00-000298 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Eric J. Jenkins Status: Closed Recommended Order on Thursday, June 29, 2000.

Summary: Possession and introduction of cannabis onto the grounds of Florida State Prision constitutes lack of good moral character by a correctional officer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-0298

)

ERIC T. JENKINS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 13, 2000, in Lake Butler, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Karen D. Simmons, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent's Correctional Certificate

No. 164605 should be disciplined for the reasons set forth in the

Administrative Complaint.

PRELIMINARY STATEMENT

This matter began on August 13, 1999, when Petitioner,

Florida Department of Law Enforcement, Criminal Justice Standards

and Training Commission, issued an Administrative Complaint

charging that on December 20, 1998, Respondent, Eric T. Jenkins,

a certified correctional officer, had more than 20 grams of

cannabis in his possession, and that he unlawfully introduced

cannibis onto the grounds of Florida State Prison in violation of

state law. In a request filed on September 9, 1999, Respondent

has asked for a formal hearing under Section 120.569, Florida

Statutes, to contest the charges.

The matter was referred by Petitioner to the Division of

Administrative Hearings on January 19, 2000, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated April 14, 2000, a final

hearing was scheduled on June 13, 2000, in Lake Butler, Florida.

On June 12, 2000, the case was transferred from Administrative

Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner's ore tenus Motion to

Correct Scrivener's Errors in the Administrative Complaint was

granted to change Respondent's middle initial to a "T" and change

the word "that" to "than" in paragraph (2)(a) of the complaint.

Petitioner presented the testimony of Niels Bernstein, a chemist

with the Florida Department of Law Enforcement and accepted as an

expert in the area of analysis of controlled substances; Michael

Bailey, Kevin Box, Steven R. Pitt, J. Kevin Duggar, Charles

Futch, and Carol A. Starling, all Department of Corrections

employees; and Kenneth F. Brookins, a Florida Highway Patrol

trooper. Also, it offered Petitioner's Exhibits 1-10, which were

were received in evidence. Although served with a timely Notice

of Hearing, Respondent did not appear at the final hearing.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Petitioner on June

22, 2000, and they have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary proceeding, Petitioner, Florida

Department of Law Enforcement, Criminal Justice Standards and

Training Commission (Commission), seeks to discipline

Correctional Certificate No. 164605 held by Respondent, Eric T.

Jenkins, on the grounds that in December 1998 he was in

possession of more than 20 grams of cannabis, a controlled

substance, and he illegally carried contraband ( cannibis) onto

the grounds of Florida State Prison (FSP) while employed at FSP

as a correctional officer. In his request for a hearing,

Respondent denied the allegations.

2. Periodically, and without notice, the Department of

Corrections (DOC) sends a small contraband interdiction team

(team) to various state correctional institutions for the purpose

of intercepting contraband that may be covertly brought into the

facility by DOC employees or inmate visitors. The team consists

of a small number of specially trained DOC employees, including

K9 units, and a volunteer Florida Highway Patrol trooper, who

assists the team in making arrests.

3. On Sunday, December 20, 1998, a team targeted FSP and

arrived on the premises around 5:00 a.m. The inspection lasted

until shortly after the last shift of employees reported to work

around 4:00 p.m. Besides patting down employees and visitors,

the team also searched the vehicles of employees that were parked

in the employees' parking lot inside the prison. Respondent

worked the last shift that day and arrived shortly before 4:00

p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM

82B."

4. To assist the team in its search, the team used several

specially trained dogs (Blue, Smokey, and Thor) who were assigned

the task of sniffing parked vehicles for narcotic odors. When a

dog recognizes a narcotic odor, it "alerts" or responds to the

odor and remains passively in front of the vehicle.

5. After Blue "alerted" at the rear of Respondent's

vehicle, a second dog, Thor, was brought to the vehicle and he

also responded in the same manner. Respondent was then notified

that the team wished to search his vehicle, and he executed a

written Consent to Search form ageeing to a search.

6. A search conducted by a DOC officer discovered a latex

glove hidden under the front passenger seat of Respondent's

vehicle. Inside the glove were two compressed baggies containing

approximately 55 grams of a substance that appeared to be

cannibis. Laboratory testing by a state chemist confirmed that

the substance was indeed cannabis, and that it weighed 51.5

grams. Although the street value of the drugs was only around

$275.00, in a prison environment, the drugs had a far greater

value.

7. Respondent initially agreed to be interviewed by a

Florida Highway Patrol trooper at the prison regarding the

contraband. He subsequently had a change of heart and declined

to answer any questions. Respondent was then arrested for "drug

offenses," booked into the Bradford County Jail, and charged with

violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes

(1997). However, the disposition of the criminal matter is

unknown. In any event, after being arrested, Respondent was

immediately terminated from his position at FSP.

8. In mitigation, Respondent has been certified as a

correctional officer since June 26, 1996, and there is no

evidence that prior disciplinary action has been taken against

him. In aggravation, Respondent used his official authority to

facilitate his misconduct; he was employed as a correctional

guard when the misconduct occurred; Respondent has made no

efforts of rehabilitation; Respondent stood to receive pecuniary

gain by selling the contraband in the prison; and there are two

established counts of violations of the statute requiring that

correctional officers maintain good moral character.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (1999).

10. As the party seeking to take disciplinary action

against Respondent's professional license, Petitioner has the

burden of proving by clear and convincing evidence that the

charges in the Administrative Complaint are true. Newberry v.

Fla. Dep't of Law Enforcement , 585 So. 2d 500, 501 (Fla. 3d DCA

1991).

11. According to the complaint, the actions of Respondent,

if true, "violated Section 943.1395(6) and/or (7), Florida

Statutes, and/or Rule 11B-27.0011(4)(a), Florida Administrative

Code, in that Respondent has failed to maintain the

qualifications in Section 943.13(7), Florida Statutes, which

require that a correctional officer in the State of Florida have

good moral character." At the same time, Rule 11B-

27.0011`(4)(a), Florida Administrative Code, defines a certified

officer's failure to maintain good moral character as "[t]he

perpetration by the officer of an act which would constitute any

felony offense, whether criminally prosecuted or not."

12. By clear and convincing evidence, Petitioner has

established that the charges in the complaint are true. More

specifically, on the date in question, Respondent "did unlawfully

have . . . more than 20 grams of cannabis" in his possession, and

he "unlawfully introduced [cannabis] into or upon the grounds of

Florida State Prison," as alleged in the complaint. By engaging

in this conduct, which equates to the commission of two felony

offenses, Respondent has failed to maintain the necessary good

moral conduct required of a correctional officer.

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

provides that in the absence of any mitigating circumstances, the

penalty for introduction of contraband shall be revocation of the

certificate. Except for the two mitigating circumstances

identified in Finding of Fact 8, there are no others present. In

contrast, a number of aggravating factors are also present, which

outweigh any mitigating factors. This being so, revocation of

the correctional certificate is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Criminal Justice Standards and Training

Commission enter a final order determining that Respondent has

failed to maintain good moral character, as charged in the

Administrative Complaint, and that his Correctional Certificate

No. 164605 be revoked.

DONE AND ENTERED this 29th of June, 2000, in Tallahassee,

Leon County, Florida.

______________________________

DONALD R. ALEXANDER

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June, 2000.

COPIES FURNISHED:

A. Leon Lowrey, Jr., Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael R. Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Karen D. Simmons, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Eric T. Jenkins

1000 Bert Road

Jacksonville, Florida 32211

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.