00-003478PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Erlene R. Stewart Status: Closed Recommended Order on Monday, April 2, 2001.

Summary: Petitioner established that Respondent committed felony and misdemeanor by constructive possession of illegal drugs in her vehicle on prison property. Failure to maintain good character; extenuating circumstances mitigates suspension, not revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-3478PL

)

ERLENE R. STEWART, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

in Gainesville, Florida on December 11, 2000, before P. Michael

Ruff, duly designated Administrative Law Judge of the Division

of Administrative Hearings. The following appearances were

entered:

APPEARANCES

For Petitioner : Gabrielle Taylor, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respon dent : Erlene Stewart, pro se

Route 1, Box 52

Sanderson, Florida 32087

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Respondent committed the violations charged in the

Administrative Complaint, involving possessing and introducing

onto the grounds of a state correctional institution, certain

controlled substances and, if so, what if any penalty is

warranted.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative

Complaint against the above-named Respondent on November 19,

1999, charging, in essence, that the Respondent unlawfully

introduced certain controlled substances onto the grounds of the

Union Correctional Institution, a state prison. The Respondent

elected to formally dispute the allegations in the Complaint,

and requested an administrative hearing pursuant to Chapter 120,

Florida Statutes. The case was forwarded to the Division of

Administrative Hearings for formal proceeding on August 18,

2000. The cause was assigned to Administrative Law Judge

Charles Adams and, shortly prior to hearing was re-assigned to

P. Michael Ruff, Administrative Law Judge.

The cause came on for hearing as noticed. The Petitioner

(Commission) presented the testimony of witnesses

Ms. Oda Somera, Sergeant Kevin Box, Sergeant Perry Mobley,

Inspector Mike Bailey, Deputy Henry Tomlinson, Sergeant Dale

Pfalzgraf, and Inspector Timmy Yaw. The Respondent testified in

her own behalf but presented no other witnesses. Additionally,

the Petitioner's Composite Exhibit three, as well as Exhibits

five and six were admitted into evidence, and the Petitioner's

Exhibits one, two and four were stipulated into evidence. In

that connection, the parties stipulated that the Respondent was

certified by the Commission on May 9, 1994, and was issued

Correctional Certificate Number 143764; that the black 1993

Pontiac, Grand Am automobile, the subject of the search at issue

in this case, was registered at all times pertinent hereto to

the Respondent and remains registered to the Respondent.

Upon completion of the hearing, a Transcript of the

proceedings was ordered by the Petitioner Agency. The

Transcript was filed with the Division of Administrative

Hearings and the parties were accorded the right to file

Proposed Recommended Orders. The Proposed Recommended Orders

were timely filed and have been considered in the rendition of

this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Erlene Stewart, has been employed as a

correctional officer at Union Correctional Institution (UCI).

She was so employed on February 1, 1999, and had been employed

there for almost five years at that time.

2. The Respondent was working on Saturday, January 30,

1999. On that day, officers at UCI examined employees coming to

work by conducting an "Ion Scan" of employees to attempt to

detect any drug or drug residues on or about their persons when

they entered the institution to go on duty. The Respondent was

subjected to such an Ion Scan and successfully passed it. Thus,

she was aware that a drug detection effort was being conducted

on Saturday, January 30, 1999, at UCI.

3. February 1, 1999, was the Monday after that Saturday.

The Respondent was working that day in tower number five of UCI.

She had driven to work that day in the black Pontiac Grand Am in

question, which is registered in her name. She was working on

the 8:00 a.m. to 4:00 p.m., shift on that Monday.

4. It was very unusual for a drug detection operation to

be conducted on that Monday, immediately succeeding the Ion Scan

drug detection operation which had been conducted on Saturday,

two days before. Such a drug detection operation was conducted

in the parking lot of UCI on Monday, February 1, 1999, however,

using a drug detection dog. It was very unusual for a drug

detection dog to be used so soon after an Ion Scan drug

detection operation and also unusual for the dog to be used at

12:30 in the afternoon. The Respondent was surprised to find

that a drug detection dog was being used in the parking lot of

UCI on February 1, 1999.

5. When the Respondent came to work on that day she locked

her car leaving the windows slightly cracked and went inside to

go on duty. Later that day, at approximately 12:30 p.m., a drug

detection dog, handled by Sergeant Box of UCI, was examining

vehicles in the parking lot and "alerted" to the presence or

odor of narcotics inside or on the Respondent's vehicle. The

dog had been trained and certified to be capable of passively

alerting to the odors of four narcotics: marijuana, powdered

cocaine, crack cocaine and heroin. After the dog alerted to the

presence of contraband drugs in or on the Respondent's vehicle,

the Respondent, who was then working in tower number five, was

relieved of duty and summoned to her vehicle in the parking lot

on the grounds of UCI. When she arrived in the vicinity of her

vehicle, she was informed that a drug detection dog had alerted

to her vehicle. She provided a written consent, to the officers

present, to a search of her vehicle. The Respondent had to

unlock her vehicle in order for the drug detection officers to

begin their search of its interior. Upon gaining access to the

interior of the Respondent's vehicle, Sergeant Mobley of

Hamilton Correctional Institution, discovered an aluminum foil

package containing a white powder suspected to be cocaine, on

the passenger's side of her vehicle. Sergeant Mobley turned

that package over to the custody of Inspector Bailey.

6. Sergeant Dugger found what appeared to be marijuana on

the driver's side of the Respondent's vehicle. Prior to his

entry into the vehicle, Sergeant Dugger and Inspector Bailey had

observed through the window what appeared to be marijuana and

marijuana seeds on and about the driver's seat. The Respondent

is familiar with the appearance of marijuana and cocaine.

Moreover, she is aware that cocaine is commonly wrapped in

aluminum foil. Her former husband had been known to use cocaine

according to the Respondent's testimony.

7. Inspector Bailey took custody of the suspect ed cocaine

and marijuana and conducted two tests on both substances. The

results of his field test and Ion Scan test were positive for

marijuana and cocaine. The evidence was then turned over to

Inspector Yaw who conducted another Ion Scan test on the white

powder confirming it as cocaine.

8. Sergeant Dale Pfalzgraf of the Union County Sheriff's

Office, was summoned to UCI on that day, after the suspected

drugs were located in the Respondent's vehicle. Inspector Yaw

turned over to him a sealed plastic bag containing what appeared

to be marijuana and a tin-foil package of what appeared to be

cocaine. Deputy Pfalzgraf placed the Respondent under arrest

and transported her and the evidence to the Sheriff's office.

He placed the evidence into a secure locker with the evidence

custodian, pending its transportation to the Florida Department

of Law Enforcement (FDLE) laboratory.

9. Deputy Tomlinson of the Union County Sheriff's Office

was given the evidence that was seized from the Respondent's

vehicle by the evidence custodian and transported it to the FDLE

laboratory in Jacksonville, Florida, for testing.

10. At the FDLE laboratory, Allison Harms received the

evidence from Deputy Tomlinson. The evidence bag remained

sealed until testing was performed by Ms. Somera, the FDLE

chemistry analyst. Ms. Somera tested the substances contained

within the bag and positively identified them as cannibis and

cocaine.

11. The Respondent maintains in her testimony that her

former husband had access to her vehicle and had used it in the

last several days with some of his friends. She contends that

he is a known illicit drug user (cocaine). She also states that

she left the windows to her car slightly cracked for ventilation

when she parked it in the parking lot on the day in question to

go to work. She states, in essence, that either the illicit

drug materials found in her car were placed there without her

knowledge by her former husband or his friends or,

alternatively, that the correctional officers involved in the

investigation planted the drug materials in her car in order to

remove her from employment and/or licensure as retaliation for

past employment-related friction she states she had with prison

authorities. She also contends that another prison employee

told her in private that she was being "framed" but that that

person refused to testify on her behalf because of fear of

potential loss of his job. In any event, her self-serving

testimony is not corroborated by any other witness or exhibit

and is not credited.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.569 and 120.57(1), Florida Statutes

(2000).

13. Section 943.13(7) Florida Statutes, provid es that

Any person employed or appointed as a

correctional officer shall have good morale

character as determined by a background

investigation under procedures established

by the Commission.

14. Section 943.1395(7), Florida Statutes, has authorized

the Commission to revoke certification of any officer who has

failed to maintain good morale character . . . as required by

Section 943.13(7), Florida Statutes, or, alternatively, to

impose specified, lesser penalties upon the officer.

15. Section 943.139 5, Florida Statutes (1997), establishes

the criteria for revocation or discipline of an officer's

certificate upon the finding that the officer has failed to

maintain good morale character:

(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 Section

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.

16. In cases where revocation or suspension is sought

based upon an officer's alleged failure to maintain "good moral

character," the lack of good moral character must be established

by clear and convincing evidence. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996) ;

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987) ; McKinney v.

Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995).

17. The Court of Appeals for the First District provided

an operative definition of moral character in Zemour, Inc. v.

Division of Beverage , 347 So. 2d 1102 (Fla. 1st DCA 1977):

Moral character as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates an establishes the qualities

generally acceptable to the populace for

positions of trust and confidence.

18. The Florida Supreme Court stated in Florida Board of

Bar Examiners Re: G.W.L. , 364 So. 2d 454 (Fla. 1978):

In our view a finding of a lack of 'good

moral character' should not be restricted to

those acts that reflect moral turpitude. A

more appropriate definition of the phrase

requires an inclusion of acts and conduct

which would cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and respect for the

rights of others and for the laws of the

state and nation.

19. Rule 11B-27.0011(4), Florida Administrative Code,

provides a definition of "good moral character" for purposes of

implementation of disciplinary action upon Florida correctional

officers. The rule states in pertinent part:

(4 ) For the purposes of the 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 office for an

act that would constitute any felony offense

whether criminally prosecuted or not; and

(b ) 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. Section [ . . . ] 893.13, [ . . . ],

F.S.

20. Section 893.03(1)(c )7, Florida Statutes, specifies

that marijuana is a controlled substance. Further, Section

893.13(6)(b), Florida Statutes, provides that: "[i ]f 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."

21. Section 893.03(2)(a )4, Florida Statutes, specifies

that cocaine is a controlled substance. Further, Section

893.13(6)(a), Florida Statutes, provides that is it unlawful for

any person to be in actual or constructive possession of such a

controlled substance and that violation of that provision is a

felony of the third degree.

22. Section 944.47(1)(a), Florida Statutes, provides that

it is unlawful to introduce upon the grounds of any state

correctional institution any controlled substances defined in

Section 893.02(4), Florida Statutes. Such a violation is

therein provided to be a felony of the second degree. Section

944.47(2), Florida Statutes.

23. Rule 11B-27.005(5), Florida Administrative Code

(1998), provides a range of disciplinary guidelines to be

imposed on officers who are determined to have violated the

" good moral character" requirement found in Section 943.13(7),

Florida Statutes, to-wit:

(5 ) When the commission finds that a

certified officer has committed an act which

violates Section 943.13(7), F.S., it shall

issue a final order imposing penalties

within the ranges recommended in the

following disciplinary guidelines:

(a ) For the perpetration by the officer of

an act that would constitute any felony

offense, pursuant to Rule 11B-27.0011(4)(a),

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, suspension of certification to

revocation. Specific violations and

penalties that shall be imposed, absent

mitigating circumstances, include the

following:

4. Possession, sale of controlled substance

(893.13, F.S.) - Revocation.

(b ) For the perpetration by the officer of

an act which would constitute any of the

misdemeanor offenses, pursuant to Rule 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 revocation. Specific

violations and penalties that will be

imposed, absent aggravating or mitigating

circumstances, include the following:

11. Possess or delivery without

consideration, and not more than 20 grams of

Cannabis (893.13, F.S.) - Revocation.

24. The evidence is clear and convincing that on

February 1, 1999, the Respondent drove her vehicle containing

the marijuana and cocaine to her work site at UCI. She was not

concerned about any drug investigation or the presence of drugs

within her vehicle because she did not expect any inspection to

be conducted since the Ion Scan inspections had been conducted

just two days previously.

25. The evidence establishes that the Respondent possessed

marijuana and cocaine by having it in her vehicle. She

introduced it upon the grounds of a state correctional

institution by parking her car in the parking lot although she

did not seek to introduce any controlled substances into the

prison itself. These actions by the Respondent are sufficient

to establish lack of good moral character for purposes of the

above authority. The position of any law enforcement officer,

including a corrections officer, is one of great public trust

with a great public expectation that those who are licensed to

enforce the laws must themselves obey the law. City of Palm Bay

v. Bauman , 475 So. 2d 1322 (Fla. 5th DCA 1989).

26. The penalty guideline for the offenses charged under

the above-cited rule includes revocation of licensure. However,

the Respondent's misconduct is rendered less serious in that she

did not actually attempt to introduce controlled substances into

the prison itself for profit or for other motives, but merely

had the substances inside her locked vehicle. Although her

testimony to the effect that the substances were not hers, may

have been her husband's, or may have been planted by

correctional officers for vindictive purposes, is uncorroborated

and not accepted as fact, the possibility that she had at least

inadvertently introduced the substances in her possession in her

car onto UCI property warrants imposition of less than the

maximum penalty.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record and the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED:

That the Respondent be found guilty of failure to maintain

good moral character as defined by the above-cited legal

authority and that her certification be suspended for a period

of two years.

DONE AND ENTERED this 2nd day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative L aw Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this 2nd day of April , 2001.

COPIES FURNISHED:

Gabrielle Taylor, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Erlene Stewart

Route 1, Box 52

Sanderson, Florida 32087

A. Leon Lowry, II

Program Director

Division of Criminal Justice

Professionalism Services

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

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.