STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3205

)

LINDA BASS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 9, 1992, 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: Linda R. Bass, pro se

18101 Northwest 32nd Avenue Miami, Florida 33055

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent alleging that she had violated the statutes and rules regulating her conduct as a certified correctional officer, and Respondent timely requested a formal hearing regarding the allegations contained in that Administrative Complaint. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Gene H. Gudell, Tamara Shapiro, Tamaris Tirado, Claudia Monica Hernandez, Myriam Kovacs, Israel J. Sanchez, and Terry D. Hall. Respondent testified on her own behalf and presented the testimony of Debra J. Morris, Deborah Crittendon, Mary C. Randle, Doris J. R. Riles, and Willie Bass. Additionally, Petitioner's Exhibits numbered 1, 3, and

4 and Respondent's Exhibits numbered 1-6 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08.

   
   

2. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated.

   
   

3. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples.

   An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box.

   
   

4. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact.

   
   

5. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed.

   
   

6. 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 was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine.

   
   

7. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine.

   
   

8. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter.

   
   

9. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had

   been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials.

   
   

10. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing.

    
    

11. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite.

    
    

12. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine.

    
    

13. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

15. The Administrative Complaint filed herein alleges that Respondent is guilty of violating Sections 943.1395(5) and (6) and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code, by being in actual or constructive possession of a controlled substance and introducing said substance into her body on or about August 8, 1990. Section 943.13, Florida Statutes, establishes the minimum qualifications for correctional officers in Florida and provides in Subsection (7) that such persons shall have a good moral character. Section 943.1395(5), Florida Statutes, provides that Petitioner shall revoke the certification of any correctional officer who is not in compliance with the provisions of Section 943.13(1)-(10), and Section 943.1395(6) provides Petitioner with the option of taking lesser disciplinary action when the failure to maintain standards is the failure to maintain good moral character required by Subsection (7) of Section 943.13, Florida Statutes. Section 943.1395(6), Florida Statutes, provides as follows:

    
    

    1. 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.

          
          

16. Pursuant to the instructions found in Section 943.1395(6) that Petitioner adopt a rule defining good moral character and establish such as a statewide standard, Petitioner has enacted Rule 11B-27.0011, Florida Administrative Code, which provides, in 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

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

    * * *

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

    
    

    Cocaine or cocaine metabolites are among the enumeration of controlled substances in Rule 11B-27.00225.

    
    

17. The evidence in this cause clearly establishes that the obtaining and testing of Respondent's urine sample was done in accordance with the procedures and equipment specified in Rule 11B-27.00225, and an appropriate chain of custody was established in this cause. The scientific evidence presented is clear and convincing. On the other hand, Respondent denies ever having used cocaine and alleges that her urine specimen had been tampered with, that the urine tested belonged to someone else, or that a mistake was made in testing her urine sample. Yet, Respondent offered no evidence as to who might have tampered with her specimen, when such tampering might have taken place, or what tampering Respondent alleges occurred. Similarly, Respondent offered no evidence as to who might have made a mistake during the testing process, what the mistake might have been, or when it might have occurred. Further, Respondent herself inspected the second container prior to the time that it was unsealed for confirmatory testing and found the seal to be intact and her own initials to be written on the evidence tape sealing that container. Accordingly, Respondent's position is not supported by any evidence.

    
    

18. Petitioner has, therefore, met its burden of proving that Respondent has failed to maintain good moral character as required by Section 943.13(7), as good moral character is defined by Rule 11B-27.0011(4) by unlawfully using a controlled substance.

19. Rule 11B-27.005, Florida Administrative Code, sets forth disciplinary guidelines, the range of penalties to be applied to different violations, and mitigating circumstances to be considered by Petitioner. Subsection (2) of that Rule provides that penalties at the upper range of sanctions, such as suspension or revocation, include lesser penalties which may be included in the final penalty assessed. Subsection (3)(d) of that Rule provides as follows:

    
    

    (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.

    
    

    Lastly, Subsection (4) of that Rule sets forth mitigating circumstances to be considered by Petitioner prior to the imposition of a final penalty.

    
    

20. Although Petitioner argues that Respondent's certification as a correctional officer should be revoked and cites in its proposed recommended order a number of recommended orders recommending such a penalty, many of the cases relied upon by Petitioner involve certified officers who either repeatedly used illegal drugs or used and/or obtained illegal drugs while performing official duties. Further, the testing in those cases revealed cocaine metabolite levels substantially higher than Respondent's--for example, 588, 4903.5, 4830, and "perhaps as much as 1000" nanograms per milliliter. Such behavior should warrant the revocation of certification.

    
    

21. On the other hand, TTS determined Respondent's level to be 202 nanograms per milliliter on the first testing and 174 on the second. Rule 11B- 27.00225(3)(b), Florida Administrative Code, requires that the machines used to detect the presence of cocaine or cocaine metabolite in urine be capable of detection at the minimum level of 300 nanograms per milliliter. Further, Respondent has presented evidence of some of the mitigating circumstances set forth in Subsection (4) of Rule 11B-27.005. The character and employment references offered by Respondent as part of the evidence in this cause indicates that Respondent did not use her official authority to facilitate her misconduct and the misconduct appears to have been unassociated with Respondent's performing her official duties. Respondent has not been the subject of prior disciplinary action but has been automatically terminated from employment due to her misconduct a year and a half ago.

    
    

22. Respondent's conduct did violate the statutes and rules regulating certified correctional officers, and it is appropriate that she be disciplined. Section 943.1395(6)(a) provides for a suspension of certification for a period not to exceed two years, and Section 943.1395(6)(b) provides for a probationary period of up to two years. Petitioner has established certain terms and conditions of probation in Rule 11B-27.005(5)(c). Several of those are applicable in this cause, such as random drug testing and participation in substance abuse counselling.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered

1. Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause;

   
   

2. Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and

   
   

3. Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling.

DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order.

   
   

2. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument.

COPIES FURNISHED:

Joseph S. White

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

Ms. Linda Bass

18101 Northwest 32nd Avenue Miami, Florida 33055

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner 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: 91-003205

Orders for Case No: 91-003205