09-004602PL Criminal Justice Standards And Training Commission vs. Harry J. Donaldson Status: Closed Recommended Order on Thursday, December 31, 2009.

Summary: Petitioner demonstrated that Respondent was in possession of less than 20 grams of marijuana and a metal grinder used as drug paraphernalia.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) )

AND TRAINING COMMISSION, )

Petitioner, )

)

vs. HARRY J. DONALDSON, ) Case No. 09-4602PL

)

Respondent. )

)

)

)

RECOMMENDED ORDER

On November 12, 2009, a duly-noticed hearing was held in

Starke, Florida, before Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Harry J. Donaldson, pro se

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent is guilty

of violating Sections 943.1395(7) and 943.13(7), Florida Statutes

(2007), and Florida Administrative Code Rule 11B-27.0011, as

alleged in the Administrative Complaint, and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On June 23, 2009, the Criminal Justice Standards and

Training Commission (Petitioner or Commission) filed an

Administrative Complaint against Respondent, alleging that

Respondent had violated Sections 943.1395(7) and 943.13(7),

Florida Statutes (2007), and Florida Administrative Code Rule

11B-27.0011, by possessing not more than 20 grams of cannabis and

drug paraphernalia. Respondent disputed the allegations in the

Administrative Complaint and requested a hearing pursuant to

Section 120.57(1), Florida Statutes (2009). On August 20, 2009,

the case was referred to the Division of Administrative Hearings

for assignment of an administrative law judge.

On September 8, 2009, a Notice of Hearing was issued,

scheduling the final hearing to be conducted on November 12,

2009, and the case proceeded as scheduled. At hearing,

Petitioner presented the testimony of Officer Paul King.

Respondent testified on his own behalf. Neither party submitted

exhibits.

The proceedings were recorded and the Transcript was filed

with the Division on December 1, 2009. Petitioner filed its

Proposed Recommended Order on December 7, 2009, which has been

carefully considered in the preparation of this Recommended

Order. To date, no post-hearing submission has been received

from Respondent.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent

was certified by Petitioner as a correctional officer, and issued

certificate number 183026.

2. On June 25, 2008, Respondent was a passenger in a

vehicle that he owned but that was driven by his son, James

Donaldson.

3. The car was pulled over by Officer Paul King of the

Starke Police Department because its brake lights were not

working. Officer King explained to the driver the reason for the

stop.

4. Officer King smelled what he recognized to be burnt

cannabis coming from inside the vehicle. He asked both occupants

if they had any marijuana in the vehicle, and both men denied

having any.

5. Officer King asked James Donaldson to exit the vehicle.

Upon searching his person, Officer King found in a pocket of

James' trousers a plastic bag containing less than 20 grams of

cannabis. He also seized a package of cigarette rolling papers,

of a type commonly used to roll marijuana, from the seat of the

car. James Donaldson identified the rolling papers as belonging

to him.

6. At that point, Officer King arrested James Donaldson,

and placed him in handcuffs.

7. Officer King then asked Respondent to exit the car, and

asked him if he had anything on his person. Respondent stated

that he had marijuana. A search revealed that in his right-front

shorts pocket, there was a silver metal grinder with marijuana

residue. In Respondent's left-front shorts pocket, Officer King

found a clear plastic baggy containing a green leafy substance,

less than 20 grams, along with a package of rolling papers.

8. The metal grinder was of type commonly used to prepare

cannabis for smoking, and was approximately the size of a chewing

tobacco can.

9. Officer King used a field test kit to test the specimens

taken from both men. Both tested positive for cannabis. Officer

King then arrested Respondent for possession of cannabis and

possession of drug paraphernalia.

10. Respondent did not deny having the marijuana or the

metal grinder on his person. However, he claimed that both were

hidden within a pack of cigarettes that belonged to his son, but

that he had picked up the pack and put it in his shirt front

pocket at his son's request. He claimed that he did not smell

the marijuana because he has difficulty smelling anything.

11. Respondent's claim is not credible. Even assuming that

the metal grinder and the baggie of marijuana would fit in a

cigarette package, it is not believable that Respondent would

pick up a cigarette package containing such an implement and not

realize the cigarette package contained something other than

cigarettes. Officer King's testimony that he did not confiscate

a cigarette package, on the other hand, was clear,

straightforward and candid.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

13. This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to discipline Respondent's

certification as a correctional officer. Petitioner bears the

burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Sterne & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

14. Clear and convincing evidence:

[R]equires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

15. The Administrative Complaint contains the following

factual allegations:

2. (a) On or about June 25, 2008, the

Respondent, Harry J. Donaldson, did

unlawfully possess not more than 20 grams

of cannabis.

(b) On or about June 25, 2008, the

Respondent, Harry J. Donaldson, did

unlawfully use, or possess with intent to

use, drug paraphernalia; to wit: a metal

grinder containing cannabis residue and a

clear plastic baggie containing cannabis, to

inject, ingest, inhale, or otherwise

introduce into the human body a controlled

substance in violation of Florida Statutes

Chapter 893.

3. The actions of Respondent did violate the

provisions of Section 893.13(6); 893.147(1)

or any lesser included offenses . . . .

16. Section 943.1395(7), Florida Statutes (2007), provides:

(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 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. Upon the violation

of such terms and conditions, the

commission may revoke certification or

impose additional penalties as

enumerated in this subsection.

(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)(a) 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).

(b)1. The disciplinary guidelines and

prescribed penalties must be based upon

the severity of specific offenses. The

guidelines must provide reasonable and

meaningful notice to officers and to the

public of penalties that may be imposed

for prohibited conduct. The penalties

must be consistently applied by the

commission.

17. The Commission has defined "good moral character" for

purposes of Section 943.1395(7), Florida Statutes, in Florida

Administrative Code Rule 11B-27.0011(4), which provides:

(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:

(a) The perpetration by an officer of an act

that would constitute any felony offense,

whether criminally prosecuted or not.

(b) Except as otherwise provided in Section

943.13(4), F.S., a plea of guilty 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 . . . 893.147 . . .

18. Section 893.13(6), Florida Statutes (2007), provides in

pertinent part:

(6)(a) It is unlawful for any person to be

in actual or constructive possession of a

controlled substance unless such controlled

substance was lawfully obtained from a

practitioner or pursuant to a valid

prescription or order of a practitioner while

acting in the course of his or her

professional practice or to be in actual or

constructive possession of a controlled

substance except as otherwise authorized by

this chapter. . . .

(b) If the offense is the possession of not

more than 20 grams of cannabis, as defined in

this chapter, the person commits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083. For

the purposes of this subsection, "cannabis"

does not include the resin extracted from the

plants of the genus Cannabis, or any compound

manufacture, salt, derivative, mixture, or

preparation of such resin.

19. Section 893.147(1), Florida Statutes (2007), provides

in pertinent part:

(1) USE OR POSSESSION OF DRUG

PARAPHERNALIA.--It is unlawful for any person

to use, or to possess with intent to use,

drug paraphernalia:

(a) To plant, propagate, cultivate, grow,

harvest, manufacture, compound, convert,

produce, process, prepare, test, analyze,

pack, repack, store, contain, or conceal a

controlled substance in violation of this

chapter; or

(b) To inject, ingest, inhale, or otherwise

introduce into the human body a controlled

substance in violation of this chapter.

20. Petitioner has proven by clear and convincing evidence

that Respondent committed the violations alleged in the

Administrative Complaint. Respondent's claim that they did not

know that the substances were cannabis and drug paraphernalia

until confiscated is rejected.

21. The Commission has established disciplinary guidelines

for the imposition of penalties for failure to maintain good

moral character. For possession of less than 20 grams of

cannabis, the guidelines provide for revocation of certification.

Fla. Admin. Code R. 11B-27.005(5)(b)11. Respondent did not

present any evidence of mitigating circumstances as described in

the disciplinary guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Commission enter a Final Order finding

that Respondent has violated Section 943.13(7), Florida Statutes

(2007), and revoking his certification.

DONE AND ENTERED this 31st day of December, 2009, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 2009.

COPIES FURNISHED: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 Harry J. Donaldson

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.