91-001396 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Samuel O. Best Status: Closed Recommended Order on Tuesday, December 31, 1991.

Summary: Law enforcement officers license-insufficient evidence to establish knowing possession of marijuana or bad character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1396

)

SAMUEL O. BEST, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

Diane Cleavinger, a duly designated Hearing Officer of the Division of

Administrative Hearings, on October 15, 1991, at Panama City, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Rhonda S. Clyatt, Esquire

Post Office Box 2492

Panama City, Florida 32402

STATEMENT OF THE ISSUES

The issue in this proceeding is whether Respondent's certification as a law

enforcement officer should be disciplined.

PRELIMINARY STATEMENT

On November 7, 1990, the Petitioner, Criminal Justice Standards and

Training Commission, filed an Administrative Complaint against the Respondent,

Samuel O. Best, seeking imposition of an appropriate penalty, namely

decertification, for alleged violations of Chapter 943, Florida Statutes.

Specifically, the Commission alleged that Respondent, Samuel O. Best, lacked the

requisite good moral character for a police officer because on or about February

8, Respondent was in possession of a controlled substance as described in

Section 893.03, Florida Statutes, to wit: Cannabis and/or did introduce the

said substance into his body. See Sections 943.1395(5)5, (6) and 943.13(7),

Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c) and/or (d), Florida

Administrative Code.

At the hearing, Petitioner called four witnesses and introduced two

exhibits into evidence. Respondent testified in his own behalf, but did not

offer any exhibits.

Petitioner and Respondent filed proposed recommended orders on November 18,

1991 and November 21, 1991, respectively. Petitioner's and Respondent's

proposed findings of fact have been considered and utilized in the preparation

of this Recommended Order, except where such proposals were not supported by the

weight of evidence or were immaterial, cumulative or subordinate. Specific

rulings on the parties' proposed findings of fact are contained in the Appendix

to this Recommended Order.

FINDINGS OF FACT

1. On October 5, 1989, Respondent was certified by the Criminal Justice

Standards and Training Commission as a law enforcement officer, holding

certificate #11-89-002-01.

2. In February 1990, Samuel O. Best was employed as a police officer by

the City of Port St. Joe Police Department.

3. During the early part of February, Respondent accompanied a woman to a

local motel where the two shared a room and engaged in sexual intercourse.

4. While the two were in the room, the Respondent thought the woman smoked

two and one-half cigarettes. The items she smoked looked like normal

cigarettes. However, Respondent was not paying close attention to the woman's

activities or any odor of the smoke because he had his mind on more prurient

matters.

5. As the two prepared to leave the room, the Respondent, as was his

habit, straightened the motel room. The woman had dropped one of her cigarettes

on the floor and Respondent picked up the cigarette and placed it in his pocket.

6. The Respondent forgot about the cigarette in his pocket and kept it for

approximately two or three days.

7. Around February 8, 1990, the afternoon of the second or third day after

his liaison with the woman in the motel, Respondent went to his father's home

and sat on the front porch. The Respondent was on duty.

8. While contemplating the bleakness of his life, in part due to the

intense personal problems he was having with his wife, Respondent, who was a

heavy smoker, began looking for a cigarette to smoke. He found the motel

woman's cigarette in the pocket of a shirt he had worn for three days. He

pulled it out, looked at it and lit it. During this activity the "insurance

man" was walking up to the house.

9. Officer Best thought the substance in the cigarette was tobacco.

However, it tasted like perfume and he put the cigarette out after one puff. He

then left the porch to get his father for the insurance man.

10. There was an absence of any competent and substantial evidence

reflecting the identifying the substance contained in the cigarette as

marijuana. Additionally, no changes in Respondent's behavior were noted by

any of his fellow officers or supervisors at any time surrounding the events on

February 8, 1990.

11. On February 22, 1990, Chief Richter of the Port St. Joe Police

Department received a citizen complaint regarding the Respondent. The insurance

agent complained that he had observed the Respondent in police uniform on the

porch of the Respondent's father's home smoking. That same day, Chief Richter

contacted the Respondent and directed him to come to Chief Richter's office to

discuss the complaint. Upon his arrival in Chief Richter's office, Chief

Richter told the Respondent what the citizen had alleged. 1/

12. Chief Richter asked the Respondent if he would answer questions

regarding the allegation. The Respondent voluntarily agreed.

13. The initial discussion between Officer Best and Chief Richter lasted

approximately 20 to 25 minutes.

14. Officer Best's interpretation of what Chief Richter told him was that

the Chief had decided that Officer Best had been smoking marijuana. Officer

Best thought his Chief would not misinform him, and he did not argue with Chief

Richter over the issue of whether or not the substance was marijuana. However,

Officer Best did not know with any certainty what the substance was that he had

inhaled briefly while sitting on his father's front porch.

15. After the initial discussion, Chief Richter then placed the Respondent

under oath and began to question him while tape recording the interrogation.

From Respondent's point of view, the reference to marijuana during the

interrogation was merely a convenient label for referring to the cigarette he

briefly puffed on his father's front porch. Neither the reference or his

responses to questions using the term marijuana was intended to be an admission

of knowing drug use. Given the Respondent's demeanor at the hearing, it is

understandable under the facts of this case, that even with some training in

drug identification, Respondent was not able to identify the substance in the

cigarette and that he was also very submissive to what he believed to be a

superior officer's view of the matter.

16. As a result of the Respondent's statement, he was discharged from his

employment with the Port St. Joe Police Department.

17. However, even with the dismissal, the overwhelming evidence in this

case is that Respondent remains of good moral character and remains capable of

performing his duties and working with his fellow officers. Moreover, the

evidence fails to demonstrate that Respondent at any time knowingly possessed or

ingested marijuana. Given these facts, the Administrative Complaint should be

dismissed.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes (1987).

19. Chapter 943, Florida Statutes, regulates the certification of law

enforcement officers in Florida.

20. Section 943.13(4), Florida Statutes, establishes the minimum

qualifications for law enforcement officers in Florida, including at subsection

(7):

Have a good moral character as determined by

a background investigation under procedures

established by the Commission.

21. Rule 11B-27.0011(4), Florida Administrative Code, defines good moral

character. The Rule states in pertinent part:

(4) For the purposes of the Commission's

implementation of any of the penalties

enumerated in Subsection 943.1395(5) or (6),

a certified officer's failure to maintain

good moral character, as required by

Subsection 943.13(7), is defined as:

(a) The perpetration by the officer of an

act which would constitute any felony offense,

whether criminally prosecuted or not, or

(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:

Sections 117.03, . . . 812.014(1)(d)

[read 812.014(2)(d)][.]

(c) The perpetration by the officer of an

act or conduct which causes substantial

doubts concerning the officer's honesty,

fairness, or respect for the rights of others

or for the laws of the state and nation,

irrespective of whether such act or conduct

constitutes a crime[.]

Section 943.1395 requires:

The Commission shall revoke the certification

of any officer who is not in compliance with

the provisions of Section 943.13(1)-(10) . . .

(6) Upon a finding of 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 s.

943.13(7), the commission may enter an

order imposing one or more of the following

penalties in lieu of revocation of certifica-

tion:

(a) Suspension of certification for a

period not to exceed 2 years.

(b) 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.

(c) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(d) Issuance of a reprimand.

The Criminal Justice Standards and Training Commission has also

adopted a rule on the subject of discipline for the failure to

maintain good moral character. Rule 11B-27.005, Florida

Administrative Code, provides:

(2) The Commission sets forth below a range

of disciplinary guidelines from which disci-

plinary penalties will be imposed upon

certified officers who have been found by

the Commission to have violated Subsection

943.13(7), Florida Statutes. The purpose of

the disciplinary guidelines is to give notice

to certified officers of the range of penalties

which will be imposed upon particular violations

of Subsection 943.13(7), Florida Statutes,

except as provided in Subsections (4), herein.

The disciplinary guidelines are based upon a

single count violation of each provision

listed. Multiple counts of violations of

Subsection 943.13(7), Florida Statutes, will

be grounds for enhancement of penalties. All

penalties at the upper range of the sanctions

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

of revocation), include lesser penalties (i.e.,

reprimand, remedial training, or probation),

which may be included in the final penalty at

the Commission's discretion.

(3) When the Commission finds that a certified

officer has committed an act which violates

Subsection 943.13(7), Florida Statutes, it shall

issue a final order imposing penalties within

the ranges recommended in the following discipli-

nary guidelines:

(a) For the perpetration by the officer of

an act which would constitute any felony

offense, as described in Rule 11B-27.0011(4)(a),

but where there was not a violation of Sub-

section 943.13(4), Florida Statutes, the usual

action of the Commission shall be to impose a

penalty ranging from suspension to revocation.

(b) For the perpetration by the officer of an

act which would constitute any of the mis-

demeanor offenses as described in Rule 11B-

27.0011(4)(b), but where there was not a

violation of Subsection 943.13(4), Florida

Statutes, the action of the Commission shall

be to impose a penalty ranging from probation

to revocation.

(c) For the perpetration by the officer of an

act or conduct which causes substantial doubts

concerning the officer's honesty, fairness, or

respect for the rights of others or for the

laws of the state and nation, as described in

Rule 11B-27.001(4)(c), if such act or conduct

does not constitute a crime, as described in

Rule 11B-27.0011(4)(c), if such act or conduct

does not constitute a crime, as described in

paragraphs (3)(a) and (b) above, the action of

the commission shall be to impose a penalty

ranging from the issuance of a reprimand to

revocation.

(d) For the unlawful use by the officer of

any of the controlled substances enumerated

in Rule 11B-27.00225, as described in Rule

11B-27.0011(4)(d), the action of the commission

shall be to impose a penalty ranging from sus-

pension to revocation.

(4) The Commission shall be entitled to deviate

from the above-mentioned guidelines upon a showing

of mitigating circumstances by evidence presented

to the Commission prior to the imposition of a

final penalty. The Commission may base a deviation

from the disciplinary guidelines upon a finding of

one or more of the following mitigating circumstances:

(a) Whether the officer used his or her official

authority to facilitate the misconduct;

(b) Whether the misconduct was committed while

the officer was performing his or her other

duties;

(c) The officer's employment status at the time

of the final hearing before the Commission;

(d) The recommendations of character or employ-

ment references;

(e) The number of violations found by the

Commission;

(f) The number of prior disciplinary actions

taken against the officer by the Commission;

(g) The severity of the misconduct;

(h) The danger to the public;

(i) The length of time since the violation;

(j) The length of time the officer has been

certified;

(k) The actual damage, physical or otherwise,

caused by the misconduct;

(l) The deterrent effect of the penalty imposed;

(m) Any effort of rehabilitation by the officer;

(n) The effect of the penalty upon the officer's

livelihood;

(o) The penalties imposed for other misconduct;

(p) The pecuniary benefit or self-gain to the

officer realized by the misconduct;

(q) The officer's compliance with the terms and

conditions of any Commission-ordered probation;

(5) The Commission may impose one or more of the

following penalties, listed in increasing order of

severity:

(a) The issuance of a reprimand.

(b) Successful completion by the officer of any

basic recruit, advanced, or career development

training or such retraining deemed appropriate

by the Commission.

(c) Placement on a probationary status for a

period not to exceed 2 years, subject to terms

and conditions of probation may include, but

are not limited to: periodic reports from the

officer, supervisor or counselor; indirect or

direct supervision by Division staff or a

Commission-approved supervisor; furnishing

urine drug tests; personal appearance(s)

before the Commission; participation in

psychological, occupational or substance

abuse counseling; successful completion of

training or retraining as specified in

Subsection (5)(b) above; maintaining employ-

ment; refraining from violations of Subsection

943.13(1)-(10); the payment of restitution for

damages or loss created by the officer's mis-

conduct; or any other terms or conditions as

appropriate.

(d) Suspension of certification and the

privilege of employment as an officer for a

period not to exceed 2 years.

(e) Revocation of certification.

22. Respondent is charged with violating Section 943.13, Florida Statutes,

and Rule 11B-27.0011(4)(a), Florida Administrative Code, by virtue of his

failure to maintain the qualification of good moral character as required in

Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4). The lack of "good

moral character" alleged by Petitioner stems from its allegation that Best did:

"unlawfully, and knowingly be in actual

or constructive possession of a controlled

substance named or described in Section

893.03, Florida Statutes., to wit: Cannabis,

and/or did introduce the said substance into

his body."

23. Petitioner has the burden to prove by clear and convincing evidence

that the Respondent violated Chapter 943 and is subject to discipline for that

violation. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Walker v.

State, 322 So.2d 612 (Fla. 3d DCA !975); Reid v. Florida Real Estate Commission,

188 So.2d 846 (Fla. 2d DCA 1966). In this case, Petitioner has not carried its

burden of demonstrating that Best failed to maintain a "good moral character" as

required by Section 943.13(7), Florida Statutes. See, Bachynsky v. State,

Department of Professional Regulation, Board of Medical Examiners, 471 So.2d

1305 (Fla. 1st DCA 1985); McClung v. Criminal Justice Standards and Training

Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Florida Board of Bar Examiners

re: G.W.L., 364 So.2d 454 (Fla. 1978), Zemour, Inc. v. State of Florida,

Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). The evidence did not

demonstrate that Respondent committed the acts alleged to demonstrate his lack

of character, i.e., knowing use of marijuana. Likewise, the evidence failed to

demonstrate that Respondent lacked good moral character. In fact, the evidence

affirmatively demonstrated that Respondent continues to be of good moral

character. Thus, it must be concluded that no violation of Section 943.13(7),

Florida Statutes, has occurred, and the Administrative Complaint should be

dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

recommended that the amended Administrative Complaint filed against Samuel O.

Best be dismissed.

RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida.

__________________________________

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings

The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 1991.

ENDNOTES

1/ The insurance agent was not present at the hearing and did not offer any

evidence at the hearing. Therefore his ability to identify the odor of

marijuana is in serious doubt and the hearsay testimony of Chief Richter about

the insurance agent's claims regarding such an ability are insufficient to

establish that the substance in the cigarette was marijuana.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1396

1. The facts contained in paragraphs 1,2,3,5,6,7,8 and 9, of Petitioner's

Proposed Findings of Fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 4,15 and 17 of Petitioner's Proposed

Findings of Fact are subordinate.

3. The facts contained in paragraphs 10,11,12,13 and 14 of Petitioner's

Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in the first sentence of paragraph 16 of Petitioner's

Proposed Findings of Fact are subordinate. The remainder of the paragraph was

not shown by the evidence.

5. The facts contained in paragraphs 1,2,3,4,5,8,9,10,11 and first paragraph

numbered 12, are adopted in substance, insofar as material.

6. The facts contained in paragraphs 6,7,13 and second paragraph numbered 12 of

Respondent's Proposed Findings of Fact are subordinate.

7. The facts contained in the second paragraph numbered 13 of Respondent's

Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Joseph S. White, Esquire

Post Office Box 1489

Tallahassee, FL 32302

Rhonda S. Clyatt, Esquire

Post Office Box 2492

Panama City, FL 32402

Jeffrey Long, Director

Criminal Justice Standards

and Training Commission

Post Office Box 1489

Tallahassee, FL 32302

James T. Moore

Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.