DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 03-3659PL
JOHN G. RETURETA, )
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on March 26, 2004.
For Petitioner: Linton B. Eason, Esquire
For Respondent: James C. Casey, Esquire
The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7),
Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
By Administrative Complaint dated May 9, 2003, Petitioner alleged that Respondent was certified as a correctional officer, holding certificate number 182381, and as a law enforcement officer, holding certificate number 200241.
The Administrative Complaint alleges that, on December 13, 2002, Respondent tested positive for cocaine, which "reflected a positive reading consistent with and indicative of the ingestion of a controlled substance listed in Chapter 893, F.S." The Administrative Complaint alleges that Respondent's "actions" violated Section 943.1395(6) or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B-27.0011(4)(d). Respondent allegedly violated these provisions by failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.
At the hearing, Petitioner called one witness and offered five exhibits into evidence. Respondent called four witnesses and offered into evidence eight exhibits. All exhibits were admitted; however, Respondent’s Exhibit 8 was not admitted for the truth.
The court reporter filed the transcript on May 10, 2004. The parties filed their Proposed Recommended Orders on June 9,
2004.
At all material times, Respondent was a certified law
enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001.
As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed.
On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home.
The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing
in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis.
As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned.
The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing.
On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine
metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample.
At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites.
At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml.
The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample.
The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD
OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN
MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample.
Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result.
The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening.
Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large
amount of cocaine into his drink. This defense is unworthy of belief.
Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night.
As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish
testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended.
For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer.
The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom,
Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high.
Exacerbating these credibility problems was
Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance.
Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Florida Statutes (2004).
Section 943.13(7), Florida Statutes, requires certified officers to maintain good moral character.
Section 943.1395(7), Florida Statutes, 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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
As applicable to certified officers, Florida Administrative Code Rule 11B-27.0011(4)(d) provides:
For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
(d) Testing positive for controlled substances by a urine or blood test that results in a confirmed nanogram level pursuant to Rule 11B-27.00225, F.A.C., or is consistent with and indicative of the ingestion of a controlled substance pursuant to Chapter 893, F.S., and not having a specific nanogram level listed in Rule
11B-27.00225, F.A.C., shall be an affirmative defense to this provision to establish that any such ingestion was lawful. Any test of this kind relied upon by the Commission for disciplinary action, shall comply with the requirements for reliability and integrity of the testing process pursuant to Rule 11B-27.00225, F.A.C.
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Florida Administrative Code Rule 11B-27.0011(4)(d) is difficult to understand. It appears to mean that a certified officer fails to maintain good moral character by: 1) testing positive for a controlled substance by a urine or blood test producing a confirmed nanogram level, pursuant to Florida Administrative Code Rule 11B-27.00225 or 2) testing positive for a controlled substance by a urine or blood test producing proof
of the ingestion of a controlled substance, but not in the form of a confirmed nanogram level or perhaps any nanogram level at
all.
Florida Administrative Code Rule 11B-27.0011(4)(d)
recognizes an affirmative defense if a test fails to produce a "specific" nanogram level. In such a case, the available affirmative defense is that the ingestion was lawful.
The first problem with Florida Administrative Code Rule 11B-27.0011(4)(d) is that it implies that Florida Administrative Code Rule 11B-27.00225 specifies nanogram levels, but it does not. Florida Administrative Code Rule 11B-27.00225 sets forth a testing protocol. Nanogram levels, usually expressed per milliliter, express the concentration of a substance in the tested sample--often urine, but sometimes blood or hair.
Although unmentioned in Florida Administrative Code Rule 11B-27.0011(4)(d), Florida Administrative Code Rule
59A-24.006(4)(e)1 specifies the nanogram level for cocaine (i.e., "benzoylecgonine") for an initial screening of urine; the threshold for a presumptively positive result is 300 nanograms per milliliter (ng/ml). Florida Administrative Code Rule
59A-24.006(4)(f)1 specifies the nanogram level for cocaine for a confirmatory test of urine; the threshold for a positive result is 150 ng/ml. For cocaine, then, 150 ng/ml is the "confirmed
nanogram level," as used by Florida Administrative Code Rule 11B-27.0011(4)(d).
Florida Administrative Code Rule 11B-27.0011(4)(d) seems to imply that, if a subject's urine contains at least 150 ng/ml, he is presumptively guilty of the failure to maintain good moral character. If a subject's urine contains less than
150 ng/ml of a cocaine metabolite, the rule recognizes the affirmative defense of lawful ingestion, such as by prescription or accident. If a subject's urine contains at least 150 ng/ml of a cocaine metabolite, the rule does not explicitly recognize an affirmative defense of lawful ingestion.
In this case, Petitioner argued that the sole purpose of evidence of lawful or accidental ingestion would be to establish mitigation. However, this argument assumes that the Legislature intended to define as behavior inconsistent with good moral character the accidental ingestion of a controlled substance or the intentional ingestion of a lawfully prescribed controlled substance, assuming that the ingestion of some prescribed substances, but probably not cocaine, would generate urine levels in excess of applicable thresholds.
Commonly prescribed controlled substances include cocaine (Schedule II), barbiturates (Schedule IV), benzodiazepines (Schedule IV), amphetamine (Schedule II), steroids (Schedule III), and codeine (depending on form and
concentration, all schedules except Schedule IV). § 893.03, Fla. Stat. Florida Administrative Code Rule 59A-24.005(2)(g) lists some lawfully prescribed drugs containing scheduled controlled substances. The list includes cocaine in the form of a topical solution by Roxanne.
Even for persons testing below 150 ng/ml, Florida Administrative Code Rule 11B-27.0011(4)(d) establishes an evidentiary presumption of lack of good moral character due to the presence of a specific concentration of cocaine in the certificateholder's urine. In this process, the rule effectively relieves Petitioner of the burden of proving the circumstances of ingestion and placing this burden on Respondent.
Courts will interpret disciplinary statutes in favor of the licensee and against the regulatory authority. See, e.g., Djokic v. Department of Business and Professional Regulation, Division of Real Estate, So. 2d , 29 Fla. Law Weekly D1370 (Fla. 4th DCA 2004). The same principle applies to disciplinary rules.
The power to establish evidentiary presumptions is left to the courts and the Legislature, not the executive branch. See B. R. v. Department of Health and Rehabilitative
Services, 558 So. 2d 1027, 1029 (Fla. 2d DCA 1989) (hearing officer mistakenly believed himself bound by unauthorized, but
unchallenged, agency rule establishing evidentiary presumption), rev. denied, 567 So. 2d 434 (Fla. 1990); and McDonald v. Board
of Harbor Pilot Commissioners, 582 So. 2d 660, 663-64 (Fla. 1st DCA 1991).
Florida Administrative Code Rule 11B-27.0011(4)(b) is sufficiently open to interpretation to support the interpretation that it does not list exhaustively all affirmative defense available to certificateholders. In other words, by expressly recognizing one affirmative defense, the rule does not preclude other affirmative defenses. Thus, Florida Administrative Code Rule 11B-27.0011(4)(b) allows a certificateholder to present an affirmative defense of accidental or lawful ingestion of a controlled substance, regardless of the level of cocaine in his urine.
However, Florida Administrative Code Rule
11B-27.0011(4)(b) is not so open to interpretation as to support an interpretation that would require Petitioner to prove, as part of its case, that a certificateholder has knowingly and willfully ingested a controlled substance. Plainly, the rule requires only that Petitioner prove that a certificateholder has tested positive for cocaine. The rule relieves Petitioner of the burden of proving the circumstances of the ingestion.
As noted above, agencies lack the authority to create evidentiary presumptions. Even though the B. R. court stated
that the hearing officer mistakenly applied the duly promulgated agency rule establishing an evidentiary presumption, statutory law does not authorize an Administrative Law Judge to invalidate agency rules, unless as a result of a rule challenge, pursuant to Section 120.56, Florida Statutes. Thus, absent a successful rule challenge or judicial order, the Administrative Law Judge must apply Florida Administrative Code Rule 11B-27.0011(4)(b), and the clearest aspect of this poorly drafted rule is its intent to impose upon the certificateholder the burden of proving that any ingestion of a controlled substance was lawful, accidental, or otherwise unknowing or unintentional.
In this case, Petitioner has proved that Respondent had cocaine metabolites in his urine and at very high levels. Under Florida Administrative Code Rule 11B-27.0011(4)(d), Petitioner has proved a lack of good moral character, absent exculpatory evidence of the circumstances of ingestion from Respondent. As already noted, Respondent's evidence does not establish the circumstances of lawful, accidental, or unintentional ingestion.
Even in the absence of Florida Administrative Code Rule 11B-27.0011(4)(d), Petitioner would prevail on this record. The substantial amount of cocaine that Respondent ingested is inconsistent with prescribed use or unintentional or accidental ingestion. However, absent the rule, the parties might have
presented evidence to depict a fuller picture of Respondent as a person and a professional law enforcement and correctional officer, and Respondent might not have yielded to the temptation to present the fanciful fabrication that he and Ms. Dalgleish constructed.
Florida Administrative Code Rule 11B-27.005(5)(d) provides that Petitioner shall impose revocation for the "unlawful use . . . of any controlled substances . . ., absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances "
The record contains no evidence of either rehabilitation or mitigation.
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates.
DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004.
Linton B. Eason, Esquire
James C. Casey, Esquire Slesnick & Casey, LLP
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
