08-001210PL Criminal Justice Standards And Training Commission vs. Michelle A. Liguori Status: Closed Recommended Order on Wednesday, July 16, 2008.

Summary: Respondent was in constructive possession of marijuana. This offense is a first degree misdemeanor and evidences Respondent`s failure to maintain good moral character. Recommend revocation of Respondent`s law enforcement certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-1210PL

)

MICHELLE A. LIGUORI, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on May 1, 2008, in Viera, Florida, before Administrative Law

Judge Carolyn S. Holifield of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the offense

alleged in the Administrative Complaint, and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On November 9, 2007, Petitioner, Criminal Justice Standards

and Training Commission ("Commission"), filed an Administrative

Complaint against Respondent, Michelle A. Liguori, which alleged

that she failed to maintain the qualifications established in

Subsection 943.13(7), Florida Statutes (2004), 1/ which require

that correctional officers in the State of Florida have good

moral character.

Specifically, the Administrative Complaint alleged that

Respondent violated the following: (1) Subsection 893.13(6)(b),

Florida Statutes, or any lesser included offenses;

(2) Subsection 943.1395(7), Florida Statutes; and (3) Florida

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

Respondent timely filed an Election of Rights disputing the

allegations and requested a formal hearing. The case was

referred to the Division of Administrative Hearings on March 11,

2008.

At hearing, Petitioner presented the testimony of one

witness, Officer Thomas Cooper. Petitioner's Exhibits 1

through 3 were admitted into evidence. Respondent failed to

appear at the hearing, and no evidence was presented on her

behalf.

The Transcript of the proceeding was filed on June 3, 2008.

Petitioner timely filed a Proposed Recommended Order, which has

been considered in the preparation of this Recommended Order.

Respondent did not file any post-hearing submissions.

FINDINGS OF FACT

Based upon the exhibits received into evidence and the

testimony of the witness at the hearing, the following findings

are made:

1. Respondent was certified by Petitioner as a

correctional officer on June 8, 2004, and issued Certificate

No. 241081.

2. At all times relevant to this proceeding, Officer

Cooper was a traffic homicide patrol officer with the Cocoa

Beach Police Department, Cocoa Beach, Florida.

3. On the evening of June 24, 2005, while on duty, Officer

Cooper observed a vehicle that was speeding and driving without

headlights. Officer Cooper then had the driver of the vehicle

to pull over to the side of the road.

4. Once the vehicle pulled over and stopped, Officer

Cooper approached and made contact with the driver of the

vehicle and Respondent. Respondent was in the right front

passenger seat of the vehicle.

5. Officer Cooper smelled a strong, very distinct odor of

burnt cannabis (marijuana) coming from inside the vehicle when

he made contact with the driver.

6. The driver of the vehicle admitted to smoking marijuana

inside the vehicle.

7. Officer Cooper approached the passenger side of the

vehicle and asked Respondent to step out of the vehicle. When

Respondent stepped out of the vehicle, Officer Cooper observed a

clear plastic bag containing marijuana on the ground next to the

passenger side of the vehicle. The outside of the plastic bag

was dry, even though it had just rained.

8. Officer Cooper arrested Respondent and charged her with

constructive possession of a controlled substance, a violation

of Subsection 893.13(6)(b), Florida Statutes.

9. Respondent never denied possession of the marijuana.

In fact, she told Officer Cooper that she "made a big mistake, a

very big mistake."

10. Subsequent to Respondent's arrest, Officer Cooper

asked Respondent if that was the last bit of "weed" that she

had, and Respondent replied, "Yes sir, it was."

11. Officer Cooper videotaped the traffic stop.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2007).

13. Section 943.13, Florida Statutes, establishes the

minimum qualifications for certification as a law enforcement

officer in Florida. Subsection (7) of that provision requires

that all such officers "have good moral character as determined

by a background investigation under procedures established by

the commission."

14. Section 943.1395, Florida Statutes, authorizes the

Commission to take disciplinary action against the certificate

of a correctional officer for the offenses enumerated therein.

Pursuant to Subsection 943.1395(7), Florida Statutes, the

Commission is authorized to revoke, suspend, or otherwise

discipline the certification of any officer who has not

maintained good moral character.

15. In the Administrative Complaint, the Commission

alleged that Respondent unlawfully possessed no more than

20 grams of marijuana. By committing this act, the Commission

contends that Respondent had failed to maintain the

qualifications established in Subsection 943.13(7), Florida

Statutes. Specifically, the Commission maintains that by

possessing marijuana, Respondent has failed to maintain good

moral character.

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

implements relevant portions of Section 943.1395, Florida

Statutes, provides in relevant part:

(4) For the purposes of the Commission's

implementation of any of the penalties

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

Florida Statutes, a certified officer's

failure to maintain good moral character,

as required in Section 943.13(7), Florida

Statutes, is defined as:

* * *

(b) The perpetration by the Officer of an

act which would constitute any of the

following misdemeanor or criminal offenses,

whether criminally prosecuted or not: . . .

893.13, F.S. . . .

17. Section 893.13, Florida Statutes, prohibits the actual

or constructive possession of marijuana and designates that the

possession of "not more than 20 grams of cannabis" is a first-

degree misdemeanor. See § 893.13(6)(a) and (b), Fla. Stat.

18. The Commission has the burden of proof in this

proceeding. To meet this burden, the Commission must show by

clear and convincing evidence that Respondent committed the acts

alleged in the Administrative Complaint. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

19. The Commission established by clear and convincing

evidence that Respondent was in constructive possession of no

more than 20 grams of marijuana on the evening of June 24, 2005,

and, thereby, violated Section 893.13, Florida Statutes. This

violation by Respondent constitutes a first-degree misdemeanor.

20. Pursuant to Florida Administrative Code Rule

11B-27.0011(4), the act committed by Respondent evidences her

failure to maintain good moral character as required by

Subsection 943.13(7), Florida Statutes. Having failed to

maintain "good moral character" as prescribed by Subsection

943.13(7), Florida Statutes, Respondent no longer meets the

criteria for retaining a law enforcement or correctional officer

certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Criminal Justice Standards and

Training Commission, enter a final order revoking the law

enforcement certificate of Respondent, Michelle A. Liquori.

DONE AND ENTERED this 15th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division 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 15th day of July, 2008.

ENDNOTE

1/ All references are to 2004 Florida Statutes, unless otherwise

indicated.

COPIES FURNISHED :

James D. Martin, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michelle A. Liguori

3790 Town Square Boulevard

Melbourne, Florida 32901

Michael Crews, 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.