STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

DANA E. COOPER,

Respondent.

)

)

)

)

)

) Case No. 10-6276PL

)

)

)

)

)

RECOMMENDED ORDER

On December 10, 2010, a hearing was held by video teleconference with sites in Tallahassee and Jacksonville, Florida, before Lisa Shearer Nelson, an administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph White, Esquire

Kerra Smith, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Dana E. Cooper, pro se

4226 Heywood Street

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On March 23, 2010, Petitioner, Criminal Justice Standards and Training Commission, filed an Administrative Complaint charging that Respondent failed to maintain good moral character as defined in Florida Administrative Law Rule 11B-27.0011(4)(c), and thereby violated section 943.1395(7) On April 20, 2010, Respondent filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On July 27, 2010, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge.

By Order dated August 10, 2010, the hearing was scheduled for October 4, 2010. At the request of Petitioner, the case was continued and rescheduled for December 10, 2010, and proceeded as scheduled. At hearing, Petitioner presented the testimony of Heather Walker, Liberto Columbo, M.D., Brian Brunelli, Gerald Shaw, and Denise Hughes. Petitioner's Exhibits 1-5 were admitted into evidence. Respondent testified on his own behalf and submitted the testimony of Dana Way and Shay'La Cooper Scott.

Respondent's Exhibits G, J, and N were admitted into evidence. Respondent's Exhibits H and K were offered but not admitted.

The Transcript of the hearing was filed with the Division on January 12, 2011. On December 17, 2010, Dana Way forwarded to the Division a letter with attachments, apparently as a follow-up to her testimony. The documents were not admitted into evidence

in this proceeding and neither the letter nor the attachments have been considered. Both parties timely filed Proposed Recommended Orders which have been carefully considered in this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent has been a certified law enforcement officer, issued law enforcement certificate 233642.

2. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment.

3. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing.

4. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist.

5. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form.

   
   

6. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen.

7. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia.

8. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent.

9. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine.

10. The initial test performed by Quest is an immunoassay test used to screen all samples. Any sample that is positive by

    
    

    that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry.

11. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test.

12. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter.

13. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine.

14. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on

    April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine.

15. Respondent was terminated from his position as a law enforcement officer by the JSO.

16. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his

    
    

    daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine.

17. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves.

18. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine.

19. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and

    
    

    powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount.

20. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2010).

22. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent's certification as a law enforcement officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

23. Clear and convincing evidence:

    
    

    [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).

    
    

24. The Administrative Complaint contains the following factual allegations:

    2. On or about April 27, 2009, the Respondent, Dana E. Cooper, did then test positive for a controlled substance, Cocaine, by a blood and/or urine test which reflected a positive reading consistent and indicative of the ingestion of a controlled substance listed in Chapter 893 F.S.

    
    

    2. The actions of the Respondent did violate the provisions of Section 943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement Officer in the State of Florida have good moral character.

25. Section 943.1395(7) and (8) provides:

    
    

    (7) 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:

    
    

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. 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.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    
    

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7).

    The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

26. The Commission has defined "good moral character" for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:

    (4) 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.3/

27. Rule 11B-27.00225, in turn, requires that the procedures for drug testing must be consistent with the provisions of section 112.0455, Florida Statutes; that the procedures for collection sites and specimen collection comply with the requirements of Florida Administrative Code Rule 59A- 24.005; and that the procedures for analyzing and reporting the urine sample be consistent with rule 59A-24.006.

28. The collection of the urine specimen and the testing procedure used in this case were performed in compliance with the requirements of section 112.0455 and rules 59A-24.005 and 59A- 24.006.

29. Petitioner has proven the violation alleged, i.e., that Respondent tested positive for a controlled substance, here, a cocaine metabolite, by clear and convincing evidence. It is not

    
    

    necessary for Petitioner to demonstrate that Respondent engaged in the illicit use of cocaine. It need only demonstrate that he in fact tested positive for the cocaine metabolite at a level consistent with the ingestion of the drug.

30. The Commission has established disciplinary guidelines for the imposition of penalties for failure to maintain good moral character. At the time of the offense in this case, Florida Administrative Code Rule 11B-27.005(5)(d) provided:

    (d) Notwithstanding subsection (4) of this rule section, for the unlawful use by a certified officer of any controlled substances specified in Section 893.13, F.S., or Rule 11B-27.00225, F.A.C., pursuant to paragraph 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose a penalty ranging from prospective suspension to revocation.

31. Petitioner recommends revocation of Respondent's certification, asserting that cocaine is a particularly dangerous drug, and its unlawful possession is a third-degree felony. The undersigned has considered carefully the seriousness of the offense charged and the need for the public to be able to rely on law enforcement personnel to abide by the same standards they are employed to enforce.

32. The undersigned has also considered Respondent's unblemished record and consistently positive employment reviews, as well as his sincere efforts to determine the basis for the positive drug test. While there is no doubt that Respondent

    
    

    tested positive for benzoylecgonine, he was able to show that there are means other than illicit use of cocaine that could cause a person to test positive for a cocaine metabolite.

    Respondent was unable to prove that, in fact, his test result was a consequence of his use of a honey product containing coca leaves, but did present persuasive evidence that willfully ingesting cocaine is inconsistent with his known behavior and the positive test is more consistent with his theory regarding use of home remedies to treat his cluster headaches.

33. Based upon the totality of the evidence presented, the penalty imposed should be at the lower end of the guideline range, but a penalty is required that will both deter other officers from engaging in the illicit use of drugs and allow Respondent to return to employment in law enforcement under supervision.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of 60 days, followed by probation for a period of two years. As condition of probation,

it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c).

DONE AND ENTERED this 3rd day of February, 2011, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2011.

ENDNOTES

1/ Unless otherwise indicated, all references to Florida Statutes are to the 2008 version.

2/ The advertisement was introduced and accepted into evidence for the purpose of showing what information was available to the Respondent, but not for the purpose of establishing the actual contents of the honey.

3/ The rule was amended in 2010 to provide the following:

(d) A certified officer’s unlawful injection, ingestion, inhalation, or other introduction of any controlled substance, as defined in Section 893.03, F.S., into his or her body as evidenced by a drug test in accordance with Sections 112.0455, 440.102, or 944.474, F.S.

Although the Administrative Complaint cites to paragraph (4)(c), it is clear that the relevant language is in paragraph (4)(d). The Department cites to the version of the rule adopted in April 2009, and does not argue that the current version should apply.

COPIES FURNISHED:

Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302

Dana E. Cooper 4226 Heywood Street

Jacksonville, Florida 32207

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

Michael Crews, Program Director Criminal Justice Standards and

Training Commission 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: 10-006276PL

Orders for Case No: 10-006276PL