STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7304

)

)

DON TURNAGE, SR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean held a formal hearing in the above- styled cause on May 27, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gina Cassidy, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Elise M. Matthes, Esquire

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUES

Whether Respondent committed the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On January 15, 1991, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed a one-count Administrative Complaint (Case No. L-2600) against the law enforcement certification of Respondent, Don Turnage, Sr. The Administrative Complaint alleged that Respondent had violated Section 943.13(7), Florida Statutes, and was, therefore, subject to discipline pursuant to Section 942.1395(5)(6), Florida Statutes. The Respondent, represented by counsel, filed his answer to the Administrative Complaint. The Hearing Officer noticed the case for hearing; however, Respondent secured counsel from North Florida Legal Services, who requested and was granted a continuance until May 27, 1992.

At the final hearing, Petitioner presented the testimony of John Kirby, Al Brown, Patricia Adams, and Dr. Charles Amos. Respondent testified in his own behalf, and presented no other witnesses.

Both parties submitted proposed findings of fact which were read and considered. Appendix A states which of these findings were adopted, and which were rejected and why.

FINDINGS OF FACT

General Findings

1. Respondent was certified by the Criminal Justice Standards and Training Commission on April 20, 1988, and issued Certificate Number 16-88-002-01. R at 9,10.

   
   

2. Respondent was employed as a law enforcement officer with the Tallahassee Police Department from January 22, 1988, through May 21, 1990. R at 9.

   
   

   Findings of Fact as to Count 1 of Petitioner's Administrative Complaint

   
   

3. On or about April 9, 1990, a letter, return receipt requested, was delivered as addressed to the Tallahassee Police Department, Internal Affairs. Lieutenant Al Brown in internal affairs ultimately received the letter. The letter was signed by a "Lisa" with no surname and had a return address of 1012 Basin Street, #207-C, a nonexistent address. R at 97-99.

   
   

4. The letter alleged Respondent bought and smoked marijuana on a daily basis and suggested he be drug tested. R. at 99.

   
   

5. Lieutenant Brown checked the address of the anonymous "Lisa" once, and never inquired into the fate of the green card. R at 101, 139.

   
   

6. After role call on April 10, 1990, Respondent and his supervisor, Sergeant John Kirby, were met by Lt. Brown. Lt. Brown informed Respondent an anonymous call from a black female had come in which accused him of drug abuse, and requested he take a voluntary test. R at 61, 101-102.

   
   

7. Respondent was not ordered to take the test or threatened with discipline if he refused. R at 35, 66-67, 103-104. However, at no time was Respondent clearly informed no adverse action would be taken if he refused the test. R at 140.

   
   

8. Respondent, although unable to secure any information about this alleged call, readily agreed to a test. R at 35, 66.

   
   

9. At the time, the Respondent was unaware how long after use marijuana could be detected in urine. R at 283.

   
   

10. At approximately 5:00 p.m. on April 10, 1990, Lt. Brown drove the Respondent to Physician's Care Center on North Monroe where a urine sample was taken. R at 105.

    
    

11. The Respondent filled out paper work, disrobed, put on a hospital gown, and was instructed by the nurse how to provide the sample. R at 106.

12. Lt. Brown requested two samples be taken so that Respondent could submit one for independent testing. R at 106. However, no one advised the Respondent how to get the second sample tested because Brown and the other supervisors did not know how to initiate such a cross test.

    
    

13. Respondent was given a sample cup by the nurse in the lieutenant's presence, and required to urinate in the cup in front of the nurse and the lieutenant. The Respondent produced 85 cc's urine in the cup and gave the cup to the nurse. The nurse poured the sample into two smaller SmithKline collection cups which she sealed with evidence tape which was initialed by the Respondent along with the various forms. The sample was assigned a unique identification number, 278485T, which was placed upon the sample to be tested for the police department. Each of the cups was placed into a blue SmithKline toxicology bag and sealed with red evidence tape and initialed. The Respondent signed the forms and the bar code number. R at 109, 178, 191.

    
    

14. The department's sample was retained by Physician's Care and delivered to a SmithKline courier, who checked the seals and maintained the chain of custody while delivering it to SmithKline's Tallahassee facility. The chain of custody was maintained as the sample was shipped by air to the SmithKline facility in Tampa, Florida. The other sample was given to the Respondent.

    
    

15. The department's sample was checked upon arrival at SmithKline's lab and all the seals were intact. Maintaining the chain of custody, the sample was tested on April 11, 1990. R at 184-186. First, a screening test was performed which proved positive for THC, a metabolite created in the body when it metabolizes marijuana. R at 189. Thereafter, a confirmatory analysis of the department's sample of the Respondent's urine was performed using gas chromatography mass spectrometry (GCMS). R at 189. GCMS provides a scientifically reliable test for the presence of marijuana metabolites in urine, which indicates with scientific certainty that the person testing positive smoked marijuana. R at 173-176,192,204-206. The Respondent's urine contained

    53 nanograms of THC per milliliter of urine. A second test was then performed which reconfirmed the results of the first test. It showed 58 nanograms of THC per milliliter of urine. The variation in metabolite between the tests is within testing limits, and the amount of metabolite shows marijuana use by the Respondent in the opinion of an expert in such testing based upon these tests. The amount of metabolite is inconsistent with "passive inhalation," although the Respondent did not testify to being present when any individuals were smoking marijuana. R 176-178,193.

    
    

16. At the time the drug test was administered to Respondent, no mechanisms for certification of samples and no formal training for collectors of samples was in place, and no evidence was presented on the certification of the technician who took Respondent's sample. R at 198-200.

    
    

17. On April 17, 1990, after learning of the Respondent's test results, Lt. Brown, Captain Walter NcNeil, and Lt. Newlin went to Respondent's home, informed him of the positive test results and suspended him from TPD. R at 114.

    
    

18. The sample identified as Respondent's showed positive at a level more than three times the cut off level. R at 203.

    
    

19. Upon learning of the positive test, the Respondent began to seek a way to have his sample tested. He did not find a facility willing to deal with it until April 25, 1990 when he went to the office of Dr. Esias Lee.

20. Respondent submitted a new urine sample at Dr. Lee's office, and also delivered to the technician the original sample he had given on April 10, 1990. The Respondent also provided a blood sample for testing at his own expense. R. at 227-228. The conditions under which the Respondent gave the sample were not as controlled as they had been at Physician's Care Center, and the technician did not oversee taking of the sample by being present when the Respondent produced the sample.

    
    

21. The technician taking the samples indicated she would attempt to submit all samples for testing. R at 227.

    
    

22. When Respondent was questioned by Lt. Brown on May 4, 1990, regarding the testing done through Dr. Lee's office, the Respondent thought both the second portion of his April 10, 1990, sample and a new sample taken April 25, 1990, were submitted for testing. R. at 119, 121-122. The second portion of the April 10, 1990, sample had been destroyed because it was old and because the laboratory used by Dr. Lee's office would not accept it.

    
    

23. The sample Respondent submitted on April 25, 1990, was sent off for analysis and tested negative. R at 239.

    
    

24. The Respondent could have produced a positive test for marijuana use on April 10, 1990, and a negative test for marijuana use on April 25, 1990, if Respondent was only a light user of the drug and had not used marijuana between April 10, 1990, and April 25, 1990. R at 194.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case in accordance with Section 120.57(1), Florida Statutes.

    
    

26. The Commission seeks revocation of Respondent's certification as a law enforcement officer. The Commission must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

27. In license revocation proceedings, case law requires strict construction of statutes and specificity of charges. Davis v. Department of Professional Regulation, 457 So.2d 1078 (Fla. 1st DCA 1985). Where a statute authorizes revocation of a license for certain enumerated causes, the license cannot be revoked on any ground other than those causes specified. Bach v. Florida State Board of Dentistry, 378 So.2d 36 (Fla. 1st DCA 1980).

    
    

28. The sole count of the Administrative Complaint filed against Respondent alleges that he was in actual or constructive possession of a controlled substance and thereby violated Section 943.1395(5)(6), Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code. Therefore, the issue in the instant case is whether the Commission has proved by clear and convincing evidence that Respondent was willfully and knowingly in actual or constructive possession of a controlled substance.

    
    

29. Section 943.13(4), Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

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

    
    

30. Rule 11B-27.0011(4)(d), Florida Administrative Code, 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:

    
    

    (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 of the controlled substances enumerated in Rule 11B-27.00225.

    
    

31. Among the substances enumerated in Rule 11B-27.0025 is cannabis, also known as marijuana.

    
    

    Section 943.1395(6) provides:

    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.

       
       

32. Clear and convincing evidence established that the Respondent's urine, given on April 10, contained sufficient THC metabolite to state with scientific certainty that the Respondent had smoked marijuana. If the Respondent smoked marijuana, then he possessed it contrary to law and contrary to the standards set forth in Rule 11B-27.0011(4)(d), Florida Administrative Code.

    
    

33. The Respondent failed to introduce any evidence which explained how he tested positive to marijuana, beyond stating that he had been in several rooms within a dormitory he patrolled off-duty in which marijuana had recently been smoked. The only evidence presented by the Respondent was his own testimony that he did not use drugs, and a negative drug test 15 days after his first

    positive test. The evidence was uncontroverted that the second negative test did not disprove or call into question the results of the first test.

    
    

34. In CJSTC v. Arthur W. Quicksall, DOAH Case No. 88-4000, the certification of a correctional officer applicant was revoked when a urine test proved positive for the presence of cannabis metabolite. The Hearing Officer recommended the penalty of revocation of certification due to the "seriousness of the offense [use of cannabis] as it relates to the public trust placed in a correctional officer who guards those incarcerated by society."

    
    

35. Although there is precedent for revocation and the commission has asked for this penalty in this case, the imposition of the ultimate penalty should be tempered by reason and should be just. This is not a possession case in which the evidence is very tangible. It is not a smoking gun case, in which the acts of the Respondent can be determined upon circumstantial evidence. This case involves depriving the Respondent of his certification solely upon the results of a test, which unlike some tests or comparisons such as fingerprints analysis or DNA testing, cannot be reproduced exactly because of the impact of time upon the results.

    
    

36. Lastly, since this case, the Tallahassee Police Department has developed a policy concerning drug testing and the state has developed standards for personnel and facilities involved in such testing. These procedures and standards were developed to insure that mistakes are not made. These were not in place when this case arose. Notwithstanding the testimony of the expert regarding the procedures followed, he could hardly be expected to admitted imperfections in the system or mistakes. Depriving an individual of his ability to work at his chosen occupation because of the results of test performed before existing safeguards were in place is a hard penalty to invoke.

    
    

37. The Petitioner offered testimony of the officer's supervisors that his performance had deteriorated; however, their performance ratings were not consistent with their testimony. To prevent any possible miscarriage of justice, probation is suggested as opposed to revocation.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. The certification of the Respondent be placed upon probation for two years with the requirement for periodic unannounced drug screening at the Respondent's expense not more than three times per year; and

   
   

2. The Respondent be required to advise any employing agency of these proceedings and provide the agency with a copy of the Commission's final order.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August 1992.

STEPHEN F. DEAN, 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 13th day of August 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact

1. - 2. Adopted.

3. -13. All relate to the Respondent's job performance which was not at issue except as it might indicate drug use. This evidence was inconsistent with the Respondent's personnel evaluations, with the inference in the drug test that drug use was occasional or light, and was a self-serving retrospective.

14.-18. Adopted.

19. Adopted in part rejected in part as irrelevant.

20.-22. Adopted.

23. Rejected. See paragraph 9 of Recommended Order.

24.-35. Adopted.

36. Rejected.

37.-52. Adopted.

53.-55. Rejected as contrary to more credible interpretation of facts. 56.-57. Adopted.

58. Rejected contrary to more credible credence.

59.-61. Adopted. Respondent's Findings of Facts 1.-11 Adopted.

12. Irrelevant.

13.-16. Adopted.

COPIES FURNISHED:

Gina Cassidy, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Elise M. Matthes, Esquire

412 Larson Building Tallahassee, Florida 32399-0300

James T. Moore, Commissioner

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, 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: 91-007304

Orders for Case No: 91-007304