STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4537

)

ANTHONY E. RICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on November 27, 1989, in Miami, Florida.

APPEARANCES

FOR PETITIONER: Joseph S. White

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

FOR RESPONDENT: Donna Rice Owens, Esquire

240 Tennessee Street Vallejo, California 94590

STATEMENT OF THE ISSUES

The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner against Respondent on June 9, 1989. Respondent requested a formal hearing on July 26, 1989. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer on August 22, 1989, and assigned to the undersigned on August 25, 1989. A formal hearing was scheduled for November 27, 1989, pursuant to a Notice of Hearing issued on September 13, 1989.

At the formal hearing, Petitioner presented the testimony of seven witnesses, two of which were rebuttal witnesses, and offered three exhibits for admission in evidence. Petitioner's Exhibits 1 and 3 were admitted in evidence without objection. Petitioner's Exhibit 2 was admitted in evidence over objection. Petitioner's Exhibit 4 was identified but not offered for admission in evidence.

Respondent testified in his own behalf and presented the testimony of four witnesses. Respondent identified 17 exhibits but offered only 12 exhibits for admission in evidence. Respondent's Exhibit 14 was admitted in evidence without objection. Respondent's Exhibits 2-4, 6, 10 and 11 were admitted in evidence over objection . Respondent's Exhibits 5, 7-9, and 17 were not offered for admission in evidence. Petitioner's objection to the admissibility of Respondent's Exhibits 15 and 16 was sustained. Ruling was reserved on Respondent's Exhibits 1, 12, and 13 for disposition in this Recommended Order..

A transcript was requested by Petitioner and filed with the Division of Administrative Hearings on June 18, 1990. Proposed findings of facts and conclusions of law were timely filed by Petitioner on May 9, 1990, and by Respondent on May 11, 1990.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport.

   
   

2. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988.

   
   

3. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed.

   
   

4. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box.

   
   

5. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact.

   
   

6. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez.

7. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test.

   
   

8. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use.

   
   

9. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988.

   
   

10. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml.

    
    

11. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml.

    
    

12. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml.

    
    

13. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988.

    
    

14. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

16. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks to take action that is penal in nature, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. Ruling was reserved at the formal hearing on Petitioner's objection to the admissibility of exhibits pertaining to results from other drug tests taken by Respondent on the grounds that such results are hearsay. Petitioner's objection is overruled. The results of Respondent's other drug tests are admissible hearsay to explain or corroborate Respondent's direct testimony that he does not use drugs or alcohol. Subsection 120.58(1) (a), Florida Statutes.

    
    

18. Ruling was reserved at the formal hearing on Petitioner's objection to the testimony of Tina Luis and Petitioner's Motion to Strike. Respondent called Tina Luis to testify that she used cocaine the day before Respondent's physical examination on March 2, 1988, and that Respondent kissed her seconds after she ate approximately one gram of cocaine. During cross examination, Ms. Luis asserted her constitutional right against self incrimination and refused to answer questions from Petitioner. Petitioner's objection is sustained and the Motion to Strike is granted.

    
    

19. The Administrative Complaint alleges that Respondent's actions violated the provisions of Subsections 943.1395(5) and (6), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4) (d) in that Respondent failed to maintain the qualifications established in Subsection 943.13(7). Subsection 943.13(7) requires officers to:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

    Subsection 943.1395(5) in relevant part provides that:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10)

    
    

    Subsection 943.1395(6) requires the definition of "good moral character" to be adopted by rule, and requires that the definition adopted by rule be established as a statewide standard.

    
    

20. The phrase "good moral character" is defined in Florida Administrative Code Rule 11B-27.0011(4) for the purpose of implementing disciplinary action upon a Florida law enforcement officer. The definition of "good moral character" is defined in relevant part as follows:

    (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 a 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.

    
    

    Rule 11B-27.00225(3) (b) provides in relevant part:

    
    

    (b) The immunoassay screen employed. at minimum, [must) test for the presence of the following controlled substances or classes of controlled substances or their metabolites and [must be] capable of detection at the following minimum levels:

    Substance Nanograms per Milliliter

    * * *

    5. Cocaine or Cocaine Metabolite 300

    
    

21. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. The court defined 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.

    
    

22. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Florida Supreme Court stated that a finding of lack of "good moral character" includes:

    
    

    ... 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.

    
    

23. Petitioner did not demonstrate by clear and convincing evidence that Respondent lacked "good moral character". The totality of the evidence in this proceeding demonstrated that Respondent's positive test for cocaine on March 2, 1988, was an anomaly in Respondent's career and is inconsistent with the unlawful use of cocaine.

24. During seven years of annual physicals and eight random drug tests, Respondent never tested positive for drugs before or after March 2, 1988. Upon being informed that he had tested positive for cocaine, Respondent immediately underwent two separate drug tests nine days after he tested positive for cocaine. Respondent's performance evaluations were never below satisfactory. Respondent's record does not demonstrate the conduct of one who unlawfully used cocaine within the meaning of Florida Administrative Code Rule 11B-27.001(4) (d).

    
    

25. Respondent has consistently observed the difference between right and wrong, the rules of good conduct, and has consistently practiced that conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. Zemour, Inc., 347 So.2d at 1105. Respondent's acts and conduct for the seven years before March 2, 1988, and since then, would not cause a reasonable man to have substantial doubts about Respondent'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 at 458.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division Of Administrative Hearings

this 7th day of September, 1990.

ENDNOTES

1/ All references to chapters, sections, and subsections are to Florida Statutes (1989) unless indicated otherwise.

2/ Respondent was terminated on September 15, 1988, and subsequently reinstated pursuant to arbitration.

3/ Respondent was terminated from his employment on September 15, 1988, and subsequently reinstated pursuant to arbitration. Random drug testing was a condition of reinstatement.

APPENDIX

The parties have submitted proposed findings of fact.

It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-2 Accepted in Finding 1

3 Accepted-in Finding 2

4-5 Accepted in Finding 3

6-9 Accepted in Finding 4

10-11 Accepted in Finding 5

1. Accepted in Finding 6

2. Accepted in Finding 7

14-18 Accepted in Finding 8

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Rejected as irrelevant and immaterial

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Mr. James T. Moore Commissioner

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Donna Rice Owens, Esquire

240 Tennessee Street, Suite 196 Vallejo, California 94590

Joseph S. White

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

Anthony E. Rice

Post Office Box 68-1222 Miami, Florida 33161

Docket for Case No: 89-004537

Orders for Case No: 89-004537