STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4169

)

CHERYL A. ODOM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 10, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Amy J. Bardill, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108 STATEMENT OF THE ISSUES

Whether Respondent committed the offense alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 10, 1992, Petitioner charged that Respondent, a certified law enforcement officer, violated the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code, by failing "to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that an officer in the State of Florida have good moral character." The gravamen of Petitioner's charge is its contention that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, 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: cocaine and did introduce said substance into her body."

Respondent filed an election of rights disputing the allegations set forth in the Administrative Complaint. The matter was referred to the Division of

Administrative Hearings on July 26, 1994, for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, and this proceeding followed.

At hearing, Petitioner called Sonya Kurkurudza, Claudia Hernandez, and Terry Don Hall, Ph.D., as witnesses, and presented four exhibits, each of which was admitted into evidence. The three witnesses called by Petitioner are employees of Toxicology Associates, Inc. Dr. Hall was accepted as an expert witness in the field of toxicology. Respondent testified on her own behalf and also called her mother, Kathryn Estevez, Edward Moore, and Evelyn Barrett. Ms. Estevez is an attorney who represented Respondent immediately after the results of the drug tests were made known to Respondent. Sergeant Moore and Officer Barrett are police officers employed by the City of Opa-Locka Police Department. Respondent offered twelve exhibits, nine of which were admitted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was extended to more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code.

Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Cheryl A. Odom, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), having been issued certificate number 02-028628 on June 4, 1982.

   
   

2. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis.

   
   

3. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. The procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate.

   
   

4. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening

   cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter.

   
   

5. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115.

   
   

6. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter.

   
   

7. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter.

   
   

8. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period.

   
   

9. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful.

   
   

10. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, 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: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion.

    
    

11. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink.

12. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/

    
    

13. In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life.

    
    

14. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening.

    
    

15. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991.

    
    

16. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance.

    
    

17. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent.

    
    

18. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible.

    
    

19. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/

    
    

20. Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks good moral character.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1) and 120.60(7), Florida Statutes.

    
    

22. This is a license disciplinary proceeding in which the Commission seeks to take action against Respondent's certification as a law enforcement officer based on its contention that she has failed to maintain an essential requirement for certification, to-wit: good moral character. In cases of this nature, Petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Purusuant to Section 943.13(7), Florida Statutes, a law enforcement officer must have good moral character as a minimum qualification for certification.

    
    

24. Section 943.1395, Florida Statutes, establishes the grounds for disciplining the certification of a law enforcement officer. Pursuant to subsection 943.1395(7) such certification may be revoked, suspended or otherwise disciplined should the officer fail to maintain good moral character as required by Section 943.13(7), Florida Statutes.

    
    

25. Pertinent to this case, Rule 11B-27.0011(4)(d), Florida Administrative Code, defines failure to maintain good moral character, as required by subsection 943.13(7), to include:

    
    

    (d) The unlawful use of any of the controlled substances enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C. (Emphasis added.)

    
    

    Among the substances enumerated in Section 893.13, Florida Statutes, or 11B- 27.00225, Florida Administrative Code, are cocaine and cocaine metabolite.

    
    

26. There was no issue in this proceeding as to whether the illegal use of controlled substances by a law enforcement officer can be tolerated. Such use cannot be tolerated. This case turns on the burden of proof imposed on the Commission and whether the Commission met that burden. As set forth in the findings of fact, the Commission did not prove by clear and convincing evidence that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, 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: cocaine and did introduce said substance into her body." (Emphasis added.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative

complaint filed against Respondent.

DONE AND ENTERED this 8th day of August 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 8th day of August 1995.

ENDNOTES

1/ Dr. Hall was of the opinion that the difference between the levels of benzoylecgonine detected in the first and second urine samples indicates that Respondent is not a regular or heavy cocaine user.

2/ There is no presumption that a person whose urine has tested positive for a controlled substance knowingly and unlawfully consumed the controlled substance. Under appropriate circumstance, the trier of fact may infer that the positive tests were the results of knowing and unlawful consumption. See, Section 90.301, and Section 120.58(1)(a), Florida Statutes. The Commission relies on such an inference in this proceeding. In Ehrhardt, Florida Evidence, Section 301.1, the following differences between an inference and a presumption are observed:

A presumption differs from an inference. An inference is a logical deduction of fact that the trier of fact draws from the existence of another fact or group of facts. Whether it will find the inferred fact to exist is for the trier of fact to decide. (Emphasis has been added. Citations have been omitted.)

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4169

The proposed findings of fact submitted by Petitioner are adopted in material part by the Recommended Order. The inference that the Petitioner draws based on those facts has, for the reasons set forth, been rejected.

The following rulings are made on the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 11, 12, 18, 19, 23, 31, 32, 34, 35, 42, and 43 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 7 are rejected as being unnecessary as findings of fact, but are incorporated in the Preliminary Matters section of the Recommended Order.

3. The proposed findings of fact in paragraphs 8, 15, 16, 24, 25, 26, 27, 28, 29, 30, 33, 37, 38, 39, and 40 are subordinate to the findings made.

4. The proposed findings of fact in paragraphs 13, 14, 17, 20, 21, and 22 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraphs 36 and 41 are the recitation of testimony that is subordinate to the findings made.

COPIES FURNISHED:

Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

James C. Casey, Esquire

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel 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 ten 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: 94-004169

Orders for Case No: 94-004169