STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7860

)

JAMES L. JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Ft.

Lauderdale, Florida, on March 26, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

FOR RESPONDENT: Mr. James L. Jackson, pro se

1701 N.W. 3rd Street, Apartment 3 Fort Lauderdale, FL 33311

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.

PRELIMINARY STATEMENT

This is a disciplinary case in which the Respondent has been charged by Administrative Complaint with violation of the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code, on the basis of allegations that he 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. The factual basis for the charge consists of allegations that the Respondent was unlawfully and knowingly in actual or constructive possession of a controlled substance and introduced such substance into his body.

At the hearing on March 26, 1991 the Petitioner presented the testimony of three witnesses, one of whom is an expert in the area of testing for the presence of controlled substances and other drugs. The Petitioner also offered four exhibits, all of which were received in evidence. The Respondent testified on his own behalf and offered three exhibits, all of which were received in evidence. The Respondent did not call any additional witnesses. Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on April 22, 1991, and the parties were allowed until May 2, 1991, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law.

Specific rulings on all findings of fact proposed by the Petitioner are contained in the appendix hereto. The Respondent did not file a proposed recommended order or any other post-hearing document.

FINDINGS OF FACT

Based on the evidence received at the formal hearing, the following facts are found:

1. The Respondent, James L. Jackson, was certified by the Criminal Justice Standards and Training Commission as a correctional officer in 1981. At all times relevant and material to these proceedings, the Respondent was a correctional officer sergeant employed by the Broward County Sheriff's Department.

   
   

2. In late July or early August of 1989, during the course of investigating illegal conduct by other employees of the Broward County Sheriff's Department, a Detective Dansky, then working in the Internal Affairs Office of the Broward County Sheriff's Department, was told by one of the admitted wrongdoers that he had heard that several employees of the Sheriff's Department, including the Respondent, were involved in criminal activity related to the possession, use, or distribution of controlled substances. Shortly after receiving that information, Detective Dansky contacted the Respondent and requested that he provide a statement in response to the allegation that he had been involved in illegal drug activity.

   
   

3. On August 8, 1989, the Respondent reported to the Internal Affairs Office, where he met with Detective Dansky. After being advised of the specific allegations that had been made against him, the Respondent gave a statement to Detective Dansky. The Respondent's statement consisted of a denial of all allegations of misconduct.

   
   

4. After taking the Respondent's statement, Detective Dansky offered the Respondent the option of furnishing a urine sample for drug testing in order to resolve the issue. The Respondent voluntarily agreed to provide a urine sample. Detective Dansky initiated the drug testing process by asking the Respondent if he had been using any drugs that might show up on the test. The Respondent stated that he had not used any drugs.

   
   

5. Shortly thereafter, the Respondent provided a urine sample. The sample was collected under circumstances which verified that the sample was actually provided by the Respondent and the sample was promptly sealed in a manner which made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was also given a unique identifying number. The urine sample was properly protected until it was turned over to the forensic laboratory, where it was received in good condition with no evidence of tampering.

6. At the laboratory the Respondent's urine sample was kept in a secure manner during the testing process. At the laboratory, adequate procedures were used to ensure that the Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the sample had not been tampered with. A portion of the Respondent's urine sample was submitted to an immunoassay screening analysis. The screen analysis indicated the presumptive presence of benzoyleconine, a unique metabolite of cocaine. Following the screen analysis, a second portion of the Respondent's urine sample was submitted for analysis by means of gas chromatography/mass spectrometry, which is the most reliable and accurate method for confirmatory drug testing.

   
   

7. The gas chromatography/mass spectrometry analysis of the Respondent's urine sample was positive for the presence of benzoyleconine in a concentration of 4903.5 nanograms per milliliter. That concentration of benzoyleconine is consistent with, and indicative of, the Respondent's voluntary ingestion of cocaine within a time frame of approximately one to four days prior to the collection of the urine sample.

   
   

8. The Respondent's positive drug test results were received by the Internal Affairs Office of the Broward County Sheriff's Department on August 15, 1989. On that date, Detective Dansky again met with the Respondent. Detective Dansky told the Respondent that the Respondent's urine sample had been confirmed positive for cocaine. The Respondent told Detective Dansky that he does not do things like that and that it could not be him. 1/

   
   

9. As a result of the positive drug test results, the Respondent was suspended and ultimately terminated from his position as a correctional officer sergeant with the Broward County Sheriff's Department. At the time of his suspension, the Respondent had worked for the Broward County Sheriff's Department for approximately nine and a half years. Prior to August of 1989, the Respondent had an excellent work record with the Broward County Sheriff's Department.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal precedents, I make the following conclusions of law:

   
   

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

    
    

11. Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a correctional officer, which qualifications include the requirement, at subsection (7), that a correctional officer "[h]ave a good moral character. . . ." And Section 943.1395(5), Florida Statutes, provides: "The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10). Section 943.1395(6), Florida Statutes, authorizes certain lesser penalties for application in appropriate cases.

12. Rule 11B-27.0011(4), Florida Administrative Code, reads as follows, in pertinent part:

    
    

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

    (d) The unlawful use of any controlled substances enumerated in Rule 11B-27.00225.

    
    

13. The controlled substances enumerated in Rule 11B- 27.00225, Florida Administrative Code, include cocaine and cocaine metabolite.

    
    

14. It is clear from the facts in this case that the Respondent has failed to maintain a good moral character within the meaning of Rule 11B-27.0011(4)(d), Florida Administrative Code, and is therefore subject to the penalties enumerated in Section 943.1395(5) and (6), Florida Statutes. The unlawful use of controlled substances by a certified officer is a serious violation that warrants the imposition of the penalty of revocation of the certification. 2/ Revocation is an appropriate penalty even where the officer has many years of service without prior discipline. 3/

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent has failed to maintain good moral character and revoking the Respondent's certification as a correctional officer.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of May, 1991.

MICHAEL M. PARRISH, 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 21st day of May, 1991.

ENDNOTES

1/ In his testimony at the formal hearing the Respondent offered an exculpatory explanation for why his urine sample tested positive for cocaine on August 9, 1991. His explanation at the hearing is found not to be worthy of belief for a number of reasons, including the fact that he did not offer it at either the time of giving his urine sample (at which time he was specifically asked if he had taken any drugs that might show up on the test) or when he was confronted with the results of his urine test. Further, the expert witness testimony in

this case establishes that even if the Respondent's exculpatory explanation were to be credited, it would explain a positive test result in the range of approximately 300 nanograms; not a test result of almost 5,000 nanograms.

2/ See Criminal Justice Standards and Training Commission v. Virginia M. Newberry, DOAH Case No. 89-4535 (Recommended Order issued Jan. 29, 1990); Criminal Justice Standards and Training Commission v. Willie C. Cunningham, DOAH Case No. 89-3310 (Recommended Order issued Oct. 27, 1989); Criminal Justice Standards and Training Commission v. Harry T. Williams, DOAH Case No. 89-0343 (Recommended Order issued Nov. 3, 1989); Criminal Justice Standards and Training Commission v. Milton Franklin, DOAH Case No. 89-0715 (Recommended Order issued Aug. 18, 1989); Criminal Justice Standards and Training Commission v. Verdyce Clarke, DOAH Case No. 88-6318 (Recommended Order issued Mar. 15, 1989). In all of these cases it was recommended that certification be revoked as a result of use of controlled substances.

3/ See the Newberry and Franklin cases cited in footnote 2, above. The former involved an officer with 14 years of meritorious service, and the latter an officer with 20 years service and no prior discipline.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7860

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1 through 10: Accepted in substance, with a few unnecessary details omitted.

Paragraphs 11 through 19: Accepted in substance, but with most details omitted as subordinate and unnecessary.

Paragraphs 20 through 30: Accepted in substance, with a few unnecessary details omitted.

Findings submitted by Respondent:

(The Respondent did not submit any proposed findings of fact.)

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Mr. James L. Jackson

1701 N.W. 3rd Street, Apartment 3 Fort Lauderdale, FL 33311

James T. Moore, Commissioner

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Jeffrey Long, Director

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Rodney Gaddy, General Counsel

Florida Department of Law Enforcement Post Office 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: 90-007860

Orders for Case No: 90-007860