13-000821PL Criminal Justice Standards And Training Commission vs. Charles J. Snow Status: Closed Recommended Order on Friday, August 2, 2013.

Summary: Petitioner established Respondent failed to maintain good moral character by violating section 316.193; however, Petitioner did not establish Respondent violated section 893.13(6)(a).

Case No. 13-0821PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND

TRAINING COMMISSION,

RECOMMENDED ORDER

Petitioner,

vs.

CHARLES J. SNOW,

Respondent.

/

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on June 13,

2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Jeffrey Phillip Dambly, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Maja Sha-ron Holman, Esquire

John James, Esquire

Holman Law Group

Suite 303 7880 West Oakland Park Boulevard

Sunrise, Florida 33351

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent failed to

maintain good moral character in violation of sections

943.1395(7) and 943.13(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4)(a) and (b), by

unlawfully possessing a controlled substance, cocaine, and by

driving or being in actual physical control of a vehicle while

under the influence of alcoholic beverages, when effected to the

extent that his normal faculties were impaired or with a blood

or breath alcohol level of .08 or above, and if so, the penalty

that should be imposed.

PRELIMINARY STATEMENT

On or about September 11, 2012, Petitioner, Criminal

Justice Standards and Training Commission, issued an

Administrative Complaint (Complaint) charging Respondent with

violations of sections 943.1395(7) and 943.13(7), Florida

Statutes, as well as violations of Florida Administrative Code

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

Respondent timely filed an election of rights disputing the

material facts alleged in the Complaint and requesting an

administrative hearing.

The matter was referred to the Division of Administrative

Hearings (DOAH) on March 8, 2013, and assigned to Administrative

Law Judge John G. Van Laningham.

The final hearing initially was set for May 15, 2013.

Pursuant to the parties' Joint Motion for Continuance, filed on

May 3, 2013, the final hearing was rescheduled for June 7, 2013.

Thereafter, Respondent filed another Motion for Continuance, and

same was granted, resulting in the final hearing being

rescheduled to June 13, 2013. On June 7, 2013, this case was

transferred to the undersigned for all further proceedings.

On June 13, 2013, the parties entered into a Joint

Stipulation, wherein the parties stipulated to certain facts

contained therein. Those facts have been incorporated in this

Recommended Order.

Both parties were represented by counsel at the hearing,

which went forward as planned. Petitioner presented the

testimony of Junior Vijil, Louis Fata, Richmond James, Daniel

Salerno, Rodgerick Everett, and Karen Wiggins. Respondent

testified on his own behalf.

The Transcript of the final hearing was filed with DOAH on

July 5, 2013. The parties timely filed Proposed Recommended

Orders, and same were considered in preparing this Recommended

Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FINDINGS OF FACT

1. Petitioner, Criminal Justice Standards and Training

Commission, is the state agency charged with the responsibility

of certifying correctional officers and taking disciplinary

action against them for failing to maintain good moral character

as required by section 943.13(7). § 943.1395, Fla. Stat.

2. At all times relevant, Respondent was a certified

Florida Correctional Officer, having been issued certificate

number 279704.

3. On October 14, 2010, Respondent was operating or in

actual physical control of his motor vehicle in South Miami,

Florida. South Miami Police Officer Junior Vijil observed

Respondent's vehicle stopped in the middle of the intersection

of 58th Court and Southwest 73rd Street. After observing

Respondent's driving pattern, Officer Vijil initiated a traffic

stop.

4. Officer Vijil approached Respondent's vehicle and made

initial contact with Respondent. Officer Vijil observed certain

indicators of potential impairment and requested Respondent to

step out of the vehicle. Respondent complied with Officer

Vijil's request.

5. At the time of the traffic stop, Respondent had a

passenger in the front seat of his vehicle. When Respondent

exited the vehicle, at Officer Vijil's request, the passenger

remained seated in the vehicle. Officer Vijil called for backup

officers and awaited their arrival prior to performing field

sobriety exercises with Respondent.

6. The passenger remained seated, unsupervised, in

Respondent's vehicle for several minutes until additional law

enforcement personnel arrived. When South Miami Police Officer

Louis Fata arrived on the scene, Officer Vijil initiated field

sobriety exercises.

7. At the conclusion of the field sobriety exercises,

Officer Vijil did not immediately arrest Respondent, but rather,

requested Respondent provide consent to search the vehicle.

Respondent consented to the search.

8. Officer Vijil began the search of the vehicle by first

looking in the front interior compartment. He observed, in

plain sight, a small, dark, plastic baggie in the center

console. The center console's lid was absent. Although the

baggie was dark in color, Officer Vijil could observe a white

powdery substance that he believed was cocaine.

9. After locating the suspicious substance, Officer Vijil

removed the same from Respondent's vehicle and secured it in his

patrol vehicle. A field test of the white substance was

performed by Officer Vijil and Officer Fata, which resulted in a

presumptive positive result for cocaine.

10. Officer Vigil interviewed Respondent and the passenger

concerning their knowledge of the suspected cocaine. After both

individuals denied any knowledge of the substance, Officer Vijil

arrested Respondent for possession of a controlled substance.

11. Karen Wiggins, a criminalist at the Miami-Dade Police

Department Forensic Service Bureau, performed a series of tests

on the substance at issue, and credibly testified that the

suspected substance was cocaine.

12. Pursuant to the Joint Stipulation, the parties

stipulate that, on October 14, 2010, Respondent did unlawfully

drive or was in actual physical control of a vehicle while under

the influence of alcoholic beverages, when effected to the

extent that his normal faculties were impaired; or with a blood

or breath alcohol level of .08 or above.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and subject

matter of this proceeding, pursuant to section 120.57(1),

Florida Statutes.

14. Petitioner seeks to take penal disciplinary action

against Respondent's correctional officer certification for

alleged violations of sections 893.13(6), 316.193, or any lesser

included offenses, 943.1395(7), 943.13(7), and Florida

Administrative Code Rule 11B-27.0011(4)(a) and (b). Therefore,

Petitioner must prove the allegations in the Complaint by clear

and convincing evidence. Dep't of Banking & Fin., Div. of Secs.

& Investor Prot. v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987). Clear and convincing evidence requires that:

[t]he 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.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

15. Section 943.13(7) establishes the minimum

qualifications for certification of correctional officers in the

State of Florida. Among those qualifications is the requirement

that a correctional officer possess "good moral character," as

determined by a background investigation under procedures

established by Petitioner. § 943.13(7), Fla. Stat.

16. Section 943.1395(7) provides that the definition of

good moral character shall be adopted by rule and be established

as a statewide standard. Petitioner has adopted rule 11B-

27.0011, which provides in pertinent part:

(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 316.193, . . . 893.13, . . . .

17. Here, the Complaint charges that Respondent

(1) unlawfully drove or was in actual physical control of a

vehicle while under the influence of alcholic beverages, when

effected to the extent that his normal faculties were impaired;

or with a blood breath alcohol level of .08 or above, in

violation of section 316.193; and (2) unlawfully possessed a

controlled subtance, cocaine, in violation of section 893.13(6).

18. As noted above, Respondent has conceded in the Joint

Stipulation that, on October 14, 2010, he violated section

316.193. As such, Respondent is guilty of failing to maintain

good moral character, pursuant to rule 11B-27.0011.

19. Turning to the possession of controlled substances

allegation, section 893.13(6)(a) provides as follows:

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. Any person who violates this

provision commits a felony of the third

degree, punishable as provided in

s. 775.082 , s. 775.083 , or s. 775.084 .

20. If Respondent were shown, by clear and convincing

evidence, to have actually or constructively possessed a

controlled substance unlawfully in violation of section

893.13(6)(a), he would be guilty of failing to maintain good

moral character, pursuant to rule 11B-27.0011.

21. Petitioner concedes that Respondent did not actually

possess a controlled substance. Accordingly, the question is

whether Petitioner has shown, by clear and convincing evidence,

that Respondent constructively possessed a controlled substance.

22. Constructive possession of a controlled substance

exists when the accused has knowledge of the presence of a

controlled substance on the premises and the ability to maintain

dominion and control over it. Brown v. State , 428 So. 2d 250,

252 (Fla. 1983); Evans v. State , 32 So. 3d 188, 189 (Fla. 1st

DCA 2010); Hall v. State , 382 So. 2d 742 (Fla. 2nd DCA 1980).

23. If, as here, the vehicle where the substance is found

is jointly occupied, the accused's knowledge and dominion and

control will not be inferred from the mere ownership of the

vehicle or proximity to the contraband, but must be established

by independent proof. See Brown , 428 So. 2d at 252; see also

Evans , 32 So. 3d at 189; Hively v. State , 336 So. 2d 127 (Fla.

4th DCA 1976). 1 /

24. The requisite "independent proof" has been described

as follows:

Such proof may consist either of evidence

establishing that the accused had actual

knowledge of the presence of the contraband

in the place where it is found, or

circumstantial evidence from which a jury

might properly infer that the accused had

knowledge of the presence of the contraband.

Robinson v. State , 936 So. 2d 1164, 1167 (Fla. 1st DCA

2006)(quoting Wale v. State , 397 So. 2d 738, 740 (Fla. 4th DCA

1981)). See also Brown v. State , 8 So. 3d 1187, 1189 (Fla. 4th

DCA 2009)("[t]his independent proof may consist of 'evidence of

incriminating statements or actions, or other circumstances from

which a jury might lawfully infer the defendant's actual

knowledge of the presence of contraband.'").

25. Petitioner established by clear and convincing

evidence that, on October 4, 2010, Respondent was the owner of

the subject vehicle; a consensual search of Respondent's vehicle

on that date revealed a small plastic bag of a suspicious

substance in plain view in the center console; and that a sample

of the substance was presumptively determined, and subsequently

confirmed by scientific testing, to be cocaine.

26. Petitioner, failed, however, to establish by clear and

convincing evidence that Respondent had knowledge of the

presence of the cocaine and the ability to maintain dominion and

control over it. Respondent testified credibly that he had no

knowledge of the cocaine or how it came to be located in his

vehicle. 2 / It is undisputed that after the initial stop,

Respondent exited the vehicle, and the passenger remained inside

the vehicle, unsupervised, for several minutes.

27. As noted above, Respondent's knowledge and dominion

and control cannot be established by his mere ownership of the

vehicle and former proximity to where the substance was later

found. The undersigned concludes that Petitioner has not shown,

by clear and convincing evidence, that Respondent constructively

possessed a controlled substance unlawfully in violation of

section 893.13(6)(a), such that he would be guilty of failing to

maintain good moral character, pursuant to rule 11B-27.0011.

28. Subsection 943.1395(7) prescribes the penalties that

may be imposed by Petitioner in a case of this nature:

(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.

29. The parties have stipulated that Respondent violated

section 316.193, and that an appropriate penalty would include

six months of probation, with the requirement that Commission-

approved substance abuse counseling be completed prior to the

end of the probationary period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that:

The Criminal Justice Standards and Training Commission

enter a final order finding Respondent guilty of violating

sections 943.1395(7) and 943.13(7), Florida Statutes, and

Florida Administrative Code Rule 11B-27.0011(4)(b), by his

violation of section 316.193, Florida Statutes. It is further

recommended that Respondent be placed on probation for a period

of six months, with the requirement that Commission-approved

substance abuse counseling be completed prior to the end of the

probationary period.

It is further recommended that the Commission enter an

final order dismissing the allegation that Respondent unlawfully

constructively possessed a controlled substance in violation of

section 893.13(6)(a), Florida Statutes.

DONE AND ENTERED this 2nd day of August, 2013, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 2nd day of August, 2013.

ENDNOTES

1/ The undersigned recognizes that the constructive possession

cases cited herein are criminal cases in which a more stringent

standard of proof (beyond a reasonable doubt) is applicable.

The undersigned has applied the less stringent "clear and

convincing evidence" standard in the analysis contained herein.

2/ Evidentiary matters such as credibility of witnesses and

resolution of conflicting evidence are the prerogative of the

undersigned as finder of fact in administrative proceedings.

Heifetz v. Dep't of Bus. Reg. , 475 So. 2d 1277, 1281-82 (Fla.

1st DCA 1985).

COPIES FURNISHED :

Jeffrey Phillip Dambly, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Maja Sha-ron Holman, Esquire

Holman Law Group

Suite 303

7880 West Oakland Park Boulevard

Sunrise, Florida 33351

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

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.