STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5204

)

FELIX A. DIAZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 27, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Paul Sack, Esquire

5975 Sunset Drive

Suite 701

Miami, Florida 33143 STATEMENT OF THE ISSUES

1. Whether the Respondent committed the offenses described in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On June 26, 1990, Petitioner filed an Administrative Complaint against Respondent which contained the following allegations:

   
   

   1. Respondent was certified by the Criminal Justice Standards and Training Commission on May 12,1986 and was issued Certificate Number 19-86-502-02.

   2. On or about September 29, 1989, Respondent, Felix A. Diaz, did then 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 did introduce the said substance into his body.

      
      

   3. The actions of the Respondent did violate the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B-27.0011(4)(d), 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.

Respondent thereafter requested a formal hearing on the allegations made against him. On August 17, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested. Following two continuances granted at Respondent's request, the hearing was finally held.

At hearing, the parties stipulated to various facts. In addition, Petitioner presented the testimony of three witnesses: Alexander Greene, the Personnel Manager of Dade Correctional Institution; Israel Sanchez, a chemist employed by Toxicology Testing Service; and Dr. Terry Hall, the laboratory director at Toxicology Testing Service. Petitioner also offered one exhibit into evidence, which was admitted by the Hearing Officer. The only evidence presented by Respondent was his Dade Correctional Institution personnel file. Like Petitioner's lone exhibit, Respondent's exhibit was received into evidence.

The Hearing Officer advised the parties on the record at hearing that their post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on April 4, 1991. Petitioner filed a proposed recommended order on Monday, April 15, 1991. Petitioner's proposed recommended order contains proposed findings of fact. All of these proposed findings of fact, with the exception of Finding of Fact 2, have been accepted by the Hearing Officer and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Finding of Fact 2 has been rejected because it is not supported by the greater weight of the evidence. To date, no post-hearing submittal has been filed by Respondent.

FINDINGS OF FACT

Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and issued certificate number 19-86-502-02, which he still holds.

2. Respondent was employed by the Florida Department of Corrections (DOC) as a correctional officer from November 4, 1985, until August 3, 1988. He was initially assigned to the Dade Correctional Institution (DCI). On August 7, 1987, he was transferred to the South Florida Medical and Reception Center (SFMRC). He remained at SFMRC until April 3, 1988, the effective date of his resignation.

   
   

3. On August 28, 1989, Respondent submitted to the DCI Personnel Department an application seeking reemployment as a correctional officer with DOC. As part of the application process, Respondent was required to submit to a drug test, which he did on September 29, 1990.

   
   

4. Respondent had used cannabis on at least one occasion some time within a month or two prior to submitting to this test.

   
   

5. Respondent personally appeared at the laboratory of Toxicology Testing Service in Miami on September 29, 1990. Once at the laboratory, he urinated into a small sterile sample container which was provided to him by Robert McCabe, a laboratory employee.

   
   

6. Immediately after Respondent urinated into the container, he gave the container to McCabe. The container was then sealed with a lid and special tape designed to indicate tampering.

   
   

7. McCabe assigned Respondent's urine sample the unique bar code number 410405 and the unique laboratory reference number 77334. He thereupon placed the container in a storage area in the laboratory.

   
   

8. Later that same day, laboratory employee Yolanda Escobio retrieved the container from the storage area and, after observing that there was no evidence of tampering, broke the seal on the container. Using a sterile pipette, Escobio removed a small portion of urine from the container to conduct an initial immunoassay screening of the urine for the presence of a controlled substance or controlled substance metabolites. Following the completion of the screening, Escobio recapped the container (which contained the remainder of Respondent's urine sample) and returned it to the laboratory storage area.

   
   

9. Neither McCabe, Escobio nor anyone else contaminated or tampered with Respondent's urine sample.

   
   

10. The container was not reopened until October 2, 1989, when laboratory employee Israel Sanchez did so in order to perform additional laboratory testing of the sample.

    
    

11. Sanchez utilized gas chromotography-mass spectrometry, an extremely reliable confirmatory testing method, to verify the results of the immunoassay screen previously performed by Escobio.

    
    

12. Sanchez's testing revealed the presence of cannabinoids in a concentration of 120 nanograms per milliliter.

    
    

13. Cannabinoids are metabolites that are produced when cannabis (marijuana) is introduced into the body.

    
    

14. Cannabis is the only substance known to produce cannabinoids.

15. Toxicology Testing Service sent a written report of the test results to Alexander Greene, the DCI Personnel Manager. Greene received the report on October 16, 1989. Respondent had already been rehired. He had started working for DOC again earlier that very same day.

    
    

16. After learning that Respondent had tested positive for cannabinoids, Greene, accompanied by DCI's Assistant Superintendent, met with Respondent later that day. They advised Respondent of the test results and told him that if he did not resign his position, his employment would be involuntarily terminated. Respondent responded by simply indicating that he would resign. His resignation was effective 5:00 p.m. that day.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Administrative Complaint filed against Respondent which is the subject of the instant case alleges that on or about September 29, 1989, Respondent unlawfully used cannabis (marijuana) and that, in so doing, he violated "the provisions of Section 943.1395(5),(6), Florida Statutes, and Rule 11B-27.0011(4)(d), 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."

    
    

18. Section 943.1395(5), Florida Statutes, provides that "[t]he [Criminal Justice Standards and Training] [C]ommission shall revoke the certification of any [correctional] officer who is not in compliance with the provisions of s. 943.13(1)-(10)."

    
    

19. Section 943.13(7), Florida Statutes, provides that "any person employed or appointed as an officer shall...[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

    
    

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 correctional officer demonstrates a lack of "good moral character" when he 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. The Criminal Justice Standards and Training Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395(5), Florida Statutes, has determined that an individual who engages in the unlawful use of cannabis is not of "good moral character," as required by Section 943.13(7). This interpretation is codified in Florida Administrative Code Rule 11B-27.0011.

22. The evidence adduced in the instant case clearly and convincingly establishes that Respondent engaged in the unlawful use of cannabis on or about September 29, 1989, as alleged by Petitioner. Accordingly, Petitioner has met its burden of proving that Petitioner has not maintained "good moral character," as required by Section 943.13(7), Florida Statutes, and that therefore his certification is subject to revocation pursuant to Section 943.1395(5), Florida Statutes.

    
    

23. Revocation is not the only penalty that the Criminal Justice Standards and Training Commission is authorized to impose upon an officer who has failed to maintain "good moral character" following his certification. Section 943.1395(6), Florida Statutes, allows the Commission to impose lesser penalties than revocation. It provides as follows:

    
    

    Upon the 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 certifi- cation:

    
    

    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 deemed appropriate by the commission.

       
       

    4. Issuance of a reprimand.

       
       

24. As directed by the Legislature in Section 943.1395(7), Florida Statutes, the Criminal Justice Standards and Training Commission has adopted "procedures pursuant to chapter 120 for implementing the penalties provided in subsections (5) and (6) [of Section 943.1395, Florida Statutes]." These procedures are found in Florida Administrative Code Rule 11B-27.005, which provides, in pertinent part, as follows:

    
    

    1. 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), F.S. . . . The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple

       counts of violations of Subsection 943.13(7), F.S., will be grounds for enhancement of penalties. 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), which may be included in the final penalty at the Commission's discretion.

       
       

    2. When the Commission finds that a certi- fied 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 Commis- sion shall be to impose a penalty ranging from suspension to revocation.

       
       

    3. 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:

       
       

       1. Whether the officer used his or her official authority to facilitate the misconduct;

          
          

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

          
          

       3. The officer's employment status at the time of the final hearing before the Commission;

          
          

       4. The recommendations of character or employment references;

          
          

       5. The number of violations found by the Commission;

          
          

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

          
          

       8. The danger to the public;

          
          

       9. The length of time since the violation;

          
          

       10. The length of time the officer has been certified;

           
           

       11. The actual damage, physical or otherwise, caused by the misconduct;

           
           

       12. The deterrent effect of the penalty imposed;

           
           

       13. Any effort of rehabilitation by the officer;

           
           

       14. The effect of the penalty upon the officer's livelihood;

           
           

       15. The penalties imposed for other misconduct;

           
           

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

           
           

       17. The officer's compliance with the terms and conditions of any Commission-ordered probation.

           
           

    4. The Commission may impose one or more of the following penalties, listed in increasing order of severity:

    
    

    1. The issuance of a reprimand.

       
       

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

       
       

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the Commis- sion. The terms and conditions 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 samples and consent to the release and analysis of results of random or scheduled 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 employment; refraining from violations of Subsections 943.13(1)-(10); the payment of restitution for damages or loss created by the officer's misconduct; or any other terms or conditions as appropriate.

       
       

    4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

       
       

    5. Revocation of certification.

    
    

25. In its proposed recommended order, Petitioner argues that "the appropriate penalty in the case at bar is revocation of certification." Having carefully considered the facts of the instant case in light of the provisions of Florida Administrative Code Rule 11B-27.005 cited above, the Hearing Officer agrees with Petitioner, given the seriousness of Respondent's offense and the absence of any compelling, mitigating circumstances justifying the imposition of a less severe penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cannabis on or about September 29, 1989; and

(2) revoking his certification, based on such a finding.

RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991.

STUART M. LERNER

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 23rd day of April, 1991.

COPIES FURNISHED:

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Paul Sack, Esquire 5975 Sunset Drive

Suite 701

Miami, Florida 33143

Jeffrey Long, Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement

Post Office 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.

Docket for Case No: 90-005204

Orders for Case No: 90-005204