The Issue The issue is whether Respondent has failed to maintain good moral character, as required by Sections 943.13(7) and 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 20, 2000, and issued him certificate 193831. From March 6, 2000, to March 13, 2002, Respondent was employed as a corrections deputy by the Broward County Sheriff's Office. On November 20, 2001, Respondent was ordered to report to the Sunshine Medical Center and submit to a command-referred drug test. The medical review officer at the Sunshine Medical Center was Dr. Alan Roberts, who had received extensive training in the identification of drugs in employees. Respondent submitted a urine sample for testing. Personnel at the Sunshine Medical Center complied with all applicable policies regarding the collection, storage, transporting, and testing of urine, as well as the reporting of results. The procedure of Sunshine Medical Center is to split samples and retain one of them, so that a test subject may later request retesting of the sample, if the split sample sent to the testing laboratory has produced a positive result. At the testing laboratory, American Medical Laboratories, Respondent's urine tested positive for marijuana metabolites--i.e., THC--and benzodiazepines. Respondent had a prescription for Xanax, so the presence of benzodiazepines is irrelevant to this case. The test results for marijuana are at a level--170 nanograms--to preclude passive inhalation of marijuana. The initial screening by an immunoassay test was followed by gas chromatography/mass spectrometry, which is more accurate and quantifiable. This level of marijuana metabolites is inconsistent with ingestion by way of food. A positive reading would result for 30 days after consumption, if the subject is a regular user of marijuana, and three days after consumption, if the subject is a one-time user of marijuana. On November 29, 2001, Dr. Roberts contacted Respondent and informed him of the results. Respondent stated that he had a prescription for Xanax, but did not explain how the marijuana metabolite had appeared in his urine. Dr. Roberts offered to send the split specimen to the lab for testing, but Respondent said only that he would consider that option. Respondent never got back in touch with Dr. Roberts or Sunshine Medical Center and never otherwise indicated a desire that the split sample be tested. After not hearing back from Respondent regarding retesting, Sunshine Medical Center released the official results to the Broward County Sheriff's Office on December 6, 2001. When interviewed by personnel of the Broward County Sheriff's Office, Respondent offered no plausible explanation for the presence of marijuana metabolites in his urine. He provided sketchy details about a party at which he had eaten some chocolate cake that seemed stale, but could not provide the date of the party or any names of persons in attendance. Unless he were a regular user of marijuana, Respondent would have recalled more details about the party, including the approximate date, because it would have taken place just three days before the testing, if Respondent's consumption of marijuana at the party were a singular occurrence. Respondent's explanation of intoxication by beer, cold medication, and Xanax is insufficient to explain his total loss of memory concerning what should have been such a recent event. Under the circumstances, including obvious inferences, Respondent voluntarily consumed marijuana sufficiently close in time to the date of the drug test, which revealed the presence of marijuana metabolites in Respondent's urine.
Recommendation It is RECOMMENDED that the Criminal Justice Standards Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 19th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James M. Caruso 401 Northwest 103rd Avenue Apartment 252 South Pembroke Pines, Florida 33026
The Issue Whether Respondent correctional officer’s license should be disciplined.
Findings Of Fact Respondent, John W. Bradley, is a certified correctional officer in the State of Florida, holding Law Enforcement Certificate License No. 165671. He has not previously had his license disciplined. Around midnight on February 8, 2000, Officer Danny R. Alsobrooks, DUI Officer, Panama City Police Department, was called to the 4800 block of West Highway 98 by Corporal Victor Melvin of the Panama City Police Department for suspicious drunk driving by the Respondent. Officer Alsobrooks was informed by Corporal Victor Melvin that Respondent had been driving erratically and had an odor of alcohol on his breath. Upon arrival to the scene, Officer Alsobrooks noticed that Respondent was seated and in control of a black Toyota pickup. Officer Alsobrooks began performing field evaluations to assess the sobriety of Respondent. He too noticed an odor of alcohol on Respondent’s breath. Officer Alsobrooks had Respondent perform the one legged stand evaluation. He explained to Respondent what to do. He asked the Respondent to count one thousand one, one thousand two, one thousand three. The Respondent, however, counted one one thousand, two one thousand, three one thousand. Additionally, Respondent hopped during the evaluation and used his arms to maintain his balance. Petitioner’s behavior indicated that he was impaired. Officer Alsobrooks then demonstrated to Respondent the stance for the walk-and-turn evaluation. Respondent was unsteady and unable to maintain balance while he performed the walk and turn; he used his arms for balance, stepped off the line, failed to touch heel to toe numerous times, made an improper turn, and failed to touch heel to toe in his return steps. Again his behavior indicated that he was impaired. Officer Alsobrooks concluded that Respondent was too impaired to operate a motor vehicle and placed him under arrest. Respondent was transported to the Bay County Jail. Upon arrival at the jail, Officer Alsobrooks had the Respondent complete the Implied Consent Warning form, waited for a 20-minute period of time and then escorted Respondent to the Intoxilyzer room to perform a breath test. The first Intoxilyzer test failed due to the presence of mouth alcohol. Therefore, the Intoxilyzer machine did not return a result. Officer Alsobrooks waited another 20 minutes before performing more Intoxilyzer tests. The tests were performed at three-minute intervals and indicated a blood alcohol level of .135, .167, and .159. Respondent offered no credible evidence to dispute these results. These results combined with Respondent's performance on the field tests demonstrated Respondent was unlawfully operating a motor vehicle while he was impaired in violation of Section 316.1932, Florida Statutes. Upon the receipt of the results, Officer Alsobrooks issued a Florida DUI Uniform Traffic Citation No. 444309-X against Respondent, completed and signed a Breath Test Result Affidavit, an Alcohol Influence Report, and a narrative regarding Respondent’s arrest. The criminal charges against Respondent resulted in a Plea Bargain Agreement in Absentia and an Order on Plea in Absentia by the Court. Respondent pled to reckless driving. The penalties included completing DUI school. The evidence did not demonstrate that Respondent has had any other arrests or convictions of any crime. Nor did the evidence show that Respondent had more than one DUI or was habitually driving and drinking. No other evidence regarding Respondent’s moral character was offered by the Petitioner. Without such evidence, one DUI is insufficient to demonstrate that a person is of bad moral character or even raise a presumption that a person is of bad moral character. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent be found not guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2003. COPIES FURNISHED: John W. Bradley 3555 Peony Lane Greenwood, Florida 32443 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, 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
The Issue Whether Respondent is subject to discipline for violating Subsection 943.1395(6) and/or (7), Florida Statutes, and/or Rule 27.0011(4)(d), Florida Administrative Code, in that he failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent was certified by the Commission on October 26, 1995, and was issued Law Enforcement Certificate No. 153749. From October 17, 1994, to April 12, 2000, Respondent was employed as a law enforcement officer for the Escambia County Sheriff's Office. On or about March 29, 2000, the Street Crimes Unit of the Escambia County Sheriff's Office seized a large quantity of marijuana, in two grades, and brought it back to the station to be photographed and placed into evidence bags. Each evidence bag was sealed with a case number and the initials of Investigator Mark Jackson. When the evidence was set out for the media to see, Investigator Jackson noticed that one bag, containing the higher-grade marijuana, had been changed out. The packaging and taping had been changed; the marijuana inside the bag had been swapped out; and the handwriting and taping on the bag was different. Investigator Jackson notified his supervisor of his discovery, and all of the evidence was placed in the vault. The team was sent home. Investigators Paul Hawke and John Sanderson were contacted to look into the discrepancy. All fifteen members of the Street Crimes Unit, from sergeants to investigators, were asked to submit to a urinalysis as part of the internal investigation that ensued. All members of the unit, including Respondent, signed a consent for that purpose. Respondent was observed as being extremely nervous about submitting to the urinalysis, stating that he had handled so much marijuana that he was afraid it would be in his system just from touching it. The collection of urine samples did not occur until the day after the switch was discovered. Deputy Taylor assisted in the collection of the urine specimens, and kept notes of the times of the collections. He sealed and marked the urine samples, made notes, and delivered the samples to the Florida Department of Law Enforcement (FDLE) for testing on March 31, 2000, along with an appropriate tracking sheet. Crime lab analyst Lisa Zeller ran an initial screening test, then a gas chromatography mass spectrometry test which is a confirmatory test. It confirmed the presence of tetrahydrocannabinols (TCH), a component of marijuana, in Respondent's urine, above the level of 13 nanograms. TCH is rendered contraband by Subsection 893.03(1)(c)34., Florida Statutes (1999). Respondent, identified as "Exhibit Nine" on the FDLE lab report, was the only individual on the Street Crimes Squad whose urine sample tested positive for TCH. Respondent did not have an explanation that was plausible to law enforcement investigators as to how the TCH could have gotten into his system. He told them he sucked the air out of bags of marijuana to, in effect, "vacuum seal" the bags. This is not a standard law enforcement technique for preserving evidence. It is not necessary to preserve the freshness of contraband for evidentiary purposes. Respondent was terminated by the Escambia County Sheriff's Department because of his positive contraband drug test. The State Attorney filed criminal charges against Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order finding Respondent guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1999), and revoking Respondent's certification. DONE AND ENTERED this 29th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 October, 2003.
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, James Battle (Battle), has been employed by the County as a correctional officer since June 1988, 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 Battle. 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 Battle 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 Battle 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 possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Battle filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Battle 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 record, 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 Battle on December 18, 1987, at which time he admitted that he had used marijuana. Regarding such use, the proof demonstrates that during the years 1982 and 1983, while a junior and senior in high school, Battle used marijuana approximately 15 times. He has not used marijuana since his graduation from high school in 1983, and has never used any other form of controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Battle's background, that Battle possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana during high school. The Commission's action is unwarranted. Here, Battle, born May 18, 1965, used marijuana approximately 15 times, the last time being over 6 years ago when he was 18 years of age and a senior in high school. He has not used marijuana since, and has never used any other form of controlled substance. 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, Battle has been employed by the County as a corrections officer, a position of trust and confidence, for approximately one year. His evaluations have been satisfactory, 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. Prior to his employment as a corrections officer, and following his graduation from high school, Battle has been continuously employed. Additionally, he has served in the National Guard for almost five years, and attained the rank of E3. Overall, Battle 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, James Battle, 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, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system. Considerable publicity was given to the arrests and school board actions resulting therefrom. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions. No evidence regarding the loss of effectiveness of Respondent Ward was submitted. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be revoked. DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980. COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301 Philip Padavano, Esquire P. O. Box 527 Tallahassee, FL 32302
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of March, 1983.
The Issue The issue presented is whether Petitioner’s application for an educator’s certificate should be granted.
Findings Of Fact Petitioner is 31 years old. He has lived in Florida for the past 11 years. Petitioner works at a rehabilitation center that provides services to individuals with substance abuse problems. He has worked in that job for about a year. As a client advocate, he works with children 16 years of age and older. For ten years Petitioner has served as a volunteer basketball coach in the Flagler County Police Athletic League (PAL). He currently coaches the high-school-aged girls' travel team. Over the years he has coached boys and girls in the fourth grade through the twelfth grade. For three or four years Petitioner has been a volunteer in a church-based youth ministry program. He supervises, mentors, and provides encouragement to the children in the program. Petitioner applied for an educator’s certificate so that he can coach basketball at the high school level. He does not need the certificate to continue coaching in the PAL, but he needs the certificate to work or even volunteer as a high school coach. Petitioner was employed as a certified correctional officer at Tomoka Correctional Institution (TCI) for about four years, until September 23, 2007. TCI is a state prison in Volusia County, Florida, operated by the Florida Department of Corrections (DOC). As Petitioner was driving to work at TCI on September 23, 2007, he saw a team of DOC investigators conducting a drug interdiction at the facility. He pulled his car over to the side of the facility’s entrance road and threw a small package out of the car window before proceeding to the parking lot. TCI staff saw Petitioner throw the package from his car and informed the DOC investigators. The DOC investigators went to the area and recovered the package. The package contained marijuana. It was in a plastic baggie and had been tightly wrapped in paper towels and then covered with medical tape. The manner in which the marijuana was wrapped is consistent with the most common way that drugs are packaged when they are smuggled into a prison. The package was small enough and flat enough to be hidden in a man's boot or around his crotch area and not be detected during a cursory pat-down search. After Petitioner was told by DOC investigators that a drug-sniffing dog alerted to his car, he voluntarily spoke to the investigators and admitted that the package found next to the entrance road was thrown there by him, that he knew it contained marijuana, and that he threw it out of his car when he saw the drug interdiction team at the facility. However, Petitioner denied that he planned to sell or give the marijuana to an inmate or anyone else “inside the walls” of the facility. Petitioner told the DOC investigators, and he testified at the final hearing, that he received the marijuana the day before the incident while he was at a fundraising car wash for his PAL basketball team. The children on the basketball team were at the car wash when the marijuana was delivered, as were Petitioner’s children. Petitioner told the DOC investigators, and he testified at the final hearing, that his sister-in-law called him before the car wash and asked him to help her by allowing a friend to bring marijuana for her to Petitioner at the car wash. She said she would later pick it up from Petitioner. Petitioner told the DOC investigators, and he testified at the final hearing, that he did not give much thought to her request because she was a family member and one should always help out family members. When the marijuana was delivered, Petitioner was at his car which was a distance away from where the cars were being washed. He wrapped the marijuana in paper towels and medical tape, which he had in his car from a prior injury, so that his children, who were helping wash the cars, would not see it when he drove them home in his car. His sister-in-law did not come to pick up the marijuana after the car wash. He forgot that the marijuana was in his car until he was close to work the next day. When he saw the interdiction team at TCI, he stopped and threw the marijuana out of the car. He then drove into the parking lot, parked his car, and went in to work. Petitioner was immediately arrested after his confession to the DOC investigators. He was charged with possession of more than 20 grams of marijuana and introduction of contraband into a state prison. Both of those charges are felonies, but for reasons not explained in the record, the State Attorney elected not to prosecute either of the charges. Petitioner was immediately fired from TCI after his arrest, and he subsequently lost his certification as a correctional officer. Petitioner testified that he understands that what he did was wrong, that he is sorry for what he did, and that he will never do it again. This testimony appeared to be sincere. The character witnesses who testified on Petitioner’s behalf at the final hearing all testified that Petitioner is a good person and a good role model for the children that he coaches and mentors; that this incident was out of character for Petitioner; and that they have no concerns about Petitioner working with children. This testimony was sincere and clearly heartfelt. Although the DOC investigators weighed the marijuana while it was still wrapped and determined that it weighed 37.8 grams, they did not weigh the marijuana itself after removing it from its packaging. There is no competent evidence in this record as to the weight of the marijuana. Accordingly, it cannot be determined whether the amount of marijuana Petitioner threw from his car would have constituted a felony or a misdemeanor. Similarly, there is no competent evidence in this record as to whether Petitioner was on the grounds of a state prison when he threw the marijuana from his car. There are no security fences, no checkpoints, and no security towers before one reaches the signage for the correctional facility and its attendant structures. Petitioner believed that he would have been on prison property if he had passed by the signage for the facility and had crossed the road surrounding the perimeter of the prison. One of the DOC investigators testified that the property boundary was several hundred yards before the entrance sign. The photographs admitted in evidence visually suggest that the correctional facility's property commences beyond the sign and beyond the location where Petitioner threw out the marijuana. There is no competent evidence as to whether Petitioner was on state property with the marijuana in his possession. Petitioner denies that he intended to introduce contraband into the correctional facility. Rather, his actions in throwing the marijuana out of his car at a location he believed to be outside of the facility's property suggest he did not intend to bring the contraband onto the grounds of the facility. Petitioner has met the qualifications for obtaining an educator's certificate to enable him to coach basketball on the high-school level.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Petitioner’s application for an educator’s certificate. DONE AND ENTERED this 2nd day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2009. COPIES FURNISHED: Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Sidney M. Nowell, Esquire Justin T. Peterson, Esquire Nowell & Associates, P.A. 1100 East Moody Boulevard Post Office Box 819 Bunnell, Florida 32110-0819 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Mariam Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
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, Carlton Guthrie (Guthrie), has been employed by the County as a correctional officer since June 24, 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 Guthrie. 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 Guthrie 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 Guthrie 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 possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Guthrie filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Guthrie 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-2 7.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Guthrie on March 9, 1985, at which time he admitted that he had used marijuana 10-15 times during the course of his life, with the last time being approximately 2 years prior to the interview. Regarding such use, the proof demonstrates that Guthrie's use of marijuana was sporadic and infrequent, and that it occurred mostly during his college years. Other than marijuana, Guthrie has not used any controlled substance, and has not used marijuana since at least early 1983. Notwithstanding the County's conclusion, based on its investigation and analysis of Guthrie's background, that Guthrie possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his occasional use of marijuana. The Commission's action is not warranted by the proof. Guthrie was born in Jamaica on November 16, 1952, and immigrated to the United States in 1970. He attended his last two years of high school in Hollywood, Florida, and then attended Biscayne College from 1972-1974, where he graduated with a Bachelor of Arts degree in pre law, with minors in English and psychology. During the course of his college career, Guthrie was employed full- time by a local restaurant, and following this graduation he remained in the restaurant's employ until 1982. Following that employment, Guthrie taught part time as a teacher, in addition to other pursuits, until his employment by the County as a correctional officer in 1985. Guthrie is currently divorced and the father of two children, ages 10 and 15. The children reside with Guthrie in a home he has owned since 1978. He is current in all his obligations, and enjoys a good credit reputation in the community. To date, Guthrie has been employed by the County as a correctional officer, a position of trust and confidence, for approximately four years. His annual evaluations have ranged from satisfactory to above satisfactory, 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. While Guthrie did use marijuana during his college years and as recently as 1983, such use was infrequent and, due to the passage of time, not proximate within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Overall, Guthrie 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, Carlton Guthrie, 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.
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.
