STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4535

)

VIRGINIA M. NEWBERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 14, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: H. T. Smith, Esquire

1017 N.W. 9th Court Miami, Florida 33136

STATEMENT OF THE ISSUES

Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character by unlawfully being in actual or constructive possession of cocaine on or about May 9, 1988, and by introducing cocaine into her body on or about that date.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint on June 9, 1989, seeking to revoke the law enforcement officer certification that had been previously issued to Respondent, Virgina M. Newberry. The Administrative Complaint alleges that the Respondent had failed to maintain the qualification of good moral character by having cocaine in her actual or constructive possession, on or about May 23, 1988, and by introducing cocaine into her body on or about that date. By her Election of Rights form, Respondent denied that

she failed to maintain good moral character and timely requested a formal hearing of the Administrative Complaint.

Respondent's motion to dismiss the pending proceedings, premised on administrative proceedings brought by the Dade County School Board, was denied. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment.

At the final hearing, Petitioner presented the testimony of nine witnesses, including one rebuttal witness, and introduced eight documentary exhibits which were accepted into evidence. Respondent testified on her own behalf, called one other witness, and introduced two documentary exhibits. Respondent's tender of Mr. Warren Holmes as an expert witness in the field of polygraph examinations was rejected. All exhibits were accepted into evidence. During the course of the hearing, Petitioner's motion to correct a typographical error in Paragraph 2 of the Administrative Complaint by changing the word "include" as found in Paragraph 2 to the word "introduce" was granted.

A transcript of the proceeding has been filed. Neither party filed a timely post-hearing submittal.

FINDINGS OF FACT

1. On November 15, 1974, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-11734 was duly issued to Respondent by Petitioner.

   
   

2. Respondent is a sworn police officer who has been employed as an investigator in the Special Investigations Unit of the Dade County School System for over 14 years. The Special Investigations Unit is a law enforcement agency consisting of approximately 56 sworn officers whose duties include follow-up investigations on internal issues and the investigation of crimes that are committed on School Board property. There is also a uniformed division which patrols certain of the schools in the Dade County system. The sworn officers of the Special Investigation Unit are required to be certified by Petitioner even though they are employed by the Dade County School Board as School Board employees.

   
   

3. The sworn officers of the Special Investigation Unit are represented for collective bargaining purposes with the Dade County School Board by the Police Benevolent Association. The labor contract that was negotiated on behalf of Respondent and her fellow sworn officers of the Special Investigative Unit require that each sworn officer take an annual physical to include the giving of a urine sample from the officer to be analyzed for the presence of controlled substances.

   
   

4. Respondent was directed by her employer to present herself on May 9, 1988, for an annual physical examination at Mount Sinai Medical Center. Respondent was aware that an annual physical, including a drug test would be required of her. She was given over two weeks advance notice of the exact date the physical examination would occur.

5. On May 9, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by her employer. She was given a small sterile sample bottle in which she produced a sample of her urine as instructed. Nurse Cheryl Cain, the Mount Sinai employee responsible for the collection of the urine sample from Respondent, received the urine sample from Respondent and promptly divided the urine sample into two smaller sterile bottles and sealed each of the smaller bottles with its cap and with evidence tape. Nurse Cain followed Mount Sinai's procedures in collecting and sealing the urine sample.

   
   

6. The sealed bottles containing Respondent's urine sample were labeled so that each bottle was identified as containing Respondent's urine sample. An identifying series of numbers, referred to as that bottle's bar code, was placed on each of the bottles. Bar code number 118856 was placed on one bottle and bar code number 110783 was placed on the other bottle. The two bottles were then placed in a locked box. On May 9, 1988, the sealed bottles containing Respondent's urine sample were picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the two specimen bottles could not be tampered with without detection.

   
   

7. On May 19, 1988, sample bottle 118856 was opened by a laboratory analyst employed by Toxicology Testing Service. A small sample of Respondent's urine sample, referred to as an aliquot, was removed from sample bottle 118856 with a sterile disposable plastic pipette and placed in a sterile disposable cup for analysis.

   
   

8. The aliquot of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for a cocaine metabolite, which is a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. This screening procedure, known as an emit test, produced a result of 71 on the first screening and a 69 when a separate aliquot from sample 118856 was tested. The emit test is conducted using an Hitachi 705 machine, a piece of equipment that is widely used in the industry. As calibrated, a score of 50 is considered a positive score for cocaine. The purpose of the emit test is to screen those samples that will be later analyzed by gas chromatography mass spectrometry method of testing urine samples.

   
   

9. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99.99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The confirmatory analysis confirmed that Respondent's urine sample was positive for the presence of a cocaine metabolite that can only be produced through the ingestion of cocaine.

   
   

10. Subsequent testing on June 3, 1988, by Toxicology Testing Services of aliquots from sample bottle 110783, followed the same procedures as those followed for the analysis of aliquots from sample bottle 118856 and produced similar, positive results for the presence of the cocaine metabolite.

    
    

11. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that sample bottle 118856 and sample bottle 110783 had

    not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the aliquots from Respondent's urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled "Controlled Substance Testing Procedures".

    
    

12. Respondent denies that she has ever used or has unlawfully possessed cocaine. Respondent handles cocaine from time to time in the execution of her official responsibilities, but she was unable to point to an incident that may have produced the positive test results through incidental contact with cocaine. Although samples of the currency in use in South Florida have tested positive for the presence of cocaine, Respondent would not have ingested sufficient quantities of cocaine from currency to produce the level of the cocaine metabolite reflected by the testing.

    
    

13. On May 23, 1988, Respondent was advised by her supervisor that she had tested positive for cocaine. Respondent immediately gave another urine sample that tested negative for cocaine. Respondent had attended training sessions that taught that cocaine usually cleared the human body after 72 hours. This is a misconception. The speed with which the cocaine metabolite clears the human system depends on many variable factors, including the general physical condition of the person involved, the amounts of liquids consumed by the person, and the amount of exercise by the person. Cocaine metabolite can be detected in the human body more than 72 hours after its ingestion.

    
    

14. Respondent failed to offer any plausible explanation for the positive results of cocaine being detected in her system that would permit any conclusion other than the conclusion that she had voluntarily ingested cocaine.

    
    

15. Respondent has been an exemplary employee since her initial employment with the Special Investigative Unit. She has never been suspected of drug use by her superiors. None of her fellow officers ever reported that they suspected Respondent of drug use. Respondent has had several commendations during her term of service. Her performance evaluations have always been satisfactory or higher.

    
    

16. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment. The finding by the previous hearing officer that the tests were not reliable is not binding here and is contrary to the greater weight of the evidence in this case.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

18. Section 943.13(7), Florida Statutes, requires that a law enforcement officer possess good moral character.

19. It is Petitioner's burden to prove by clear and convincing evidence that Respondent has failed to maintain good moral character. Ferris v. Turlington, 510 So.2d, 292 (Fla. 1987).

    
    

20. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105, (Fla. 1st DCA 1977), the court discussed the meaning of moral character as follows:

    
    

    Moral character ... 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 qualities generally acceptable to the populace for positions of trust and confidence.

    
    

21. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458, (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    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 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.

    
    

22. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of disciplinary proceedings involving Florida law enforcement officers. The rule states, in pertinent part, as follows:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5)or(6), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

    * * *

    (d) The unlawful use of any of the

    controlled substances enumerated in Rule 11B- 27.00225.

    
    

23. Rule 11B-27.00225(3)(b)(5), Florida Administrative Code, specifies cocaine as among the controlled substances whose use evidences a certified officer's failure to maintain good moral character under Rule 11B-27.0011(4)(d), Florida Administrative Code.

    
    

24. Petitioner has established by clear and convincing evidence that Respondent's urine sample contained a cocaine metabolite that can be produced in the human body only through the ingestion of cocaine. In the absence of plausible evidence to the contrary, it is concluded that Respondent voluntarily ingested cocaine and thereby failed to maintain good moral character, as that term is defined by administrative rule and by pertinent court decisions.

25. Section 943.1395(5),(6), Florida Statutes, provide, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of an officer who fails to comply with s. 943.13(1)-(10)....

    2. Upon a finding by 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 certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. 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.

       3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

          
          

26. Rule, 11B-27.005, Florida Administrative Code provides, in pertinent part, as follows:

    
    

    1. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines

       * * *

       (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 suspension to revocation.

       
       

27. Rule, 11B-27.005(4), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. 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 circumstances:

    * * *

    (f) The number of prior disciplinary actions taken against the officer by the Commission;

    * * *

    (j) The length of time the officer has been certified;

    
    

28. In considering the penalty to be imposed against Respondent, it is appropriate to consider as mitigating circumstances, pursuant to Rule 11B- 27.005(4)(f) and (j), Florida Administrative Code, that there was no evidence that Petitioner had taken prior disciplinary action against Respondent and that she has been an exemplary employee for over 14 years.

    
    

29. Notwithstanding those mitigating circumstances, the use of cocaine by a law enforcement officer is serious misconduct that dictates the recommendation which follows.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement,

Criminal Justice Standards Training Commission, enter a final order which finds

that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer.

DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida.

CLAUD B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

H. T. Smith, Esquire 1017 N.W. 9th Court Miami, Florida 33136

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-004535

Orders for Case No: 89-004535