08-001626PL Criminal Justice Standards And Training Commission vs. Shacoyia Mcphee Status: Closed Recommended Order on Monday, July 28, 2008.

Summary: Respondent is guilty of introducing contraband (marijuana and vodka) onto the grounds of the correctional facility. Recommend revocation of her certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-1626PL

)

SHACOYIA MCPHEE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

June 13, 2008, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint issued against her and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On February 6, 2008, Petitioner issued an Amended

Administrative Complaint against Respondent alleging the

following facts:

1. Respondent was certified by the Criminal

Justice Standards and Training Commission on

March 26, 2007, and was issued Correctional

Certificate Number 264941.

2. On or about August 8, 2007, the

Respondent, Shacoyia McPhee, did unlawfully

introduce into or upon the grounds of

Everglades Correctional Institution, a state

correctional institution, or take or attempt

to take, or send or attempt to send

therefrom, an intoxicating beverage (vodka),

written communications, U.S. currency and

cannabis, articles or things declared to be

contraband, except through regular channels

as authorized by the officer in charge of

the institution.

According to the Amended Administrative Complaint, "the actions

of the Respondent did violate the provisions of Section

944.47(1)(a) or any lesser included offenses, Section

943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(a),

Florida Administrative Code, in that Respondent has failed to

maintain the qualifications established in Section 943.13(7),

Florida Statutes, which require that a Correctional Officer in

the State of Florida have good moral character." Through the

submission of an Election of Rights, Respondent "dispute[d] the

allegations of fact contained in the Amended Administrative

Complaint" and requested a "formal hearing pursuant to Section

120.57(1), Florida Statutes, before an administrative law judge

appointed by the Division of Administrative Hearings." In her

hearing request, Respondent indicated:

Those material facts which I dispute are:

(a) Possession of marijuana

(b) Open container of vodka

The matter was referred to DOAH on April 3, 2008, for "the

assignment of an administrative law judge" to conduct the

hearing Respondent had requested.

The hearing was scheduled for June 13, 2008. Petitioner

and Respondent were provided with written notice of the hearing

in accordance with Section 120.569(2)(b), Florida Statutes. 1 The

notice was in the form of Notice of Hearing by Video

Teleconference mailed April 15, 2008, to Petitioner's counsel of

record and to Respondent .

Petitioner appeared at the hearing, which was held as

scheduled on June 13, 2008, through its counsel of record.

Respondent, on the other hand, did not make an appearance at the

hearing, either in person or through counsel or any other

authorized representative.

At the hearing, Petitioner presented the testimony of two

witnesses: Inspector Tony Pesante and Inspector Brian White.

In addition, it offered into evidence three exhibits

(Petitioner's Exhibits 1 through 3). All three exhibits were

admitted.

At the close of the taking of evidence, the undersigned

established a deadline (14 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on July 3, 2008.

Petitioner filed its Proposed Recommended Order on July 21,

2008. To date, Respondent has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, the following

findings of fact are made:

1. Respondent is now, and has been since March 26, 2007,

certified as a correctional officer in the State of Florida.

She holds Correctional Certificate Number 264941.

2. At all times material to the instant case, Respondent

was employed by the Florida Department of Corrections

(Department) as a correctional officer and assigned to the

Everglades Correctional Institution (ECI).

3. Tony Pesante is now, and was at all times material to

the instant case, employed by the Department as a law

enforcement inspector and assigned to ECI.

4. Brian White is now, and was at all times material to

the instant case, employed by the Department as a canine

inspector and assigned to the Department's Office of the

Inspector General. On August 8, 2007, his canine partner was

Ziggy, a certified narcotics detection dog.

5. On or about August 6, 2007, Inspector Pesante received

a tip from an inmate that Respondent was going to be bringing

narcotics to ECI on August 8, 2007.

6. Inspector Pesante observed Respondent when she parked

her car in the ECI staff parking lot on August 8, 2007, and

exited the vehicle. The parking lot is located on the grounds

of ECI.

7. Inspector White and Ziggy were summoned to the parking

lot.

8. Ziggy alerted to the presence of narcotics in

Respondent's vehicle.

9. Inspectors Pesante and White then searched the vehicle

(after they had Respondent unlock it).

10. In the vehicle, they found a small amount of cannabis,

a partially full bottle of Absolut Vodka, 2 and various letters

and other written materials, including correspondence from

inmates.

11. Following the search of the vehicle, Inspector Pesante

instructed Respondent to "wait in the lobby [of the facility]

while [he] was getting ready to interview her."

12. Instead of waiting in the lobby, Respondent got into

her vehicle and drove off.

13. Her employment was subsequently terminated, and she

never returned to the facility.

CONCLUSIONS OF LAW

14. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

15. At all times material to the instant case, Section

943.13(7), Florida Statutes, has provided that any person

employed or appointed as a law enforcement or correctional

officer in the State of Florida shall "[h]ave a good moral

character as determined by a background investigation under

procedures established by [Petitioner]."

16. At all times material to the instant case, Section

943.1395(7), Florida Statutes, has authorized Petitioner to

revoke the certification of a law enforcement or correctional

officer who has failed to maintain "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),"

Florida Statutes, or, alternatively, to impose specified, lesser

penalties on the certificate holder, to wit: "[s]uspension of

certification for a period not to exceed 2 years"; "[p]lacement

on a probationary status for a period not to exceed 2 years";

"[s]uccessful completion . . . of any basic recruit, advanced,

or career development training or such retraining deemed

appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."

17. Such action may be taken only if the certificate

holder's lack of "good moral character" is 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); Dieguez v.

Department of Law Enforcement, Criminal Justice Standards and

Training Commission , 947 So. 2d 591, 595-596 (Fla. 3d DCA 2007);

Newberry v. Florida Department of Law Enforcement , 585 So. 2d

500 (Fla. 3d DCA 1991); and § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute. . . .").

18. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

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 explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such 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

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

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

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

19. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of lack of

"good moral character" made in the charging instrument. Due

process prohibits an agency from taking penal action against a

certificate holder based on matters not specifically alleged in

the charging instrument, unless those matters have been tried by

consent. See Trevisani v. Department of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005); Aldrete v. Department of Health,

Board of Medicine , 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004);

Shore Village Property Owners' Association, Inc. v. Department

of Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); and Lusskin v. Agency for Health Care Administration , 731

So. 2d 67, 69 (Fla. 4th DCA 1999).

20. "'Moral character' . . . [is] 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 and establishes the

qualities generally acceptable to the populace for positions of

trust and confidence." Zemour, Inc. v. State Division of

Beverage , 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law

enforcement or correctional officer demonstrates a lack of "good

moral character" when he or she engages in "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."

Florida Board of Bar Examiners Re: G. W. L. , 364 So. 2d 454, 458

(Fla. 1978).

21. Petitioner, which has the ultimate authority to

administratively interpret the provisions of Sections 943.13(7)

and 943.1395, Florida Statutes, has defined in Florida

Administrative Code Rule 11B-27.0011(4) what constitutes, "[f]or

the purposes of [Petitioner's] implementation of any of the

penalties specified in Section 943.1395, [Florida Statutes], a

certified officer's failure to maintain [the] good moral

character required by Section 943.13(7), [Florida Statutes]."

22. At all times material to the instant case, Florida

Administrative Code Rule 11B-27.0011(4)(a) has provided that

such a "failure to maintain good moral character" includes,

among other things:

The perpetration by an officer of an act

that would constitute any felony offense,

whether criminally prosecuted or not.

23. Section 944.47, Florida Statutes, describes the felony

crime of introducing contraband upon the grounds of a state

correctional institution. At all times material to the instant

case, it has provided, in pertinent part, as follows:

(1) (a) Except through regular channels as

authorized by the officer in charge of the

correctional institution, it is unlawful to

introduce into or upon the grounds of any

state correctional institution . . . any of

the following articles which are hereby

declared to be contraband for the purposes

of this section, to wit:

1. Any written or recorded communication or

any currency or coin given or transmitted,

or intended to be given or transmitted, to

any inmate of any state correctional

institution.

* * *

3. Any intoxicating beverage or beverage

which causes or may cause an intoxicating

effect.

4. Any controlled substance as defined in

s. 893.02(4) or any prescription or

nonprescription drug having a hypnotic,

stimulating, or depressing effect.

* * *

(2) A person who violates any provision of

this section as it pertains to an article of

contraband described in subparagraph

(1)(a)1. or subparagraph (1)(a)2. is guilty

of a felony of the third degree, punishable

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

775.084. In all other cases, a violation of

a provision of this section constitutes a

felony of the second degree, punishable as

provided in s. 775.082, s. 775.083, or s.

775.084.

24. Vodka is an "intoxicating beverage or beverage which

causes or may cause an intoxicating effect," within the meaning

of Section 944.47(1)(a)3, Florida Statutes. Cf. Slater v. Dodd ,

108 Ga. App. 879 (Ga. App. 1964)("The trial court should have

taken judicial notice of the fact that 'vodka' is

intoxicating . . . ."); and State v. Moore , 138 Mont. 379, 383

(Mont. 1960)("[T]his court has taken judicial notice of the fact

that vodka is an 'intoxicating liquor' as defined in R.C.M.

1947, § 94-35-107.").

25. Section 893.02(4), Florida Statutes, defines

"controlled substance" as "any substance named or described in

Schedules I-V of s. 893.03," Florida Statutes. Cannabis is

among the substances "named or described in Schedules I-V of s.

893.03." See § 893.03(1)(c)7, Fla. Stat. It therefore is a

"controlled substance," within the meaning of Section

944.47(1)(a)4, Florida Statutes.

26. In the instant case, Petitioner is seeking to take

disciplinary action against Respondent on the ground that she

has failed to maintain "good moral character" in that:

On or about August 8, 2007, the Respondent,

Shacoyia McPhee, did unlawfully introduce

into or upon the grounds of Everglades

Correctional Institution, a state

correctional institution, or take or attempt

to take, or send or attempt to send

therefrom, an intoxicating beverage (vodka),

written communications, U.S. currency and

cannabis, articles or things declared to be

contraband, except through regular channels

as authorized by the officer in charge of

the institution.

27. Through its evidentiary presentation at hearing,

Petitioner clearly and convincingly established that Respondent

brought onto the grounds of ECI (specifically the staff parking

lot) vodka and cannabis and thereby violated Section

944.47(1)(a)3 and 4, Florida Statutes, 3 a violation which

constitutes a "failure to maintain good moral character" and

warrants the imposition of an appropriate penalty.

28. In determining what disciplinary action Petitioner

should take against Respondent for her "fail[ing] to maintain

good moral character" by engaging in this conduct, it is

necessary to consult Petitioner's "disciplinary guidelines" in

Florida Administrative Code Rule 11B-27.005, which impose

restrictions and limitations on the exercise of its disciplinary

authority. See Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 1231, 1233-34 (Fla. 5th DCA

1999)("An administrative agency is bound by its own rules . . .

creat[ing] guidelines for disciplinary penalties.").

29. Florida Administrative Code Rule 11B-27.005 provides,

in pertinent part, as follows:

* * *

( 4)(a) The Commission sets forth in

paragraphs (5)(a)-(d) of this rule section,

a range of disciplinary guidelines from

which disciplinary penalties shall be

imposed upon certified officers who have

been found by the Commission to have

violated Section 943.13(7), F.S. The

purpose of the disciplinary guidelines is to

give notice to certified officers of the

range of penalties or prescribed penalties

that shall be imposed for particular

violations of Section 943.13(7), F.S.,

absent aggravating or mitigating

circumstances, as provided in subsection (6)

of this rule section. The disciplinary

guidelines are based upon a "single count

violation" of each provision listed. All

penalties at the upper range of the

sanctions set forth in the guidelines (i.e.,

suspension or revocation), include lesser

penalties (i.e., reprimand, remedial

training, or probation), that may be

included in the final penalty at the

Commission's discretion.

* * *

(5) When the Commission finds that a

certified officer has committed an act that

violates Section 943.13(7), F.S., the

Commission 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 paragraph 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:

* * *

8. Violation: Introduction of contraband

into a jail or prison involving a firearm,

concealed weapon, controlled substance,

currency, or a tool or implement useful in

an attempt to escape from custody (944.47

and 951.22, F.S.); Recommended Penalty

Range: Revocation.

* * *

(6) The Commission shall be entitled to

deviate from the disciplinary guidelines in

this rule section, upon a showing of

aggravating or mitigating circumstances by

evidence presented . . . to an

Administrative Law Judge, if pursuant to

Section 120.57(1), F.S., prior to the

imposition of a final penalty. The

Commission shall base a deviation from the

disciplinary guidelines upon a finding of

one or more of the following:

(a) Aggravating circumstances:

1. Whether the certified officer used

official authority to facilitate the

misconduct.

2. Whether the misconduct was committed

while the certified officer was performing

other duties.

3. The number of violations found by the

Commission.

4. The number and severity of prior

disciplinary actions taken against the

certified officer by the Commission,

provided the officer was previously

disciplined by the Commission within the

preceding eight years or received a Letter

of Guidance within the preceding five years.

5. The severity of the misconduct.

6. The danger to the public.

7. The actual damage, physical or

otherwise, caused by the misconduct.

8. The lack of deterrent effect of the

penalty imposed by the employing agency.

9. The pecuniary benefit or self-gain to

the officer realized by the misconduct.

10. Whether the misconduct was motivated by

unlawful discrimination.

11. Any behavior constituting "domestic

violence" defined by Section 741.28(1), F.S.

12. Whether the certified officer has

previously received a Letter of

Acknowledgement within the preceding three

years.

(b) Mitigating circumstances:

1. The officer's employment status in a

position requiring Commission certification

at the time of the final hearing before the

Commission.

2. The recommendations of character or

employment references.

3. The lack of severity of the misconduct.

4. The length of time the officer has been

certified by the Commission.

5. Any effort of rehabilitation by the

certified officer.

6. The effect of disciplinary or remedial

action taken by the employing agency or

recommendations of employing agency

administrator.

7. The recommendation of a Probable Cause

Panel to impose a penalty below the penalty

guideline.

8. Effort of the officer to retract a false

statement prior to the close of the

disciplinary or criminal investigation.

30. In its Proposed Recommended Order, Petitioner has

argued that Respondent's certification should be revoked.

Having carefully considered the facts of the instant case in

light of the provisions of Florida Administrative Code Rule 11B-

27.005 set forth above, the undersigned agrees with Petitioner

that the disciplinary action that should be taken against

Respondent for the violation she committed is revocation of her

certificate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and

Training Commission issue a Final Order finding Respondent

guilty of "fail[ing] to maintain good moral character" and

revoking her certification based on this finding.

DONE AND ENTERED this 28th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 28th day of July, 2008.

ENDNOTES

1 / All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2007).

2 / The bottle contained approximately a quarter of a pint of

vodka.

3 / Petitioner failed to demonstrate by clear and convincing

evidence that the written materials Respondent brought onto the

grounds of ECI in her vehicle were the type prohibited by

Section 944.47(1)(a)1, Florida Statutes. Neither did it offer

clear and convincing proof of Respondent's engaging in any

unlawful activity involving "U.S. currency."

COPIES FURNISHED :

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Shacoyia McPhee

17231 Northwest 33rd Court

Miami Gardens, Florida 33056

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.