vs.
Respondent.
) Case No. 12-3043PL
On November 15, 2012, a duly-noticed hearing was held in Marianna, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Elissa R. Saavedra, Esquire
The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
On June 28, 2012, the Criminal Justice Standards and Training Commission (Petitioner or Commission) filed an Administrative Complaint against Ms. Lorrie Gerdon (Respondent or Ms. Gerdon), alleging that Ms. Gerdon lacked good moral character in that she tested positive for marijuana, a controlled substance under chapter 893, Florida Statutes. On or about August 22, 2011, Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On November 7, 2011, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned Case No. 11-5715PL. Following the filing of a Notice of Settlement and Motion to Relinquish Jurisdiction on
December 12, 2011, the file of the Division of Administrative Hearings was closed.
Settlement failed, and a Motion to Re-Open File and for Assignment of Administrative Law Judge was filed on
September 14, 2012. The Motion to Re-open File was granted and the case was re-opened as Case No. 12-3043PL.
Hearing was scheduled for November 15, 2012. At hearing, Petitioner presented the live testimony of Lieutenant Georgiana Hand of the Apalachee Correctional Institution, and Ms. April Sadousky, of the Marianna Family Center, as well as telephonic
testimony of Warden John Palmer, formerly of the Apalachee Correctional Institution, Dr. Neil Dash of Medical Review Services, and Ms. Phyllis Chandler of LabCorp Occupational Testing Services, the latter two accepted as expert witnesses. Petitioner offered three Exhibits, P-2 through P-4, which were admitted without objection. Respondent’s affirmative responses to Petitioner’s Requests for Admissions numbers 1, 2, 5, 6, and
7 were accepted and the corresponding statements were accepted and deemed conclusively established. Respondent testified, but presented no other witnesses. Respondent offered Exhibit R-1, a list of medications that she testified she was taking at the time of the incident, which was admitted over objection, as discussed below.
The Transcript was filed with the Division on December 4, 2012. Both parties timely filed Proposed Recommended Orders that have been considered.
The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines.
Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320.
Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011.
Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries.
Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave.
On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations.
Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand
asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm.
Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after,
Lt. Hand was asked to report to the Warden’s Office.
When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance.
Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was
going to send her for a reasonable suspicion drug test,
Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana.
As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director
R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test.
Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center.
After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making
it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample.
Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of
Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having
Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel.
Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records.
Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in
proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing.
LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing.
A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva.
As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana.
LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by
Ms. Chandler, who is a custodian of these records.
In initial screening, the THC cut-off was 50.
Specimen ID# 0288508894 tested at 555.
In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter.
All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly.
The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites.
A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced.
The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from
Ms. Gerdon’s sample.
After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding
reported by the laboratory that her sample contained marijuana metabolites.
Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections.
The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body.
Ms. Gerdon testified that her ex-husband abused her.
Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband.
Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center.
Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident.
Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta,
Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac.
Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship.
The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate.
Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches.
Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee:
. . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a
test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out.
Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee.
Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana.
None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites.
Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test.
Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results.
As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for
persons to ingest marijuana without knowing that they were doing
so.
It was not clear why LabCorp’s testing of the
January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory.
Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier.
Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body.
Ms. Gerdon has failed to maintain good moral character.
The position of Correctional Officer is one of great public trust.
No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).
Petitioner is responsible for the certification and regulation of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes (2012).
Petitioner seeks to take disciplinary action against Respondent's certification as a Corrections Officer. Disciplinary action constitutes a penal proceeding, and Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been said to require:
[T]hat 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 explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005), (quoting
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Petitioner objected to the admission of Exhibit R-1, a hand-written list of medications that Respondent testified she was taking at the time of the January 14, 2011, incident. While Petitioner was not given advance notice that Respondent intended to introduce such a list as required by the Order of Pre-hearing Instructions, the list added no additional information to Respondent’s testimony other than the correct spelling of the medications. The list did not contain any medication that would result in a positive test for marijuana metabolites. Petitioner was not prejudiced by Respondent’s failure to provide it to Petitioner prior to hearing.
While Exhibit R-1 was also hearsay and does not appear to meet any exception, hearsay is admissible in administrative hearings. Although insufficient standing alone to support a finding, it may be used to supplement or explain other competent evidence. L.G.H. v. Dep’t of Child. & Fam. Servs., 735 So. 2d
548 (Fla. 1st DCA 1999).
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of Correctional Officers in the State of Florida. Among those qualifications is the requirement that a Correctional Officer possess good moral
character, as determined by a background investigation under procedures established by the Commission. §943.13(7) Fla. Stat.
Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard.
Florida Administrative Rule 11B-27.0011 is entitled “Moral Character.” The relevant portion of the rule now reads:
(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) 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.
Section 893.03 lists cannabis and tetrahydrocannabinols as hallucinogenic substances which are controlled:
893.03 Standards and schedules.— The substances enumerated in this section are controlled by this chapter. The controlled substances listed or to be listed in Schedules I, II, III, IV, and V are included by whatever official, common, usual, chemical, or trade name designated.
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(1) SCHEDULE I.— A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards. The following substances are controlled in Schedule I:
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(c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances or which contains any of their salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
* * *
7. Cannabis.
* * *
37. Tetrahydrocannabinols.
The drug tests in this case were conducted in accordance with sections 112.0455 and 440.102, Florida Statutes. Based upon Warden Palmer’s direct observation of Respondent’s symptoms and behavior, the Warden reasonably suspected Respondent had used drugs. Mitchell v. Dep’t of Corr., 675
So. 2d 162, 164 (Fla. 4th DCA 1996)(facts and inferences sufficient to justify reasonable suspicion drug testing may be based upon physical symptoms or manifestations of being under
drug influence). The required showing for reasonable suspicion, which is “something less than probable cause, but more than an inchoate and unparticularized suspicion or hunch,” was met. See
Rouse v. State, 643 So. 2d 696, 697 (Fla. 1st DCA 1994).
The statutory requirements for chain of custody were met. Armstrong v. State, 73 So. 3d 155, 171 (Fla. 2011) (sufficient showing of the chain of custody is made where the object has been kept in proper custody since the time it was under possession and control until the time of trial).
The tests, conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, revealed the presence of marijuana metabolites, and so evidenced that a Schedule I controlled substance had been injected, ingested, inhaled, or otherwise introduced into Respondent’s body.
Respondent does not contest that she tested positive, but maintains that she was not responsible because she was unaware that she had consumed a controlled substance. She testified that her mother discovered that there was “something weird” about her coffee. Warden Palmer and Lt. Hand both recalled that Respondent told Warden Palmer that she believed her son had, without her knowledge, introduced marijuana into the coffee.
The issue, then, is whether the statute and rule require Petitioner to prove that the test results were the result of illicit use, that is, that Respondent knowingly “injected, ingested, inhaled or otherwise introduced” marijuana into her body.
Under an earlier version of the rule, it had been determined that it was “not necessary for Petitioner to demonstrate that Respondent engaged in the illicit use of marijuana” but only that Respondent in fact tested positive at a level consistent with the ingestion of the drug. See Criminal
Justice Standards and Training Commission v. Cooper, Case No. 10-6276PL (Fla. DOAH Feb. 3, 2011); Criminal Justice Standards
and Training Commission v. Retureta, Case No. 03-3659PL (Fla. DOAH July 14, 2004; Fla. CJSTC Feb. 14, 2005).2/
As amended, however, the rule now includes the modifier “unlawful” before “injection, ingestion, inhalation, or other introduction of any controlled substance.” The new rule is ambiguous as to whether a positive test is deemed to be evidence of only the fact that a controlled subtance was introduced into the body, or whether it is also deemed to be evidence of “unlawful” introduction.
The rule must be interpreted to provide that a positive test result is evidence only that a controlled substance was introduced into the body, for two reasons. First,
an interpretation of the rule that a positive test provides evidence of unlawful introduction would constitute an evidentiary presumption. In a scientific sense, a drug test itself provides no evidence of how a controlled substance was introduced. If the substance was lawfully taken pursuant to a physician’s prescription, the test results would be the same.
If the controlled substance was introduced into a person’s body without their knowledge, the test results would be the same. If the test results lead to the conclusion that the introduction was unlawful, this must be a presumed fact based upon the established fact of introduction. Ibarrondo v. State, 1 So. 3d 226, 232 (Fla. 5th DCA 2008)(evidentiary presumption permits or requires a fact finder to assume the existence of a presumed or ultimate fact after certain basic or preliminary facts have already been established).
The Florida Legislature, within certain limits, may create evidentiary presumptions. See Patterson v. New York, 432
U.S. 197 (1977)(mandatory irrebuttable presumption that relieves the prosecution of the burden of persuasion on an element of an offense violates due process, but other presumptions may be permissible); Recchi America Inc. v. Hall, 692 So. 2d 153, 154 (Fla. 1997)(irrebuttable presumption was unconstitutional where test showing presence of drug at time of industrial injury did not conclusively establish that the industrial accident was
causally related to influence of the drug); State v. Rolle, 560 So. 2d 1154, 1157 (Fla. 1990)(statute providing that certain blood alcohol level was prima facie evidence that driver was under the influence was a permissive inference, not an unconstitutional presumption, because it did not preclude the introduction of other evidence). Cf. State v. Adkins, 96 So. 3d 412, 416 (Fla. 2012)(section 893.101, which expressly eliminated proof of knowledge of the illicit nature of a controlled substance in possession offenses and created an affirmative defense based upon lack of that knowledge was constitutional).
See also Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348, 1350 (11th Cir. Fla. 2012).
However, only the courts and the legislature have the power to establish presumptions; an administrative agency does not. Chandler v. Dep’t of HRS, 593 So. 2d 1183, 1184 (Fla. 1st DCA 1992)(rule could not create a presumption not specifically authorized by statute); McDonald v. Dep't of Prof'l Reg., 582 So. 2d 660, 663 (Fla. 1st DCA 1991)(state executive branch agency lacks implied or inherent power to fashion, adopt, or apply a legal presumption for application in an administrative proceeding in the absence of specific authority in a statute or the constitution). Rule 11B-27.0011(4)(d) cannot be interpreted in a fashion that would cause it to be beyond the legal authority of the adopting agency.
Second, any ambiguity in the rule as to whether the drug test provides not only evidence that a controlled substance has been introduced into the body but also evidence that that introduction was unlawful must be resolved in favor of Respondent. Liner v. Workers Temp. Staffing, Inc., 990 So. 2d 473, 477 (Fla. 2008)(ambiguity in civil statute of a penal nature construed in favor of the party alleged to have violated it, even when statute is remedial); Djokic v. Dep’t of Bus. &
Prof’l Reg., 875 So. 2d 693 (Fla. 4th DCA 2007)(penal statutes construed in favor of the licensee and against agency); Elmariah
v. Dep’t of Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990)(statutes that are penal in nature must be strictly construed, with any ambiguity interpreted in favor of the licensee).
Rule 11B-27.0011(4)(d) therefore cannot be interpreted so as to make any possible “introduction” of marijuana into the body a failure to maintain good moral character, but only an “unlawful” introduction. An element of the rule, which must be proven by Petitioner, is that the introduction of the controlled substance into the body was in fact unlawful.3/
In the absence of a direct admission or testimony, the unlawfulness of the injection, ingestion, inhalation, or other introduction of the controlled substance must be proven by circumstantial evidence. Baugh v. State, 961 So. 2d 198, 203
(Fla. 2007)(when witness testifies of his own knowledge as to the facts, that is direct evidence; circumstantial evidence is proof of facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist, citing Davis v. State, 90 So. 2d 629, 631 (Fla. 1956)).
When a criminal case is based wholly on circumstantial evidence, the evidence must be sufficient to establish each element of the offense and must exclude any reasonable hypothesis of innocence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
Here, Respondent had knowledge prior to the urine test that marijuana had been introduced into her body. When questioned by Warden Palmer, she stated, in the presence of
Lt. Hand, that she knew she would test positive for marijuana.
Respondent’s speech was slurred, her eyes were glassed over, her movements were sluggish, and she was “real jovial.” This behavior and physical appearance was that of someone currently under the influence of drugs, not of someone who had ingested marijuana days before. Respondent was under the influence of marijuana on the morning of January 14, 2011.
Respondent testified that she had drug-tested herself earlier and tested positively. It is not reasonable to believe that she had discovered marijuana in her coffee only that morning, obtained a home-test kit, tested herself, and found she
was positive, all before reporting to work for the morning shift. It is also not reasonable to believe that she had discovered that her son was putting marijuana into her coffee, confirmed through a home test, but then continued to “unknowingly” consume the coffee until Lt. Hand confronted her at the morning shift days later.
The only prescription drug which produces a positive test for marijuana metabolites is “Marinol” or its generic equivalent “dronabinol.” There is no evidence that Respondent was ever prescribed this drug. In fact, there was evidence she was not on this prescription. She testified as to the prescriptions she was taking at the time of the January 14, 2011, incident. None of the drugs on the list would cause her to test positive for marijuana metabolites. She also called in to Doctors’ Review Services asking about her test results, and offered no medical explanation for the positive test results.
There is no reasonable hypothesis to explain that Respondent was under the influence of marijuana on the morning of January 14, 2011, that she knew she would test positive for marijuana, and that she did test positive for marijuana, other than that she had knowingly and unlawfully introduced marijuana into her body. The evidence is sufficient to establish a firm conviction, without hesitancy, as to the truth of the allegation
that Respondent unlawfully introduced a controlled substance into her body.
Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character in that she unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body as evidenced by a drug test in accordance with sections 112.0455 and 440.102, Florida Statutes.
Subsection 943.1395(7) prescribes the penalties that may be imposed by the Commission in a case of this nature:
(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:
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.
Subsection 943.1395(8) goes on to provide that the Commission shall establish disciplinary guidelines, as well as set forth aggravating and mitigating circumstances. It provides in relevant part:
(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.
The Commission has established disciplinary guidelines in rule 11B-27.005, which provides in pertinent part:
When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:
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(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.
The Commission has established aggravating and mitigating circumstances in rule 11B-27.005:
The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:
Aggravating circumstances:
Whether the certified officer used official authority to facilitate the misconduct.
Whether the misconduct was committed while the certified officer was performing other duties.
The number of violations found by the Commission.
The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.
The severity of the misconduct.
The danger to the public.
The actual damage, physical or otherwise, caused by the misconduct.
The lack of deterrent effect of the penalty imposed by the employing agency.
The pecuniary benefit or self-gain to the officer realized by the misconduct.
Whether the misconduct was motivated by unlawful discrimination.
Any behavior constituting “domestic violence” defined by Section 741.28(2), F.S.
Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.
Mitigating circumstances:
The officer’s employment status in a position requiring Commission certification at the time of the final hearing before the Commission.
The recommendations of character or employment references.
The lack of severity of the misconduct.
The length of time the officer has been certified by the Commission.
Any effort of rehabilitation by the certified officer.
The effect of disciplinary or remedial action taken by the employing agency or
recommendations of the employing agency administrator.
The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.
Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.
None of the aggravating or mitigating circumstances delineated in the rule are present here to the extent necessary to warrant deviation from the discretion already vested in the Commission within the penalty guidelines.
Petitioner seeks permanent revocation of Respondent's certification. Her certification allows her to serve in the position of Correctional Officer, a position of great public trust. The conduct alleged and proven is serious; the public has a right to expect that those who enforce the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).
While there was no clear and convincing evidence of “complete” rehabilitation and substantial mitigating circumstances so as to justify deviation from the penalty guidelines, the facts suggest the appropriate penalty should be at the lower end of the applicable range. Respondent was experiencing a high level of domestic stress at the time of the incident that is no longer present. Marijuana is among the
least dangerous of the controlled substances covered by the rule. There have been no positive drug tests since the incident. There was no evidence of prior discipline.
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon 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 Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c).
DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012.
1/ References to statutes and rules are to versions in effect in January of 2011, the time the drug sample was taken, except as otherwise indicated.
2/ Prior to its amendment on June 30, 2010, the rule contained no requirement that the introduction of the controlled substance into the body be “unlawful.” While difficult to read, the old rule also appears to have created an evidentiary presumption that an act inconsistent with good moral character had been committed based upon test results alone, and to have created an affirmative defense. Retureta indicated that the rule may have been flawed, but it does not appear that the rule was ever challenged.
3/ It is often difficult to prove intention, recklessness, or knowledge in a drug testing case, which may be one reason why the Florida Legislature, unencumbered with the criterion of “failure to maintain good moral character” in setting forth employment policies, has enacted section 112.0455, Florida Statutes. The “Drug-Free Workplace Act” as it is known, provided at the time of Respondent’s testing that special risk employees such as Respondent could be discharged or disciplined by their employer for the first positive confirmed drug test for a controlled substance without any need to show illicit use.
§112.0455(7)(n)3., §440.102(11)(b), Fla. Stat. (2011); See also
McIntyre v. Seminole Cnty Sch. Bd., 779 So. 2d 639, 644 (Fla. 5th DCA 2001). It seems odd that the Drug Free Workplace Act does not grant the Commission similar authority with respect to law enforcement certifications, for it might seem that law enforcement and correction officers, if anything, should be subject to stricter standards than other employees. The rule’s incorporation by reference of the procedures set forth in section 112.4055 relies upon the authority vested by section 943.1395(7) and does not purport to rely on section 112.4055 itself as conferring any authority on the Criminal Justice Standards and Training Commission.
Elissa R. Saavedra, Esquire
Tallahassee, Florida 32302 Lorrie A. Gerdon
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
All parties have the right to submit written exceptions within 10 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.
