STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DEBRA J. HOLLINGSWORTH, )

)

Respondent. )

Case No. 04-0720PL

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on May 18, 2004, in Arcadia, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Laurie Beth Woodham, Esquire

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

For Respondent: Pine Scott Price, Esquire

Bank of America Building

126 East Olympia Avenue Suite 405

Punta Gorda, Florida 33950 STATEMENT OF THE ISSUES

The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative

Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.

PRELIMINARY STATEMENT

On May 3, 2002, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of six witnesses and submitted eight exhibits for admission into evidence. Respondent presented the testimony of two witnesses, including Respondent, and submitted two exhibits for admission into evidence. The identity of the witnesses and exhibits and any attendant rulings are reported in the Transcript of the hearing filed with DOAH on June 28, 2004.

After the hearing, Petitioner substituted Mr. Linton B. Eason as attorney of record. Mr. Eason submitted Petitioner's proposed recommended order (PRO) on July 8, 2004.

The ALJ granted Respondent's unopposed motion for an extension of time in which to file Respondent's PRO. Respondent filed her PRO on July 9, 2004.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as

   a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on

   November 3, 1998, pursuant to Law Enforcement Certificate number 183207.

2. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from

   November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding.

3. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes.

4. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken.

5. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who

   released the specimen. Nor did the chain of custody documents indicate the mode of shipment.

6. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed.

7. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result.

8. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter.

9. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent.

10. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene.

11. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp.

12. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002.

    The specimen did not test positive for any controlled substance.

    
    

13. The independent test was conducted approximately

    
    

    14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days.

14. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana.

15. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located.

16. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the parties and subject matter in this proceeding pursuant to Subsection 120.57(1), Florida Statutes (2004). The parties received adequate notice of the administrative hearing.

18. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. The evidence is clear and convincing that Respondent tested positive for marijuana on February 12, 2002. Florida Administrative Code Rule 11B-27.0011(4) defines the failure to maintain good moral character to include a positive test for marijuana. Unlike most provisions defining the failure to maintain good moral character, the rule does not require Petitioner to show that the ingestion of a controlled substance was willful. Respondent did not challenge the rule, and neither DOAH nor Petitioner may formulate final agency action that is inconsistent with a valid existing rule. § 120.68(7)(e)2, Fla. Stat. (2003). Pursuant to the rule, Respondent failed to maintain good moral character on February 12, 2002.

20. Petitioner failed to show by clear and convincing evidence that revocation of Respondent's certificate is reasonable. Petitioner incorrectly relies upon Florida Administrative Code Rule 11B-27.005(5)(b)11 as the basis for revocation of Respondent's certificate. The cited rule addresses possession or delivery of a controlled substance. The Administrative Complaint does not charge Respondent with possession or delivery of a controlled substance. Petitioner cannot find Respondent guilty of violating a statute not referred to in the Administrative Complaint. See, e.g., B.D.M. Financial Corporation v. Department of Business and Professional

    Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997)(failure to

    allege violation of statute in administrative complaint is not harmless error); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990)(agency cannot find licensee guilty of violating three statutes not referred to in administrative complaint); Celaya v.

    Department of Professional Regulation, 560 So. 2d 383, 384 (Fla. 3d DCA 1990)(agency cannot find licensee guilty of lack of competence when administrative complaint does not refer to that statute); Kinney v. Department of State, Division of Licensing,

    501 So. 2d 129, 133 (Fla. 5th DCA 1987)(agency cannot find licensee guilty of violating Subsection 493.319(1)(c) when administrative complaint does not charge that licensee violated that specific statute); Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063, 1065 (Fla. 3d DCA 1984)(allegation in administrative complaint that licensee violated general provisions of Subsection 465.023(1)(c) is not sufficient notice that licensee is charged with violating specific provisions in Section 465.018).

21. The Administrative Complaint, in relevant part, charges that the positive drug test violated Subsection 943.13(7), Florida Statutes (2001). Subsection 943.13(7), Florida Statutes (2001), requires Respondent to demonstrate good moral character through a background check. The Administrative Complaint does not allege that Respondent failed to maintain

    good moral character as a result of a background screening. An agency cannot find a licensee guilty of violating a statute cited in an administrative complaint based on grounds not specifically alleged in the administrative complaint. Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).

22. The Administrative Complaint also alleges that the positive drug test violated Subsection 943.1395(6), Florida Statutes (2001). Subsection 943.1395(6) requires Petitioner to revoke Respondent's license upon a showing that Respondent failed to comply with the provisions of Subsections 943.13(4), (8), 943.133(2), or 943.139(2), Florida Statutes (2001). None of these statutory subsections address the failure to maintain good moral character. Rather, each subsection involves grounds not specifically alleged in the Administrative Complaint. Petitioner cannot find Respondent guilty of violating a statute cited in the Administrative Complaint based on grounds not specifically alleged in the Administrative Complaint. Ghani, 714 So. 2d at 1115; Cotrill, 685 So. 2d at 1371.

23. Respondent violated Subsection 943.1395(7), Florida Statutes (2001), by testing positive for marijuana. Subsection 943.1395(7) authorizes a penalty that ranges from reprimand to revocation. Courts 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).

24. The express terms of Florida Administrative Code Rule 11B-27.005(5)(d) modify or contravene Subsection 943.1395(7), Florida Statutes (2001), by eliminating a reprimand from the authorized penalties and requiring a penalty that ranges from suspension to revocation. A rule that modifies or contravenes the law implemented is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2003). In order to interpret the rule in a manner that is consistent with the statute, the ALJ must interpret the rule as authorizing those penalties enumerated in the statute, including a reprimand.

25. Florida Administrative Code Rule 11B-27.005(6) authorizes Petitioner to deviate from the authorized range of penalties based on any of the aggravating or mitigating factors set forth in Florida Administrative Code Rule 11B-27.005(6)(a) and (b). Petitioner submitted no evidence of aggravating factors, including any prior disciplinary history, that warrant revocation of Respondent's certificate.

26. Willfulness is not an aggravating factor evidenced in the record. Petitioner submitted no direct evidence that the

    ingestion of marijuana was willful. Circumstantial evidence of willfulness, if any, was less than clear and convincing.

27. Willfulness is not an aggravating factor that arises by operation of Florida Administrative Code Rule 11B-27.0011(4). Florida Administrative Code Rule 11B-27.0011(4) cannot be construed as creating an evidentiary presumption that ingestion of marijuana was willful unless Respondent shows the ingestion was not willful. Such a construction of the rule would effectively shift the burden of proof to Respondent.

28. Petitioner cannot create an evidentiary presumption by rule. The power to establish evidentiary presumptions is left to the courts and the Legislature rather than 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.

    Department of Professional Regulation, 582 So. 2d 660, 663-64 (Fla. 1st DCA 1991).

29. The evidence demonstrates several factors that are inconsistent with the willful ingestion of marijuana. Respondent voluntarily submitted to the original test, immediately obtained an independent test upon learning of the positive results of the first test, and did not offer a

contrived explanation of how she may have inadvertently ingested marijuana. Respondent's testimony denying any knowledge of ingesting marijuana, or intent to do so, was credible and persuasive. Respondent's actions after receiving the results of the original drug test and her record prior to this incident are consistent with Respondent's testimony.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001).

DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2004.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Pine Scott Price, Esquire Bank of America Building

126 East Olympia Avenue Suite 405

Punta Gorda, Florida 33950

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

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services 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 within

15 days from the date of 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: 04-000720PL

Orders for Case No: 04-000720PL