Findings Of Fact In July 1975, in Hillsborough County, Florida, Petitioner was arrested on the charge of buying, receiving and concealing stolen property. He was placed in the Pretrial Intervention Program, which he successfully completed. As a result, formal charges were either never filed or were dismissed by the State Attorney. On January 18, 1982, Petitioner entered a nolo contendere plea to one charge of trafficking in excess of ten thousand pounds of cannabis in Hernando County, Florida. Adjudication of guilt and imposition of sentence was withheld by the court. Petitioner was placed on probation for twelve years. On August 1, 1983, in Pinellas County, Florida, Petitioner entered pleas of nolo contendere to the offenses of aggravated assault with the use of a firearm and carrying a concealed weapon on or about his person. The court accepted Petitioner's pleas. Adjudications of guilt were withheld on August 1, 1983. Petitioner was placed on probation for a period of five years, to run concurrent with his probation in Hernando County, Florida. Petitioner's probation in the trafficking case was terminated early in Hernando County, Florida, on March 14, 1985. Petitioner's probation for the aggravated assault and the concealed weapon was terminated early in Pinellas County, Florida, on December 11, 1985. Petitioner was never adjudicated guilty of the charges the Division used as the basis for the denial of his application. As a result, he has not been convicted of any of these crimes as the term "conviction" is defined in Subsection 493.6101(8), Florida Statutes. Petitioner submitted eleven letters of good moral character from people in the community who have known him throughout the years and are aware of the prior criminal charges.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's application for a Class "CC" Private Investigator Intern License should be granted. ENTERED this 17th day of June, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY 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 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Hearing Officer finding #7. The Department's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Contrary to prehearing stipulation. See Preliminary Statement. Accepted. See Hearing Officer finding #1. Reject. Contrary to fact only one charge of trafficking in the Information and only one nolo contendere plea on a charge of trafficking. As the basis given for licensure denial was alleged trafficking charges, the importation of cannabis charge and nolo contendere plea were not considered by the Hearing Officer pursuant to Subsection 493.6118(3), Florida Statutes. See Hearing Officer finding #2. Accepted. See Hearing Officer findings #3 and #5. Accepted. See Hearing Officer finding #7. COPIES FURNISHED: Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, Florida 33602 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire Honorable Jim Smith General Counsel Secretary of State Department of State The Capitol The Capitol Tallahassee, Florida 32399-0250 Tallahassee Florida 32399
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Alfonso Morales (Morales), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Morales. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Morales had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Morales and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly carried a concealed firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Morales filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Morales denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Morales on December 18, 1985, at which time he divulged that, as to arrests, he had been arrested one time in 1980 for carrying a concealed weapon and that, as to drug usage, he had used marijuana one time "many, years ago." Regarding the use of marijuana, the proof demonstrated that Morales had used it but once, and that was in 1976, when he was 17 years old and attending high school. Regarding his arrest for carrying a concealed weapon, the proof demonstrates that in August 1980, Morales was stopped while driving in the City of Miami Beach for a "routine traffic offenses (unsafe equipment)." Following the stop, Morales volunteered to the officers that he had a .25 caliber automatic pistol under the driver's seat which, upon discovery by the officers, resulted in his arrest. No charges were filed, however, as a consequence of that arrest, and Morales' arrest record was expunged and sealed by court order in August 1985. Notwithstanding the County's conclusion, based on its investigation and analysis of Morales' background, that Morales possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, Morales, born March 9, 1959, used marijuana one time, 13 years ago when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Nor, can Morales' arrest for carrying a concealed weapon, considering what has occurred in his life since that time, be considered persuasive proof, if it ever was, of bad moral character. 4/ Morales graduated from high school in 1981, and entered the U.S. Army in 1982 where he served honorably for over three years. During his service he attained the rank of sergeant, enjoyed a top secret security clearance, garnered several commendations, and all drug screenings met with negative results. Following his discharge from the services, Morales was employed by the State of Florida, Job Services of Florida, until his employment by the County. To date, Morales has been employed by the County as a corrections officer, a position of trust and confidence, for almost three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Morales has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Alfonso Morales, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since October 13, 1981, certified by the Commission as a correctional officer. She holds certificate number 3-81- 5000-00. At the time of the incidents alleged in the Amended Administrative Complaint, Respondent was employed as a correctional officer with the Broward County Sheriff's Department (hereinafter referred to as "BSO"). On November 9, 1989, Lieutenant Charles Bass of the Davie Fire Department and other Davie Fire Department personnel were dispatched to a residence located at 13710 Southwest 36th Court in Davie, Florida, to respond to a report of a gasoline spill inside the structure. When Lieutenant Bass arrived on the scene, he was met outside the residence by Respondent, who identified herself as the owner and a resident of the home. Respondent told Lieutenant Bass that, upon returning home that day, she had discovered that someone had apparently entered the residence during her absence and spilled gasoline on the carpeting. In view of the information with which he had been provided, Lieutenant Bass contacted the BSO Bomb and Arson squad, as well as the Davie Police Department, to request that a criminal investigation be initiated. After having done so, he entered the home and found that the living room carpeting was saturated with gasoline. To reduce the danger of an explosion or fire, it was necessary to remove the gasoline-saturated carpeting from the home. Before this could be accomplished, however, the furniture that was on the carpeting had to be moved. One of the pieces of living room furniture that Lieutenant Bass and his colleagues had to move was a recliner. Under the recliner was an ashtray that contained the remnants of two hand-rolled, unfiltered cigarettes. Lieutenant Bass noticed the ashtray and its contents when the recliner was lifted off the floor. He thought that, given their appearance, the cigarette remains in the ashtray might possibly contain marijuana. He therefore brought the matter to the attention of the law enforcement officers who had arrived on the scene. One of these law enforcement officers was Detective Wayne Boulier of the Davie Police Department, who had extensive training and experience in the identification of illegal substances. Detective Boulier, based upon his visual inspection of the cigarette remains in the ashtray, believed that they contained marijuana. He then field-tested the cigarette remains using a Valtox disposal kit. The results were positive for the presence of cannabis. Detective Boulier then confiscated the cigarette remains. When he returned to police headquarters, he placed the suspected contraband in the police property room. Before completing his report of the incident, Detective Boulier interviewed various people, including Respondent. In his completed report, Detective Boulier noted that marijuana had been found in Respondent's home. A copy of the report was sent to BSO, Respondent's employer. On December 11, 1989, after reviewing the report, Lieutenant Mike Ryan, the Executive Officer of BSO's Internal Affairs Division, assigned Detective Carol Dansky, one of his subordinates, to investigate the matter. Detective Dansky was instructed to contact Respondent and inquire if she would undergo urinalysis testing. Detective Dansky and Respondent were acquaintances. They had previously worked together in BSO's Internal Affairs Division. The same day that she was assigned the case Detective Dansky telephoned Respondent at the detention facility at which Respondent was working and asked Respondent to report to the Internal Affairs Division office to see her as soon as possible. Detective Dansky did not volunteer why she wanted to meet with Respondent and Respondent did not ask Detective Dansky to explain the purpose of the proposed meeting. Respondent complied with Detective Dansky's request and reported to the Internal Affairs Division office later that day. Detective Dansky informed Respondent of the report that had been received from the Davie Police Department regarding the discovery of marijuana in Respondent's home and that, as a result of this report, BSO's Internal Affairs Division was requesting 2/ that Respondent provide a urine sample for drug testing. Respondent freely and voluntarily consented to provide Detective Dansky with the requested urine sample. She indicated to Detective Dansky that she was in a hurry and wanted to get the matter over with quickly. Urine samples collected by BSO's Internal Affairs Division were tested and analyzed by Metpath Laboratories (hereinafter referred to as "Metpath"). 3/ Metpath provided BSO with sterile containers for the storage of the samples, 4/ as well as identifying labels and forms which were to be filled out and sent with the samples. Detective Dansky went to where these materials were kept and obtained a sterile container and the requisite form and labels. She also obtained from this area some food coloring and a clean styrofoam cup that, by all appearances, had not been used previously. Detective Dansky then walked with Respondent to the ladies' room. Upon entering the ladies' room, Detective Dansky went into one of the stalls and placed food coloring in the toilet bowl, after which she went to the sink in the ladies' room to wash her hands. While Detective Dansky was washing her hands, Respondent went into the stall that Detective Dansky had vacated and urinated into the clean styrofoam cup that Detective Dansky had given to her for that purpose. Respondent came out of the stall holding the styrofoam cup containing her urine sample in her hand. She then poured the urine sample from the styrofoam cup into the Metpath-provided sterile container. After the styrofoam cup was emptied, it was discarded in the waste basket in the ladies' room. Detective Dansky promptly sealed the container into which Respondent's urine sample had been poured. The container was sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. Taking the sealed container with her, Detective Dansky, accompanied by Respondent, walked back to her office. In her office, Detective Dansky filled out a Metpath Drug Screen Test Requisition (Chain of Custody) form. On the line on the form where the "Patient Donor Signature" was supposed to be placed, Respondent, consistent with accepted BSO practice and policy designed to protect the confidentiality of test results, instead put her initials, as well as her BSO computer control number, 2559. After the form was completed, Detective Dansky placed green labels, each bearing the same unique identifying number, on the form and the sealed container. She then put the completed form and the container in an envelope. The envelope was stored in a refrigerator until it was picked up by a courier. The envelope was delivered to Metpath's forensic laboratory later in the day on December 11, 1989. The sealed container with Respondent's urine sample was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of the unique metabolite of tetrahydrocannabinol (THC), which is produced when marijuana is ingested and metabolized in the body. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method currently available, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of the THC metabolite in a concentration of 27 micrograms per liter. 5/ The microgram per liter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana prior to the collection of her urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. BSO's Internal Affairs Division received the results of the testing on December 15, 1989. On December 20, 1989, Detective Dansky took a statement from Respondent. In her statement, Respondent willfully and knowingly provided false information when she denied using marijuana. Respondent also denied that Detective Boulier had informed her that marijuana had been found in her home. BSO eventually terminated Respondent's employment on the grounds that Respondent had engaged in the illegal use of drugs and had provided false information during an internal investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking her certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1994. STUART M. LERNER 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 16th day of August, 1994.
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, Signe Anthony (Anthony), has been employed by the County as a correctional officer for approximately one and one-half years, 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 Anthony. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 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 Anthony 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 Anthony 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, Anthony filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Anthony 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 Anthony on May 9, 1987, at which time she admitted that she had tried marijuana. Regarding such use, the proof demonstrates that on one occasion, at age 13 and while a student in junior high school, Anthony took three or four "drags" from a marijuana cigarette. Other than that one occasion Anthony has not used marijuana or any controlled substance. In reaching this conclusion, the Commission's contention that Anthony's application with the City of Miami for employment as a police officer was denied in 1985 because her pre- employment urinalysis ostensibly proved positive for the presence of marijuana has not been overlooked. However, the proof offered to demonstrate that her urinalysis proved positive for the presence of marijuana was not credible or reliable. Contrasted to such unpersuasive proof was the credible testimony of Anthony that she had used marijuana on but the one occasion during junior high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Anthony's background, that Anthony possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Anthony, currently 26 years of age, used marijuana on one occasion approximately 13 years ago when she was 13 years of age. Such an 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, Anthony has been employed by the County as a correctional officer, a position of trust and confidence, for approximately one and one-half years. Her annual evaluations have ranged from satisfactory to outstanding, 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, Anthony 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, Signe Anthony, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th 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 7th 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, Leonard McMullen (McMullen), has been employed by the County as a correctional officer since June 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 McMullen. 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 McMullen 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 McMullen 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, McMullen filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, McMullen 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 preemployment 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 McMullen on March 8, 1985, at which time he admitted limited use of marijuana some 9 years previously. Here, the proof demonstrates that McMullen's use of marijuana was indeed limited, probably numbering little more than twice, and that his use occurred during high school, when he was 17 or 18 years of age. Since that time, McMullen has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of McMullen's background, that McMullen possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 13 years ago. The Commission's action is unwarranted. Here, McMullen, born January 7, 1958, used marijuana approximately two times, the last time being over 13 years ago when he was 17 or 18 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/ Following his graduation from high school, McMullen joined the U.S. Army, where he served honorably for three years as a military policeman. He enjoyed a secret security clearance, and his periodic drug screenings met with negative results. Following his discharge from the service, McMullen was employed for a few months by Gulf Life Insurance Company, and then by Florida Power & Light Company until he was employed by the County. To date, McMullen has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years, and was recently promoted to the rank of corporal. His annual evaluations have been 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. Overall, McMullen 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, Leonard McMullen, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hawks. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hawks had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hawks and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hawks has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that a Correctional Officer and Correctional Probation Officer have good moral character. Respondent is charged with violating Section 893.13(1) and/or 893.13(6), or any lesser included offenses. See Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.
Findings Of Fact Respondent is a certified Correctional and Correctional Probation Officer in the State of Florida. She has been employed in her field for fourteen and a half years, and lost her job as a result of the following events. On October 19, 2000, a search warrant was served at 1530 Northeast 3rd Avenue, Gainesville, Florida, a residence Respondent shared with her husband and two minor children. Upon search of Respondent's residence, law enforcement personnel discovered a marijuana "indoor grow operation," comprised of approximately 52 plants. Some plants were as much as five feet tall. Processed marijuana and marijuana being processed were also present. Law enforcement officers estimated the total street value of the marijuana confiscated to be approximately $53,000.00. This indoor-grow operation involved special apparatuses for lights, heat lamps, air conditioning, watering, fertilizing, and drying the marijuana in a utility room off the carport and special air conditioning and drying apparatuses in the back yard. Magazines on growing marijuana were located elsewhere in the house. The smell of processed marijuana permeated other parts of the house besides the utility room, which had limited access. The heat lamps in the grow room raised the temperature in the house. As a result of the search of Respondent's residence, Respondent was arrested for violating Section 893.13, Florida Statutes' prohibition against the cultivation of cannabis, the technical name for marijuana. Carol Ann Starling had worked with Respondent for approximately two and one-half years as a team member of a drug interdiction team with the Department of Corrections. Among Ms. Starling's and Respondent's responsibilities were entering correctional facilities unannounced, searching (including vacuuming the clothing of) inmates and placing suspected drugs in an assay machine. The team members then read the assay machine printouts to determine what type of drug had been discovered. Respondent and Ms. Starling specifically tested materials to locate or verify the existence of marijuana at the Dade Correctional Institution. Under these circumstances, Respondent's denial of knowledge of the marijuana grow operation in her residence is not deemed credible. Respondent was criminally charged with (1) manufacturing cannabis and (2) possession of more than 20 grams of cannabis. Each of these offenses constitutes a felony, pursuant to Section 893.13, Florida Statutes.1 Both charges were dismissed by a nolle/no information, due to "appropriate administrative action deemed sufficient in lieu of prosecution."
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
