, on May 24, 1982, and placed in a drug program called "Here's Help" in Miami after his arrest on burglary charges. After two weeks at home prior to entering the program, Petitioner entered "Here's Help" on June 8, 1982. On June 21, 1982, Petitioner left the "Here's Help" program without consent or knowledge. On June 25, 1982, Petitioner's mother reported that Petitioner had returned home. Petitioner's parents subsequently transported him to detention. On July 17, 1982, he was arrested for burglaries allegedly committed while he was absent from the "Here's Help" program. The Department had a transfer hearing on July 29, 1982, and found that Petitioner had left "Here's Help" without consent. Based on that hearing, Petitioner was transferred to the Florida State School for Boys at Okeechobee. Petitioner left "Here's Help" because he had received demerits for a dirty locker and because he was not permitted to work. While absent from "Here's Help", Petitioner used narcotic drugs and was arrested for several burglaries. Petitioner evidenced a lack of self-discipline and an inability at this time to remain in a program voluntarily. Petitioner has a drug addiction problem.
Recommendation Having found that the Department's initial decision to place Petitioner in the Florida State School for Boys is in the Petitioner's best interest, it is so recommended. DONE and RECOMMENDED this 21st day of October, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Thomas Rolle, Esquire Assistant Public Defender 224 Datura Street West Palm Beach, Florida 33401 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Mr. & Mrs. Melvin Schaub Route 1, Box 642 (Loxahatchee) Pompano Beach, Florida 33060 Ms. Judith Hill, Supervisor Children, Youth and Families Program 111 Georgia Avenue West Palm Beach, Florida 33401 David H. Pingree, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS 1317 Winewood Boulevard Building One, Room 406 Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent Maria I. Casas, held license number PS0014711 issued by petitioner, Department of Professional Regulation, Board of Pharmacy. When the events herein occurred, respondent was prescription department manager for Cuca Pharmacy, Inc. (Cuca) at 11048 West Flagler Street, Miami, Florida. The president and permittee of the pharmacy was Hortensia Lopez-Perez who does not hold a pharmacist license. Respondent has been licensed as a pharmacist in the State of Florida since 1975. In February, 1984 Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. Be was told the cocaine was stored at Cuca. Fernandez arranged a meeting with Zayas and Santos in Hialeah, but no sale was consummated since Zayas and Santos were unable to produce any cocaine. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila who was interested in dealing some cocaine. There he was introduced to Avila by an undisclosed individual, and the three negotiated a sale of ten kilograms at the rear of the store. There is no evidence that Casas was aware of these negotiations or that she was even on duty at this time. In any event, Avila agreed to sell ten kilograms to Fernandez for an undisclosed price. As a good faith gesture, the two further agreed to meet at a nearby shopping center where Fernandez would display the money and Avila would show the drugs. if both parties were satisfied, the sale would be consummated at Cuca. Fernandez went to the shopping center at the designated time, but Avila never showed. Fernandez then returned to the drug store where the permittee (Lopez-Perez) told him the cocaine was on its way and not to worry. Although Casas was on duty when Fernandez met with Lopez-Perez, it is found she was not privy to the conversation as it related to a shipment of cocaine. Several hours later Fernandez received a telephone call advising that the cocaine had arrived and to return to Cuca. He did so and met with Avila and Lopez-Perez in the rear of the store. The three agreed on a sale within a few days. Again Casas was not a party to these discussions. On February 29, Fernandez received another telephone call from his informant and was told the cocaine could be purchased at Cuca around 3:00 p.m. At the designated time, Fernandez, Lopez-Perez and the informant went to the rear of the store. Casas joined them a moment later to use the restroom which was also located in the rear of the store. As Casas came out of the restroom, Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. Although Casas was in the vicinity of the transfer, it is found she did not know the nature of the transaction. This is because Casas had no reason to believe that drugs were being illicitly transferred, and she was only in the rear of the premises for a matter of moments to use the restroom. After her business was completed she returned to the front of the store. Shortly thereafter, both Casas and Lopez-Perez were arrested by federal agents for allegedly violating federal narcotic laws. The contents of the bag transferred from Lopez-Perez to Fernandez were subjected to a chemical analysis and found to contain 2.2 pounds (one kilogram) of 95 percent cocaine hydrochloride, a controlled substance and legend drug which requires a prescription to dispense. The drug was dispensed to Fernandez without a prescription. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca did not order any cocaine for prescription purposes during the period from January 1, 1982 - through June 30, 1984. This was confirmed by Casas' testimony. As prescription manager it was her responsibility to maintain all drug records providing for the security of the prescription department. Lopez was convicted on August 16, 1984 on two counts of violating federal statutes. She is now appealing her conviction. Although Casas was arrested with Lopez-Perez Casas was not convicted of any crime relating to the illicit drug transactions in question. There is no evidence that Casas was involved in or knowingly condoned the illegal drug activity, or that she was negligent in supervising the licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the two administrative complaints against respondent be DISMISSED, with prejudice. DONE and ORDERED this 20th day of January 1986, in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1612 & 85-0968 PETITIONER: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 1. 7. Essentially covered in finding of fact 3. 8. Essentially covered in finding of fact 3. 9. Essentially covered in finding of fact 4. 10. Covered in finding of fact 5. 11. Covered in finding of fact 5. 12. Covered in finding of fact 5. 13. Covered in finding of fact 6. 14. Covered in finding of fact 6. 15. Covered in finding of fact 1. 16. Covered in finding of fact 5. 17. Covered in finding of fact 7. 18. Covered in finding of fact 1. 19. Covered in finding of fact 7. 20. Covered in finding of fact 1. COPIES FURNISHED: Bruce D. Lamb, Esquire 130 N. Monroe St. Tallahassee, FL32301 Rolando A. Amador, Esquire 799 Galiano, Suite 206 Coral Gables, Florida 33134
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission in 1981, as a law enforcement officer, Certification Number 113689, and at all time relevant, the certification was active. On February 25, 1993, the Respondent was employed as a police officer with the Palm Bay Police Department and was on duty during the relevant time period. Respondent had been a certified law enforcement officer for a period of sixteen (16) years in Nebraska and Florida. On February 25, 1993, Officer Thomas Krieger while on duty arrested a suspect on several out of state felony warrants. The warrants consisted of serious violent offenses and the suspect's criminal history showed a history of violence. The officer was concerned about the potential for violent actions by the prisoner. He contacted the dispatcher and requested assistance from another officer. Respondent was on duty and responded to the request to assist Officer Krieger. Respondent met him in the sally port at Police Headquarters. He assisted in the booking of the prisoner and placed him in Holding Cell E, one of five holding cells in the room. Officer Krieger went and sat at the booking table near the computer which was approximately 25 to 30 feet away from the holding cell. It took approximately twenty minutes of continuous writing for Officer Krieger to complete his report. Krieger could not see into the cell and did not hear the prisoner yelling or speaking from where he was sitting. He also could not hear Respondent very well when he spoke to the prisoner. Officer Renkens arrived during this time with an intoxicated female, who had been arrested for DUI. She was loud and abusive during the booking process and after being placed in a cell. The Booking Room area is acoustically unsound. The area is loud with constant noise from prisoners, officers, telephones, and other equipment. Many individuals were entering and exiting the holding cell area. There were also numerous telephone calls coming in during the relevant period. Dispatcher Lynn Bombriant observed Krieger's and Respondnet's prisoner on the TV monitor make obscene gestures and remarks as the female prisoner was walking through. She believed at the time that he was attempting to antagonize the female prisoner. Bombriant observed the prisoner grab his crotch and make obscene gestures and actions. Bombriant contacted Respondent several times and advised him that the actions being conducted by the prisoner were distracting and very crude in nature. She asked him to have the prisoner stop his crude behavior. Respondent walked up to the prisoner numerous times and advised him to sit down and cease his actions. The prisoner refused to comply. After numerous attempts to have the prisoner sit down and stop making obscene gestures and actions, Respondent advised him to step away from the door so he could enter the cell. The suspect refused after numerous requests. Respondent opened the trap door and sprayed a chemical agent on the individual, striking him on the left side of his face. This forced him back from the door. He then went over the sink in the cell and washed out his eyes and walked around in the cell. A number of minutes later Respondent entered the cell and handcuffed the prisoner. Upon entering the cell, Respondent made no other physical contact with the prisoner except to handcuff the individual. On February 25, 1993, there was a force continuum utilized by the Palm Bay Police Department which required that soft force be implemented after verbal commands were unsuccessful. Soft force is considered either the use of handcuffs, pain compliance holds, or chemical agents. There was no policy implemented by Palm Bay which required or set forth any guidelines for the use of chemical agents in the Booking Room until after February 25, 1993. Respondent completed a brief supplemental report concerning the incident which report was attached to Officer Kreiger's report. Although the supplemental report was hurriedly prepared, it did not contain material misrepresentations of fact.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be DISMISSED. DONE AND ENTERED this 22nd day of December, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8, 9 (in part), 11, 13, 21, 22, 24, 25, 26, 27, 38. Rejected as against the greater weight of evidence: paragraphs 7, 9 (in part), 17, 20, 23, 29, 30, 31, 32, 37. Rejected as subsumed, irrelevant or immaterial: pragraphs 10, 12, 14, 15, 16, 19, 28, 33, 34, 35, 36, 39, 40, 41, 42. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 6, 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23. Rejected as subsumed irrelevant or immaterial: paragraphs 3, 4, 5, 9 (in part). COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 George Turner, Esquire 932 South Wickham Road West Melbourne, Florida 32904 A. Leon Lowry, Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. 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 27th day of March 1991.
Findings Of Fact At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of December, 1995. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208 Tampa, Florida 33607 A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
