09-003530PL Criminal Justice Standards And Training Commission vs. Ben C. Cramer Status: Closed Recommended Order on Thursday, October 22, 2009.

Summary: Respondent failed to maintain good moral character as defined by rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-3530PL

)

BEN C. CRAMER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on August 28, 2009, by

Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Blountstown, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Sharon Saxler, Esquire

Department of Law Enforcement

Office of the General Counsel

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Ben C. Cramer, pro se

STATEMENT OF THE ISSUE

Whether the Respondent committed the offenses alleged in the

Administrative Complaint and, if so, what is the appropriate

penalty?

PRELIMINARY STATEMENT

On or about March 17, 2009, the Criminal Justice Standards

and Training Commission (Commission) filed an Administrative

Complaint against Respondent. The Administrative Complaint

alleged that Respondent failed to maintain the qualifications

established in Section 943.13(7), Florida Statutes, which require

that a Correctional Officer in the State of Florida have good

moral character.

Specifically, the Administrative Complaint alleged that

Respondent violated Sections 893.13(6)(b), and 893.147(1),

Florida Statutes, or any lesser included offense; Section

943.1395(7), Florida Statutes; and Florida Administrative Code

Rule 11B-27.0011(4)(b), in that Respondent has failed to maintain

the qualifications established in Section 943.13(7), Florida

Statutes, which requires that a correctional officer in the State

of Florida be of good moral character.

Respondent disputed the allegations in the Administrative

Complaint and timely filed a request for a formal administrative

hearing to be conducted pursuant to Sections 120.569 and

120.57(1), Florida Statutes. The case was referred to the

Division of Administrative Hearings on or about July 2, 2009. A

formal hearing was set for August 28, 2009.

At the commencement of the hearing, Petitioner made an ore

tenus motion to relinquish jurisdiction, which was denied.

At hearing, Petitioner presented the testimony of two

witnesses: Philip Spaziante and William E. Dalton. Petitioner's

Exhibit numbered 1 was admitted into evidence. Respondent

testified on his own behalf but did not offer any exhibits.

A Transcript, consisting of one volume, was filed on

October 1, 2009. Petitioner timely filed a Proposed Recommended

Order which was considered in the preparation of this Recommended

Order. Respondent did not file any post-hearing submission. All

references are to the 2008 codification of Florida Statutes,

unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was

certified as a correctional officer, having been issued

Correctional Certificate Number 276769.

2. On or about July 3, 2008, Respondent was driving his

vehicle on State Road 20 in Calhoun County.

ooper Philip Spaziante of the Florida Highway Patrol

observed Respondent speeding and conducted a traffic stop of

Respondent’s vehicle.

4. After Respondent pulled to the side of the road and

stopped, Trooper Spaziante explained to Respondent why he had

stopped him. As he spoke to Respondent, he noticed that

Respondent appeared to be exceptionally nervous.

5. Respondent told Trooper Spaziante that he was on his way

to Port St. Joe to spend the weekend at the beach.

ooper Spaziante then asked Respondent if he would

consent to a search of his vehicle. Respondent consented to the

search.

ooper Spaziante found a purple cloth “Crown Royal” bag

in the driver’s side door of Respondent’s vehicleooper

Spaziante found a small quantity, less than 20 grams, of cannabis

(marijuana) inside a Skoal (chewing tobacco) container which was

inside the Crown Royal bag.

ooper Spaziante is trained in the recognition of the

smell of burnt cannabis. During his nine years as a State

Trooper, he has encountered cannabis many times, during traffic

stops in particular. Based upon his experience, Trooper

Spaziante was able to identify the substance in the Skoal can as

cannabis.

ooper Spaziante then placed Respondent under arrest

for possession of a controlled substance.

10. After finding the marijuana, Trooper Spaziante

contacted Deputy William Dalton of the Calhoun County Sheriff’s

Office and requested that he come to the scene and assist.

11. After Deputy Dalton arrived, the two officers continued

the search of Respondent’s vehicle.

12. Deputy Dalton is a police canine handler. Deputy

Dalton is also trained in recognition of cannabis and cannabis

paraphernalia. He is the handler for Gina, a K-9 dog certified

in narcotics investigation by the American Canine Police

Association. Deputy Dalton deployed Gina to conduct an exterior

“sniff” of Respondent’s vehicle.

13. Gina "alerted" as a result of her sniff of Respondent’s

vehicle, indicating that narcotics were in the vehicle.

14. Deputy Dalton then continued to search Respondent’s

vehicle.

15. The officers found a marijuana “blunt,” which is a

cigar with some of the tobacco removed and replaced with

marijuana.

ooper Spaziante observed some loose tobacco that

appeared to have been removed from the cigar.

17. The officers found a duffle bag in the back seat of the

vehicle. The Respondent told the officers that the bag was his

and that it contained clothing and personal items for his trip to

Port St. Joe.

18. Deputy Dalton took the duffle bag out of the vehicle

where Gina “alerted” as a result of her sniff of Respondent’s

duffle bag.

19. Deputy Dalton then searched the duffle bag. Inside the

duffle bag was a small smoking pipe commonly used to smoke

marijuana. Deputy Dalton also observed marijuana residue in the

bowl of the pipe.

20. Respondent stated that he had forgotten that the pipe

was in the duffle, and that it had been in there a long time.

21. Respondent was arrested and charged with possession of

less than 20 grams of marijuana and possession of drug

paraphernalia.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2009).

23. The Criminal Justice Standards and Training Commission

has jurisdiction over the certification of correctional officers

pursuant to Chapter 943, Florida Statutes.

24. The Department has the burden of proving by clear and

convincing evidence the allegations in the Administrative

Complaint. See Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

25. The Administrative Complaint charged Respondent with

violating Section 943.1395(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.004(4). Section 943.1395,

Florida Statutes, reads, in pertinent part:

(6) The Commission shall revoke the

certification of any officer who is not in

compliance with the provisions of Section

943.13(4). . .

* * *

(7) Upon a finding by the commission that a

certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the Commission may enter an order

imposing one or more of the following

penalties;

(a) Revocation of certification.

(b) Suspension of certification for a period

of not to exceed 2 years.

(c) Placement on a probationary status for a

period not to exceed 2 years, subject to

terms and conditions imposed by the

commission. . . .

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

(8) The commission shall, by rule, adopt

disciplinary guidelines and procedures to

administer the penalties provided in

subsections (6) and (7). The commission may,

by rule, prescribe penalties for certain

offenses. The commission shall, by rule, set

forth aggravating and mitigating

circumstances to be considered when imposing

the penalties provided in subsection (7).

26. Section 943.13, Florida Statutes, establishes the

minimum qualifications for certification of correctional officers

in Florida, and reads in pertinent part:

(7) Have a good moral character as

determined by a background investigation

under procedures established by the

Commission.

27. Florida Administrative Code Rule 11B-27.0011(4) defines

good moral character as follows:

11B-27.0011 Moral Character.

* * *

(4) For the purposes of the Criminal Justice

Standards and Training Commission’s

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

* * *

(b) Except as otherwise provided in Section

943.13(4), F.S., a guilty plea or a verdict

of guilty after a criminal trial for any of

the following misdemeanor or criminal

offenses, notwithstanding any suspension of

sentence or withholding of adjudication, or

the perpetration by an officer of an act that

would constitute any of the following

misdemeanor or criminal offenses whether

criminally prosecuted or not :

1. Sections . . . 893.13 . . ., F.S.

(emphasis supplied)

28. Florida Administrative Code Rule 11B-27.005 reads in

pertinent part:

11B-27.005 Revocation or Disciplinary

Actions; Disciplinary Guidelines; Range of

Penalties; Aggravating and

Mitigating Circumstances.

* * *

(5) When the Commission finds that a

certified officer has committed an act that

violates Section 943.13(7), F.S., the

Commission shall issue a final order imposing

penalties within the ranges recommended in

the following disciplinary guidelines:

* * *

(b) For the perpetration by the officer of

an act that would constitute any of the

misdemeanor offenses, pursuant to paragraph

11B-27.0011(4)(b), F.A.C., but where there

was not a violation of Section 943.13(4),

F.S., the action of the Commission shall be

to impose a penalty ranging from probation of

certification to suspension of certification.

Specific violations and penalties that shall

be imposed, absent aggravating or mitigating

circumstances, include the following:

* * *

Recommended

Violation Penalty Range

11. Possess or delivery

without consideration, and

not more than 20 grams of

Cannabis (893.13, F.S.) Revocation

29. Petitioner has met its burden to support the charge in

the Administrative Complaint that Respondent violated Section

943.1395(7), Florida Statutes, in that he failed to maintain good

moral character as contemplated by Florida Administrative Code

Rule 11B-27.0011(4)(b).

30. Petitioner recommends revocation of Respondent's

certificate. Pursuant to Section 943.1395(7)(d), Florida

Statutes, the undersigned must adhere to the disciplinary

guidelines set forth in Section 943.1395(7) and the rules adopted

by the Commission. Pursuant to Florida Administrative Code Rule

11B-27.005(5)(b)11., revocation is the appropriate penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Criminal Justice Standards Commission enter a final

order revoking the corrections certificate of Respondent, Ben C.

Cramer.

DONE AND ENTERED this 22nd day of October, 2009, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October, 2009.

COPIES FURNISHED :

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Ben C. Cramer

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.