The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida. 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 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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
The Issue The issue in this cause is whether Respondent's certification as a law enforcement officer should be revoked, or otherwise disciplined, for failure to maintain qualifications.
Findings Of Fact Respondent was employed by the Dade County public schools and worked as a guard in the school system's administration building for several years. As a public school employee, he was subjected to random drug testing. None of those tests indicated the presence of drugs in Respondent's system. Over time, persons employed as police officers by the school system's Special Investigative Unit became impressed with Respondent's character and job performance and approached him regarding becoming certified as a police officer and working with the Special Investigative Unit of the Dade County public schools. Since Respondent had always wanted to be a police officer, he attended the police academy under the sponsorship of the Dade County school system. After graduation from the police academy, Respondent was certified by Petitioner on January 4, 1988, and was issued Certificate Number 03-87-002-04. Thereafter, he was employed as a police officer with the Dade County public schools' Special Investigative Unit. In mid-April, 1988, Respondent and his then-fiancee went down to the Florida Keys with, and at the invitation of, another couple to spend the weekend in a time-share condominium, from Friday through Sunday. After lunch on Saturday, Respondent and the other couple began drinking beer. They drank beer until the time that the four vacationers went to dinner. At dinner Respondent consumed several mixed drinks. After dinner they returned to the condominium where Respondent consumed more beer. By this time Respondent was drunk. He fell asleep on the couch while his fiancee and the other couple continued talking and listening to music. At some point Respondent began waking up. Respondent's male "friend" reached into his own wallet, took out what appeared to be a cigarette, lit it, and placed it in Respondent's hand. When Respondent, who smokes cigarettes, began smoking the item placed in his hand, he began choking. When Respondent's fiancee demanded to know what was occurring, the "friend" replied that he was only playing a joke on Respondent and took the "cigarette" back from the Respondent. Respondent lay back down on the couch and again fell asleep. Due to the amount of alcohol he had consumed on Saturday, Respondent remembers going back to the time-share condominium after dinner but has no recollection of anything that happened thereafter. On the following day, the vacationers returned to Miami. No one told Respondent about the joke his "friend" had played on him. On Monday Respondent was advised that his annual employment physical, including drug screening, would take place on Tuesday. Respondent made no attempt to avoid that physical examination, but rather appeared for his physical as scheduled. On Tuesday, April 19, 1988, Respondent underwent his annual employment physical at Mt. Sinai Hospital. He was administered a drug test as part of that routine annual physical mandated by his employer. The employer had no reasonable suspension to drug test the Respondent. The subsequent gas chromatography, mass spectrometry analysis performed on Respondent's urine sample produced a reading of 27 nanograms of THC metabolites, i.e., his urine test was positive for the metabolite associated with the drug marijuana or cannabinoids. When Respondent was advised by his supervisor that his test was positive for marijuana, Respondent was shocked. He denied ever having smoked marijuana and also denied being around anyone who was smoking marijuana. Respondent took the position that his sample must have been contaminated. When advised by his supervisors that he could have the sample re- tested, Respondent declined believing that if the sample was contaminated, the results of any re-testing would be the same. Respondent's supervisors were also shocked that Respondent's test proved positive. They held him in the highest regard and testified at the final hearing that Respondent is an excellent police officer, that he is conscientious and reliable, and that he possesses honesty and integrity. One of his supervisors testified that he would let Respondent "watch my back" without hesitation in any situation -- the highest tribute a police officer can give to another police officer. In spite of his supervisors' high opinion of Respondent, Respondent was fired from his employment with the school system's police unit as a result of the positive urine test results because that was that department's policy. Respondent consistently maintained that he had never used marijuana. Believing his urine sample to have been contaminated, he hired an attorney to represent him in proving that the test results were erroneous. Respondent consistently maintained that he did not use drugs. He maintained that he could not understand why his test was positive. At some point in an informal discussion with one of his supervisors, Respondent maintained that he did not use drugs and told that supervisor the only thing unusual that had happened prior to the drug test was that he had spent the weekend in the Keys and perhaps he had been some how exposed to marijuana there. Some time after Respondent's termination from the school system, Petitioner filed formal charges to revoke his certification as a police officer. Some where around that time, his then-fiancee finally told Respondent what had happened in the Keys the night that Respondent was drunk. She told him she had been afraid to tell him about it since she had not told him earlier. She thought that if she had told him before he was fired, then he might have been able to avoid being fired. Since she had not told him then, she had not told him subsequently since she thought he would consider it her fault that he had been fired and would refuse to marry her. She finally told him because of the pain he was suffering not knowing and because of the need for honesty in their relationship. Although Respondent had no recollection of the incident described to him by her, he believed her when she told him that it had happened. Respondent then accepted responsibility for having smoked marijuana on that one occasion when he was drunk. Respondent did not knowingly and voluntarily possess marijuana and did not knowingly and voluntarily introduce that substance into his body during that weekend in the Keys. Respondent's consumption of marijuana in the Keys on that weekend was an isolated incident, and Respondent has not possessed or consumed marijuana prior to or subsequent to that incident. Although Respondent exhibited poor judgment in becoming so intoxicated that evening in the Keys, Respondent does possess good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against Respondent in this cause. DONE and ENTERED this 18th day of July, 1990, at Tallahassee, Florida. LINDA M. RIGOT, 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 18th day of July, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6484 Petitioner's proposed findings of fact numbered 1-6, 8-10, and 12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 11, and 15 have been rejected as being unnecessary to the issues involved in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not being supported by the weight of the credible evidence in this cause. The first through fourth, fifth, eighth, ninth, and fourteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been adopted either verbatim or in substance in this Recommended Order. The sixth, seventh, and tenth through thirteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Copies furnished: Mark Richard, Esquire 304 Palermo Avenue Coral Gables, Florida 33134 Elsa Lopez Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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, Wayne Martin Dean (Dean), 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 Dean.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 Dean 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 Dean 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 sold cannabis and have possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Dean filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Dean 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, Dean initially applied with the County for employment as a correctional officer in 1983. During the course of the pre- employment interview on that application, which occurred on August 30, 1983, Dean divulged that he had used marijuana so frequently as not to be able to recall the number of times he had used it, and estimated that during the course of the preceding twelve months that he had used marijuana 500 times. Regarding such use, the proof demonstrates that Dean started using marijuana while in high school and that following 1979, when he dropped out of school, that such use gradually escalated until it reached the level of abuse noted in 1983. As a consequence of such disclosure, the County denied Dean's application for employment. Following the denial of his application, Dean resolved that if he were to ever better himself, it would be necessary to disassociate himself from the use of controlled substances. As a consequence, Dean has not used any controlled substance since November 1983. In 1985, Dean reapplied with the County for employment as a correctional officer. During the course of the pre-employment interview on that application, which occurred on March 19, 1985, Dean again conceded that he had previously used marijuana so frequently as not to be able to recall the number of times, but that the last time was in November 1983. Dean also divulged that he had used cocaine approximately three times in his life, the last time being in early 1983, and that he had sold marijuana three or four times, the last time being in early 1983, from which he had made about $15. Under the provisions of rule 11B-27.0011(2), the use of a controlled substance does not conclusively establish that an applicant lacks the good moral character necessary for certification unless such use was "proximate" to his application. The Commission has not defined the term "proximate," and offered no proof at hearing as to what it considers "proximate" usage within the meaning of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state have been left with no definitive guideline from the Commission, and have adopted various standards. Pertinent to this case, Dade County has adopted a term of one year as the standard by which it gauges the "proximate" use of a controlled substance to an application for employment. Under such policy, an applicant who has refrained from such use for at least one year preceding application will not be automatically rejected as lacking good moral character. Rather, the applicant's entire background will be evaluated to determine whether he currently possess the requisite moral character for employment. 4/ Here, Dean, born November 14, 1962, used marijuana extensively for the twelve-month period preceding November 1983, last used cocaine in or about March 1983, and last sold marijuana in or about March 1983. In light of such protracted and frequent use, Dean's application for employment should have been denied as having failed to evidence the requisite good moral character necessary for employment as a correctional officer. While Dean's application for employment should have been denied in 1985, this proceeding is a de novo hearing on his application for certification, and his qualifications are, therefore, evaluated as of the date of hearing. To date, Dean has been employed by the County as a correctional officer, a position of trust and confidence, for almost four years. His annual evaluations have all 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, Dean has demonstrated that he currently possesses the requisite good moral character for certification as a correctional officer. While he did use controlled substances until his twenty-first birthday, his resolve to disassociate himself from such practice is supported by the proof. Under such circumstances, Dean's contact with controlled substances over five and one-half years ago is not persuasive proof of bad moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Wayne Martin Dean, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th 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 28th of June 1989.
The Issue The issue in this case is whether the Respondent failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.
Findings Of Fact Based on the evidence received at the formal hearing, the following facts are found: The Respondent, James L. Jackson, was certified by the Criminal Justice Standards and Training Commission as a correctional officer in 1981. At all times relevant and material to these proceedings, the Respondent was a correctional officer sergeant employed by the Broward County Sheriff's Department. In late July or early August of 1989, during the course of investigating illegal conduct by other employees of the Broward County Sheriff's Department, a Detective Dansky, then working in the Internal Affairs Office of the Broward County Sheriff's Department, was told by one of the admitted wrongdoers that he had heard that several employees of the Sheriff's Department, including the Respondent, were involved in criminal activity related to the possession, use, or distribution of controlled substances. Shortly after receiving that information, Detective Dansky contacted the Respondent and requested that he provide a statement in response to the allegation that he had been involved in illegal drug activity. On August 8, 1989, the Respondent reported to the Internal Affairs Office, where he met with Detective Dansky. After being advised of the specific allegations that had been made against him, the Respondent gave a statement to Detective Dansky. The Respondent's statement consisted of a denial of all allegations of misconduct. After taking the Respondent's statement, Detective Dansky offered the Respondent the option of furnishing a urine sample for drug testing in order to resolve the issue. The Respondent voluntarily agreed to provide a urine sample. Detective Dansky initiated the drug testing process by asking the Respondent if he had been using any drugs that might show up on the test. The Respondent stated that he had not used any drugs. Shortly thereafter, the Respondent provided a urine sample. The sample was collected under circumstances which verified that the sample was actually provided by the Respondent and the sample was promptly sealed in a manner which made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was also given a unique identifying number. The urine sample was properly protected until it was turned over to the forensic laboratory, where it was received in good condition with no evidence of tampering. At the laboratory the Respondent's urine sample was kept in a secure manner during the testing process. At the laboratory, adequate procedures were used to ensure that the Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the sample had not been tampered with. A portion of the Respondent's urine sample was submitted to an immunoassay screening analysis. The screen analysis indicated the presumptive presence of benzoyleconine, a unique metabolite of cocaine. Following the screen analysis, a second portion of the Respondent's urine sample was submitted for analysis by means of gas chromatography/mass spectrometry, which is the most reliable and accurate method for confirmatory drug testing. The gas chromatography/mass spectrometry analysis of the Respondent's urine sample was positive for the presence of benzoyleconine in a concentration of 4903.5 nanograms per milliliter. That concentration of benzoyleconine is consistent with, and indicative of, the Respondent's voluntary ingestion of cocaine within a time frame of approximately one to four days prior to the collection of the urine sample. The Respondent's positive drug test results were received by the Internal Affairs Office of the Broward County Sheriff's Department on August 15, 1989. On that date, Detective Dansky again met with the Respondent. Detective Dansky told the Respondent that the Respondent's urine sample had been confirmed positive for cocaine. The Respondent told Detective Dansky that he does not do things like that and that it could not be him. 1/ As a result of the positive drug test results, the Respondent was suspended and ultimately terminated from his position as a correctional officer sergeant with the Broward County Sheriff's Department. At the time of his suspension, the Respondent had worked for the Broward County Sheriff's Department for approximately nine and a half years. Prior to August of 1989, the Respondent had an excellent work record with the Broward County Sheriff's Department.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent has failed to maintain good moral character and revoking the Respondent's certification as a correctional officer. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody Control Form and on the label affixed to each specimen bottle was correct. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of cannabinoid. It did not change the positive result; it merely quantified it. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). Respondent's certification be revoked. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 27th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie B. Ward 1043 Booker Street Sebring, Florida 33870 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 The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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, Johnny Johnson (Johnson), has been employed by the County as a correctional officer for approximately three 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 Johnson. 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 Johnson 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. 3/ By letter dated November 1, 1988, the Commission notified Johnson 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, Johnson filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Johnson 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 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 Johnson on May 14, 1985, at which time he admitted that he had used marijuana on two occasions. At that time he estimated the date he last used marijuana to have been 1972; however, the proof demonstrates that he misapprehended the date of last usage, and that the proper date was December 1970. His last use consisted of "passing a joint" ,with some college friends when he was 23 years of age. Prior to that, he had used marijuana once while a solider in Vietnam. Notwithstanding the County's conclusion, based on its investigation and analysis of Johnson's background, that Johnson possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 18 years ago. The Commission's action is unwarranted. Here, Johnson used marijuana two times, the last time being over 18 years ago when he was 23 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. Currently, Johnson has been employed by the County as a corrections officer, a position of trust and confidence, for approximately 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. Prior to his employment as a corrections officer, Johnson was employed as an administrative assistant by Dade County, Department of County and Economic Development, for two and one-half years. He has been certified as a substitute teacher in Dade County since 1982, and has been a member of the Air Force Reserve for three years, with several letters of commendation Overall, Johnson 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, Johnny Johnson, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th 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 15th day of June, 1989.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent was certified by the Commission on March 1, 1983, and was issued certificate number 06-83-502-01. Prior to January, 1990, the Respondent was employed as a correction officer at Tomoka Correctional Institution (TCI). During the course of his training and experience as a correction officer Respondent has become familiar with cannabis and is able to recognize the controlled substance both by sight and smell. Respondent has confiscated cannabis from inmates at TCI at least one hundred times. On January 17, 1990, Respondent went to the Cool Breeze Bar in Seminole County, Florida. On that date, the bar was under surveillance by the narcotics and vice unit as it was thought to be a known gathering place for individuals selling illegal narcotics. As part of his surveillance of the bar, Deputy Shea observed a man later known to be the Respondent passed out in an automobile. The automobile belonged to Respondent and he was its only occupant. When Deputy Shea approached the vehicle he observed what appeared to be a marijuana pipe on the dash of the car at approximately arm's length from the Respondent. On further search Deputy Shea retrieved an envelope containing a substance which he later field tested. That substance field tested positive for cannabis. Deputy Shea's investigation was initiated after he opened the car door and smelled an aroma which he identified with burnt cannabis. After the Respondent was aroused from his sleep, Deputy Shea patted him down and placed him under arrest. The Respondent was disoriented and remained so during the time Deputy Shea searched the vehicle. Respondent had been drinking heavily. Deputy Shea marked the seized items for identification and later sent them to the sheriff's laboratory for additional testing. That testing was performed by Ms. Alt. Ms. Alt weighed and tested the items seized from Respondent's vehicle and determined that the plant material was cannabis and weighed less than 20 grams. Respondent knew on the evening of January 17, 1990, that cannabis had been smoked in his car but claimed he was unaware of the illegal items which others had allegedly left behind. Respondent claimed his cousins had smoked the marijuana in his car while he was in the bar and that he had gone to the vehicle later to sleep off his intoxication. On March 19, 1990, the Respondent entered a plea of nolo contendere to the charge of possession of less than 20 grams of cannabis and was adjudicated guilty.
Recommendation Based on the foregoing, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. RECOMMENDED this 12th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3589 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: 1. Paragraphs 1 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Edward Chavers 113 Scott Drive Sanford, Florida 32771 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
