STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7186

)

JAMES E. LYONS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 8, 1991, in Orlando, 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: James E. Lyons, Jr.

415 18th Street Southeast Winter Haven, Florida 33880

STATEMENT OF THE ISSUES

An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character".

The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989.

The issues are whether those violations occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

James E. Lyons responded to the complaint with an election of rights requesting a formal hearing. After referral to the Division of Administrative Hearings (DOAH) the hearing was scheduled, but was continued once, when Petitioner's material witness became unavailable due to late-term pregnancy.

At the hearing Petitioner presented the testimony of Valerie L. Davies, Jeff Koska, Michael Wofford, Jr., Billy Young, Timothy Pemberton, Phillip Shimer, and (rebuttal) James P. Donn. Petitioner's two exhibits were received without objection, and included a stipulation by the parties and a deposition of Vincent Alexander Pryce.

Respondent participated through cross-examination and testified in his own behalf.

A transcript was filed and Petitioner submitted proposed findings of fact and conclusions of law, which findings are substantially adopted here.

FINDINGS OF FACT

1. James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number

   02-86-002-02.

   
   

2. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit.

   
   

3. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers.

   
   

4. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird.

   
   

   Respondent was not a participant in the detail to which the two officers were assigned that evening.

   
   

5. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes.

   
   

6. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over.

7. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs).

   
   

8. On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation.

   
   

9. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store.

   
   

10. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away.

    
    

11. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled.

    
    

12. The story would be more plausible if it were not for ensuing events.

    
    

    After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police.

    
    

    He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet.

    
    

13. The parties' prehearing stipulation establishes the following:

    
    

    1. On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.]

    2. At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital.

       
       

    3. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely

       identifiable as the Respondent's urine sample.

       
       

    4. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital

       Toxicology Laboratory by Mr. Wallace.

       
       

    5. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza.

       
       

    6. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed an initial chemical screen for the purpose of determining if there was evidence of controlled substances or their

       metabolites in the Respondent's urine sample.

       
       

    7. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample.

       
       

    8. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup.

       
       

14. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine.

    
    

    Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine.

    
    

15. Both benzoylecgonine and ecgonine are unique metabolites of cocaine.

    
    

    The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated

    with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding.

    
    

16. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement.

    
    

    Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops.

    
    

17. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

19. Section 943.13, F. S., establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    
    

    ...a good moral character as determined by a background investigation under procedures established by the [Criminal Justice Standards] Commission.

    
    

20. Section 943.1395(5), F.S., requires:

    
    

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

    
    

21. Section 943.1395(6), F.S., (1988) establishes certain lesser penalties for application in appropriate cases when the Commission finds that a certified officer has not maintained good moral character.

    
    

22. Rule 11B-27.0011(4), F.A.C., provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:

    
    

    1. 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 a good moral character, as required by Section 943.13(7), is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

    * * *

    1. The perpetration by the officer of an act or conduct which causes substantial doubts concerning an 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, or

       
       

    2. The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225.

    
    

23. Rule 11B-27.00225(3)(b)5., F.A.C., specifies cocaine or cocaine metabolite among the enumerated controlled substances.

    
    

24. Section 893.13(1)(a)1., F.S., makes the unlawful purchase of cocaine a second degree felony. Section 777.04(1), F.S., states that the attempt to commit a criminal offense by doing an act toward the commission of the offense is itself a crime. Attempted purchase of cocaine is classified as a third degree felony. Section 777.04(4)(c), F.S..

    
    

25. Petitioner met its burden of proving by clear and convincing evidence that Respondent committed the alleged violations, as required by Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

26. Respondent violated Rule 11B-27.0011(4)(a), F.A.C., by committing an act which constituted a felony offense, specifically, the unlawful attempted purchase of cocaine. This is true, notwithstanding the Respondent's acquittal of a parallel criminal charge. Collateral estoppel applies when an identical issue has been litigated between the same parties. Walley v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671 (Fla. 1st DCA 1987); CJSTC v. Darrell

    B. Daniels, DOAH case number 88-4787.

    
    

27. The Respondent, by using his position as an officer to attempt to create the appearance that his actions were part of a legitimate investigative effort on his part, compromised the public trust. The Respondent took advantage of his assignment as a vice investigator to move among drug dealers, not in an effort to intervene in their enterprise, but rather to participate in it. This gives rise to substantial doubts about the Respondent's honesty, fairness, and respect for the law. Accordingly, there is competent substantial evidence to support the conclusion that the Respondent violated Rule 11B-27.0011(4)(c), F.A.C.

    
    

28. The evidence regarding analysis of the Respondent's urine sample supports a finding that the Respondent illicitly used cocaine. Other than to deny drug use, the Respondent introduced no evidence to suggest any reason to doubt the validity of the tests. The Respondent failed to offer any evidence which would provide a legitimate explanation for the test results. The integrity of the chain of custody of the Respondent's urine sample was established by testimony and was largely a matter of stipulation.

29. The gas chromatography/mass spectrometry confirmation method used here was found to be 99.99% accurate in the identification of drugs and metabolites in CJSTC v. Virginia M. Newberry, DOAH case number 89-4535, CJSTC v. Henry T. Williams, DOAH case number 89-343 and CJSTC v. Milton Franklin, DOAH case number 89-0715. The test is approved in Rule 11B-27.00225, F.A.C., as a legitimate testing method for law enforcement agencies to use in drug testing of applicants for employment. Additionally, the Respondent's urine sample was lawfully obtained from him by his employer based upon a reasonable suspicion of his illegal drug use. City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1985); Fowler v. Unemployment Appeals Commission, 537 So.2d 162 (Fla. 5th DCA 1989). Clear and convincing evidence established that the Respondent unlawfully used cocaine in violation of Rule 11B-27.0011(4)(d).

    
    

30. As suggested by counsel for Petitioner, the appropriate penalty in this case is revocation of certification. In CJSTC v. Virginia M. Newberry, (supra), CJSTC v. Harry T. Williams, (supra), CJSTC v. Willie C. Cunningham, DOAH case number 89-3310, CJSTC v. Milton Franklin, (supra) and CJSTC v. Verdyce Clarke, DOAH case number 88-6318, hearing officers concluded that unlawful cocaine use was sufficiently egregious misconduct to merit revocation. In Newberry, the hearing officer reached this conclusion despite the officer's fourteen year exemplary record, numerous commendations and the lack of prior disciplinary actions against the officer. In Franklin, the hearing officer recommended revocation despite the officer's twenty year discipline-free service record. In these cases, the Commission has established its policy and no basis is found to deviate from that policy.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate.

RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

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 May, 1991.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

James E. Lyons

415 18th Street, S.E. Winter Haven, FL 33880

Jeffrey Long, Director Criminal Justice Standards

and Training Commission

P.O. Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Dept. of Law Enforcement

P.O. 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.

Docket for Case No: 90-007186

Orders for Case No: 90-007186