95-003844 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Mary J. Byrd Status: Closed Recommended Order on Monday, January 29, 1996.

Summary: Pet proved fail to maint good moral char bec did'nt follow Law re: husbands marijuana on marital premises; construet poss exten circums, so less penalty

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3844

)

MARY J. BYRD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael

Ruff, duly-designated Hearing Officer of the Division of Administrative

Hearings, on October 19, 1995, in Perry, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Robert J. Schramm, Esquire

Post Office Box 29

Perry, Florida 32347-0029

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent

has violated Section 943.1395(6),(7), Florida Statutes, and Rule 11B-

27.0011(4)(a) and (c), Florida Administrative Code, by failing to maintain the

qualifications established in Section 943.13(7), Florida Statutes, concerning

good moral character.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint against the

Respondent by the Petitioner agency on February 21, 1993. The Complaint charges

that on or about July 29, 1992, the Respondent was guilty of knowingly and

unlawfully possessing more than 20 grams of a controlled substance, to wit:

cannabis. On or about March 24, 1993, the Respondent elected to request an

administrative proceeding, pursuant to Section 120.57, Florida Statutes. The

case thereafter was forwarded to the Division of Administrative Hearings and

ultimately the undersigned Hearing Officer on July 27, 1995.

The cause came on for hearing as noticed. The Petitioner adduced the

testimony of two witnesses at hearing and had Exhibits 1, 2 and 4 admitted into

evidence. The Petitioner's Exhibit 3 was identified but later withdrawn and not

offered. The Respondent adduced the testimony of one witness, the Respondent

herself, and the Respondent's Exhibit 1 was admitted into evidence.

The parties were afforded the opportunity to submit proposed findings of

fact and conclusions of law in the form of proposed recommended orders.

Subsequent to the hearing, the Petitioner filed a Proposed Recommended Order,

but none has been filed by the Respondent. The proposed findings of fact

submitted by the Petitioner are addressed herein and specifically ruled upon in

the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged under

Chapter 943, Florida Statutes, and related rules, with regulating the licensure

status, including determination of entitlement to licensure, of law enforcement

and correctional officers in the State of Florida. The agency is also charged

by the Legislature with regulating and enforcing the practice standards for

certified law enforcement officers, including correctional officers, embodied in

Chapter 943, Florida Statutes, and related rules.

2. The Respondent was certified by the Criminal Justice Standards and

Training Commission (Commission) on or about March 7, 1991. She was issued

corrections certification number 45-90-502-11. From March of 1991 through July

31, 1992, the Respondent was employed as a corrections officer for the Taylor

County Sheriff's Office. She has no criminal record and no record of

administrative discipline of any sort.

3. During the course of her training to be a corrections officer, the

Respondent received classroom training in the identification of controlled

substances, including cannabis (marijuana). This training included the viewing

of actual cannabis in the classroom but did not include training in recognizing

it as a growing plant in the field.

4. Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company.

On or about July 29, 1992, and until sometime in February of 1995, he was

employed by the Taylor County Sheriff's Office. Danny Williams is an

investigator with the Taylor County Sheriff's Office and has been employed in

that capacity since January of 1990. Investigator Williams has had training in

the aerial detection, and other means of identification, of marijuana. He

participates in four to eight flights per year in aircraft searching for

marijuana plants, essentially in rural areas of Taylor County.

5. On July 29, 1992, Investigator Williams was the passenger in a

helicopter, provided to the Taylor County Sheriff's Office by an unknown agency,

participating in an aerial search for marijuana plants. During this search, he

noticed what appeared to be marijuana plants growing in or adjacent to the

backyard of a residence which proved to be the Respondent's residence.

Investigator Williams, upon being landed at the airport, entered his patrol

vehicle and drove to the residence of the Respondent and her husband, James

Byrd.

6. On route to that location, Investigator Williams, presumably by radio

communication, summoned other law enforcement officers of the Taylor County

Sheriff's Office. He was, therefore, met at the front gate of the residence

premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and

others. The front gate was on the portion of the premises immediately adjacent

to the public thoroughfare by which the premises are normally entered by

vehicles. The residence premises contained a wood-frame house on a well-

landscaped yard of a fairly-open character with few or no trees. The rearward

portion of the premises, analogous to the "backyard", was that portion of the

premises most distant from the public highway (toward which the house faces).

It is observable by an observer looking in the opposite direction or away from

the public highway upon which the premises fronts. In this rearward portion of

the premises, in a rearward corner of the backyard, there was a dog pen, located

approximately 75-100 feet from the northwest corner of the rear portion of the

house.

7. Investigator Williams and Deputy Morgan observed an individual, who

proved to be James Byrd, the Respondent's husband, recognized by Investigator

Williams, standing behind the dog pen. They observed him in that location

attempting to cut down several plants which were growing there. Deputy Morgan

stopped Mr. Byrd from cutting any other plants and removed him from the

immediate area. He was ultimately taken into custody that day. The plants he

was attempting to cut down proved to be cannabis plants.

8. Investigator Williams and Deputy Morgan observed 13 cannabis plants

growing in that location behind the dog pen. Most of the plants were

approximately 10-12 feet tall. Investigator Williams took samples from the

grown plants, and a laboratory analysis proved the plants to be cannabis and

that the samples taken totaled 27.3 grams of cannabis.

9. The cannabis plants were in plain view from the residence. They were

tall enough to be observed over the top of the dog pen, which lay between the

back wall and back door of the residence, the site where the plants were growing

and immediately adjacent to it. Deputy Morgan described the area where the

cannabis was located as being in a clear, open area with grass but no high weeds

which would conceal the cannabis from the plain view from the rear portion of

the residence.

10. Investigator Williams has received some training in the growth rate of

cannabis plants so that he could make a somewhat educated estimate of the age of

the plants found behind the dog pen. He estimates that they could have grown to

a height of 10-12 feet in approximately 60 days, depending upon climatic

conditions, care and maintenance, and the amount of fertilization they received.

11. The mature plants, as well as the small plants, discovered growing

adjacent to the dog pen, would in Investigator Williams' experience, produce

something in excess of 13 pounds of cannabis leaf.

12. Investigator Williams and Deputy Morgan also observed a bucket and

flowerpot in the backyard containing several smaller cannabis plants. These

containers and plants were in plain sight from the rear portion of the

residence.

13. Deputy Morgan escorted Mr. Byrd to the residence and obtained his

consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation,

discovered a partially-smoked cannabis cigarette in a desk drawer in the family

room of the residence and also found rolling papers and marijuana-smoking

paraphernalia in the desk, as well.

14. Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his

wife, the Respondent. In the bedroom closet, he located approximately one-half

pound of marijuana in a grocery bag on the floor in the middle of the closet.

In the closet were both male and female clothing, with each spouse having a

designated side of the closet for their personal clothing and other items. The

middle of the closet contained a filing cabinet, which was for the Respondent's

use. A laboratory analysis determined that the bag found on the closet floor

contained approximately 118 grams of cannabis.

15. Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the

cannabis found belonged to him and that smoking cannabis was a bad habit he

acquired during his service in the Vietnam War. He stated to them that he grew

the cannabis for personal consumption and was not engaged in the sale or

distribution of it. He stated that he smoked cannabis but that his wife, the

Respondent, did not. He never stated to law enforcement officers that the

Respondent had knowledge of the cannabis in the residence and on the surrounding

curtilage.

16. The Respondent was not present at the residence that day when the

officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force

Base in Valdosta, Georgia, at the time and only learned of her husband's arrest

and the incident when she returned late that afternoon. She learned of it from

her father or daughter, who also resided on the premises. There is a separate

mobile-home residence on the same parcel of property as the house in which the

Respondent and her husband reside. Although the officers, on the day in

question, interviewed Mr. Moore, the Respondent's father, who resided in the

mobile home, they never questioned the Respondent and charged no one other than

James Byrd.

17. The Respondent was terminated from her position with the sheriff's

office on approximately July 31, 1992 because of the above-described incident.

After her termination from her job with the sheriff's office, the charges

against her husband, James Byrd, were "nol prossed".

18. The Respondent and Mr. Byrd have been married for approximately 35

years. They have resided in Taylor County since November 1, 1979 and have

resided in the same residence where the cannabis was found and shared the

bedroom and closet where some of it was found since that time, including on and

around the date in question. The Respondent was not a record title holder of

the premises on which the cannabis was found but considered herself as having a

practical ownership interest in the residence.

19. Despite his statement to law enforcement authorities that he had had

the habit of smoking cannabis since returning from the Vietnam War, the

Respondent denied knowledge of her husband's cannabis habit. Although they had

been married for 35 years and resided in the same residence, including at the

times when the marijuana in question was placed in the residence and grown in

the backyard of the residence, the Respondent maintains that she had no

knowledge of its presence on the premises. She maintains that she had no

knowledge of her husband's cultivation and use of marijuana.

20. Neither the Respondent's husband nor any other witness testified in

corroboration of the Respondent's denial of knowledge of the presence of

cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd

commonly cared for the dogs which are normally kept in the dog pen, and the

Respondent seldom went to that vicinity of the backyard, the marijuana plants

growing adjacent to the dog pen were in plain view from the rear portion of the

house itself.

21. The Respondent's testimony is the sole testimony that is exculpatory.

She is an "interested witness" testifying on her own behalf, in a proceeding

where she can potentially lose the valuable right to practice her livelihood.

In consideration of the totality of the evidentiary circumstances and the

demeanor of the witnesses, it is found that, indeed, she knew of the presence of

the growing marijuana on the premises and the marijuana which was found inside

the residence. It simply strains credulity beyond acceptance that she could

live with her husband in the same residence, in the same bedroom and use the

same closet for a substantial period of years and not know of the marijuana

smoking habit he freely admitted to and his activities involved in growing

marijuana in plain sight on their marital premises.

22. In addition to the Respondent having no record of any criminal or

administrative offense, the above-found misconduct was not facilitated by the

Respondent's official authority nor did it occur while she was performing her

duties. There was no damage or danger caused to others by her conduct. The

Respondent gained no pecuniary benefit from the misconduct and its effects,

through penalties, can obviously damage her livelihood, which is already the

case. Finally, her employing agency has already imposed the discipline of

termination approximately three and one-half years ago. Rule 11B-27.005(6)(a-

v), Florida Administrative Code.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.57(1), Florida

Statutes.

24. Section 943.13, Florida Statutes, establishes the minimum

qualifications for certification as a law enforcement officer in Florida, as

pertinent hereto, at Subsection (7):

(7) Have a good moral character as determined

by a background investigation and the procedures

established by the commission.

25. Section 943.1395(7), Florida Statutes, establishes the penalties which

may be imposed against an officer for violating the "good moral character"

standard embodied in Section 943.13(7), Florida Statutes. That paragraph

provides that upon a finding by the Commission that a certified officer has not

maintained good moral character, as defined in rules adopted by the Commission,

establishing statewide standards, then an order may be entered imposing the

penalties of revocation, or suspension for a period not to exceed two years, or

placement on probationary status subject to terms and conditions imposed by the

Commission.

26. Rule 11B-27.0011(4), Florida Administrative Code, provides that any of

the penalties enumerated in Subsection 943.1395(6) or (7), Florida Statutes, may

be imposed for a certified officer's failure to maintain good moral character.

"Good moral character" is defined as the perpetration of an act which would

constitute any felony offense, whether criminally prosecuted or not, or the

perpetration by the officer of an act which would constitute certain

misdemeanors or criminal offenses, whether criminally prosecuted or not,

enumerated in Subparagraph (b) of this rule, including Sections 893.13(1)(a)3.,

(1)(d)3., (1)(g), (2)(a)3., (3), (5)(c), (6)(b), (7)(b), which relate to

possession of a controlled substance. Thus, the rule defines failure to

maintain good moral character in terms of the possession of a controlled

substance, as defined in Section 893.13, as well as Rule 11B-27.00225, Florida

Administrative Code. Specifically, Section 893.13(1)(a), Florida Statutes,

prohibits the unlawful possession of more than 20 grams of cannabis and states

that any person in violation of Section 893.03(1)(c), Florida Statutes, commits

a felony of the third degree. Thus, the possession of more than 20 grams of

cannabis in the subject situation, which was proven, constitutes an act which

would be a felony of the third degree, whether or not it is prosecuted, as

envisioned in the definition of "good moral character" in the above Rule 11B-

27.0011(4), Florida Administrative Code.

27. In the case of Zemour, Inc. v. Division of Beverage, 347 So.2d 1102

(Fla. 1st DCA 1977), a beverage-license applicant was denied a license after a

finding that the owner of the establishment was not of good moral character.

The definition of moral character enunciated by the court is significant and

applicable to this case:

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 and

establishes the quality generally acceptable

to the populace for positions of trust and

confidence.

28. Similarly, in Florida Board of Bar Examiners Re: G.W.L., 364 So.2d

454 (Fla. 1978), the Supreme Court of Florida stated:

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.

See also White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).

29. In Brown v. State, 412 So.2d 420 (Fla. 4th DCA 1982), in facts similar

to the instant case, the Fourth District Court of Appeal affirmed the conviction

of a defendant who was convicted of possession of more than five grams of

marijuana. The Court stated the general rule concerning the necessary proof of

knowledge of a defendant, stating:

If the area in which a contraband substance

is found is within the exclusive possession

of the accused, his knowledge of its presence,

and his ability to maintain control over it,

may be inferred. If the area is only in his

joint possession, his knowledge of the pre-

sence of the contraband on the premises and

his ability to maintain control over it will

not be inferred but must be established by

other proof. This proof may consist of

circumstantial evidence from which a jury

might properly infer that the accused had

knowledge of the presence of the contraband

and an ability to control it.

30. In Brown, a court determined that a jury could reasonably infer that

the defendant had dominion and control over the controlled substances where the

defendant was the owner of the house and that the defendant lived literally in

the midst of all of the seized drugs and paraphernalia.

31. The Florida Supreme Court, in affirming Brown, went further in

determining that the trier of fact could reasonably determine constructive

possession. The Court stated:

In the instant case the knowledge element

is met because the contraband was in plain

view in common areas throughout the house.

The dominion and control element is met be-

cause Brown, as resident owner of his home,

had control over the common areas. Therefore,

the elements of knowledge and control have

been satisfied, and, as the district court

found, the facts presented at trial were

sufficient to create a jury question as to

constructive possession.

32. In the instant situation, although the Respondent was not present when

the contraband was found, the cannabis plants found in the backyard had clearly

been there at least two months, judging from the size they had obtained. It is

reasonable to infer that they were there at the same time as the Respondent,

since she was a permanent inhabitant of the premises and had only left the

premises that morning.

33. The evidence presented by the Respondent in the form of her own

testimony that she had no knowledge of the presence of cannabis is wholly

insufficient to advance her case in that respect. The Respondent is facing the

revocation of her certificate, which is the valuable right to practice her

livelihood. This revocation would preclude her from being employed within the

field permanently. This raises such an interest in the outcome of the instant

action as to bring into issue the credibility of the Respondent as a witness

when she testifies in this uncorroborated manner, in the face of contrary

circumstantial evidence. It is noteworthy that no other person was advanced to

testify in corroboration of her lack of knowledge of the presence of the

contraband and lack of knowledge of her husband's use of it. Although her

husband stated to law enforcement officers that on the date of his arrest, the

substance in question was his and that his wife did not use it, he did not

testify at the hearing that she had no knowledge of the existence of the

substance on the premises, including in her own closet. See, Colbert v. State,

320 So.2d 853 (Fla. 1st DCA 1975); Pittman v. State, 41 So. 385 (Fla. 1906).

34. Here, the evidence shows, in a clear and convincing way, that the

Respondent was in knowing, actual or constructive possession of more than 20

grams of cannabis. The evidence and above findings showed that the cannabis

plants were discovered approximately 75-100 feet from the Respondent's residence

in plain view, towering 12 feet over a dog pen enclosing the Respondent's

husband's hunting dogs. There were also two containers containing approximately

23 smaller plants located in the middle of the yard, closer to the house, in

plain view. There was a large quantity of cannabis found in a paper bag in the

Respondent's closet which she shared with her husband, on the floor, in the

middle of the closet, next to her own file cabinet. There were rolling papers,

clippers, and partially-smoked cannabis cigarettes in the desk drawer found in

the family room.

35. The Respondent's husband admitted to the law enforcement officers at

the scene that he owned the cannabis plants and the other contraband and

cultivated them for his personal use. He stated that he had been using the

substance since he returned from the Vietnam War. He was married to the

Respondent for all that period of time, approximately 35 years, and had lived in

the same home with her for that period of time, including their present

residence since 1979. The Respondent had received some training in the

identification of controlled substances, including cannabis, although she may

not have actually had training in recognizing it growing in the field. However,

some of it was found in her closet in the type of harvested form which she

clearly had been shown in her training course. It is reasonable under these

circumstances to conclude that she had knowledge of the presence of the cannabis

on the premises she shared jointly with her husband and had knowledge of his use

of it. She "literally lived in the midst of it all". Brown, supra. There is

sufficient evidence to infer that the Respondent had dominion and control over

the jointly-occupied premises, as well.

36. Accordingly, clear and convincing has been advanced which establishes

that the Respondent committed misconduct which, under the cited statutes, the

applicable case law and the above-cited administrative rules, establishes

conduct within the definition of lack of good moral character. The position of

a law enforcement officer, including correction officer, is one of great public

trust. There is no more basic public expectation than that those who are

charged with enforcing and upholding the law must themselves obey the law. City

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

37. The Respondent's misconduct is of a serious nature. Pursuant to

Section 11B-27.005(3)(a), Florida Administrative Code, the penalty guideline for

this offense can include revocation. Because of her previously unblemished

record and her understandable, if inexcusable, reluctance to report her husband

of 35 years, as well as the mitigating factors found in paragraph 22 above, some

mitigation of penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the

evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that the Respondent be found guilty of failure to maintain good

moral character, as required by Subsection 943.13(7), Florida Statutes, and that

her certification be suspended for one year, with one additional year of

probation, as well as such career development training or re-training as the

Commission shall deem appropriate.

DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida.

___________________________________

P. MICHAEL RUFF, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844

Petitioner's Proposed Findings of Fact

1-20. Accepted.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Robert J. Schramm, Esquire

Post Office Box 29

Perry, Florida 32347-0029

A. Leon Lowry, II, Director

Department of Law Enforcement

Division of Criminal Justice Standards

and Training Commission

P. O. Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

CRIMINAL JUSTICE STANDARDS AND TRAINING

COMMISSION

CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION,

Petitioner,

vs. CASE NUMBER: C-2496

DOAH NUMBER: 95-3844

MARY J. BYRD,

Certificate No.: 37015

Respondent.

___________________________/

FINAL ORDER

This matter came before the Criminal Justice Standards and Training

Commission (the Commission) at a public meeting on April 19, 1996, at Altamonte

Springs, Florida. It was Alleged by Administrative Complaint that the

Respondent had violated specified sections of Chapter 943, Florida Statutes, and

Chapter 11B-27, Florida Administrative Code. In accordance with  1 2 0 . 5 7 ( 1 ) ,

Florida Statutes, a formal hearing was held on this matter, and a Recommended

Order was submitted by a Hearing Officer from the Division of Administrative

Hearings (DOAH) to the Commission for consideration. Petitioner filed

exceptions to the Recommended Order, a copy of which is attached and

incorporated herein by reference.

The Commission has reviewed the Administrative Complaint, the Recommended

Order, the exceptions filed by Petitioner, the documentary evidence introduced

at the formal hearing, and other pertinent documents in the case file; has heard

arguments of counsel; and is otherwise fully advised in the matter. The

Commission finds as follows:

I. Standards for Review

Under s 120.57(1)(b)10, Florida Statutes, the Commission may reject or

modify the Hearing Officer's conclusions of law and interpretations of

administrative rules in the Recommended Order. The Commission, however, may not

reject or modify the Hearing Officer's findings of fact unless the Commission

determines from a review of the complete record that 1) those findings of fact

were not based on competent substantial evidence or 2) the proceedings on which

the findings of fact were based did not comply with the essential requirements

of the law.

The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916

(Fla. 1957), defined "competent substantial evidence" to be evidence that is

"sufficiently relevant and material that a reasonable mind would accept it as

adequate to support the conclusion reached.

Additionally, the Commission may not reweigh the evidence, resolve

conflicts in the evidence, judge the credibility of witnesses or otherwise

interpret the evidence anew simply to fit its desired conclusion. Heifetz v.

Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

Nor may the Commission reduce or increase the recommended penalty in the

Recommended Order without first reviewing the complete record. s

120.57(1)(b)10, Florida Statutes.

II. Rulings on Exceptions

1. The Commission accepts Petitioner's first exception and rejects the

Hearing Officer's mixed question of fact and law presented in paragraph 22 of

the Recommended Order. The findings and conclusions in this paragraph do not

address the primary factual dispute raised in this proceeding, that is, whether

the Respondent was in actual or constructive possession of the marijuana plants

found growing on her and her husband's homestead property. Rather, paragraph 22

addresses the Hearing Officer's recommended penalty, which the Commission

rejects under the authority of Criminal Justice Standards and Training

Commission v. Bradley, 596 So.2d 661 (Fla. 1992).

2. Likewise, the Commission accepts Petitioner's second exception and

rejects the Hearing Officer's conclusion of law in paragraph 37 as well as the

Hearing Officer's recommended penalty.

III. Findings of Fact

The Hearing Officer's findings of fact in paragraphs 1-21 of the

Recommended Order are approved, adopted and incorporated herein by reference.

IV. Conclusions of Law

The Hearing Officer's conclusions of law in paragraphs 23-36 of the

Recommended Order are approved, adopted and incorporated herein by reference.

Regarding the appropriate penalty for the Respondent, the Commission

emphasizes that its penalty guidelines in 1 1B-27.005(5), F.A.C., call for a

revocation of an officer's criminal justice certification when that officer has

committed the act of illegal possession of a controlled substance -- the offense

at issue in this matter. For many years now, the Commission has taken a "zero-

tolerance" position regarding those officers who violate the controlled

substances laws in chapter 893, Florida Statutes. Officers who admit or who are

found to have violated the controlled substances laws have uniformly had their

criminal justice certifications revoked.

The Commission agrees with Petitioner that the following aggravating

circumstances outweigh those mitigating circumstances found by the Hearing

Officer: 1) the severity of the Respondent's misconduct, 2) the danger to the

public caused by Respondent's conduct and 3) the deterrent effect to other

criminal justice officers of maintaining the Commission's "zero- tolerance"

policy with regard to illegal use or abuse of controlled substances. See 1 1B-

27.005(6), F.A.C.

The Commission, therefore, chooses to substitute its collective

professional judgment regarding the severity of the Respondent's misconduct and

what constitutes an appropriate penalty for the Hearing Officer's recommended

penalty in the Recommended Order. Criminal Justice Standards and Training

Commission v. Bradley, 596 So.2d 661 (Fla. 1992). The Commission agrees with

Petitioner that the penalty called for in the penalty guidelines -- revocation

of certification -- is indeed the appropriate penalty in this matter. See 1 1B-

27.005(5), F.A.C.

It is therefore ORDERED AND ADJUDGED that the Respondent's above-referenced

criminal justice certification is hereby REVOKED.

This Final Order will become effective upon filing with the Clerk of the

Department of Law Enforcement.

SO ORDERED this 13th day of June,1996.

CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION

_________________________

WILLIAM A. LIQUORI

CHAIRMAN

NOTICE

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED

BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68,

FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE

DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489,

AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE

DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9. 110, FLORIDA RULES OF

APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE

DATE THIS ORDER IS RENDERED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished to Robert J. Schrainm. Esquire, P.O. Box 29 Perry, Florida 32347 by

U.S. Mail on or before 5:00 P.M., this 13th day of June, 1996.

___________________

Brenda S. Miller

cc: Taylor County Sheriff's Office