STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

LEVENTE HENTER,

Respondent.

/

Case No. 13-4262PL

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy, by video teleconference at sites in Tallahassee and West Palm Beach,

Florida, on March 14, 2014.

APPEARANCES

For Petitioner: Jeffrey Phillip Dambly, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUES

The issue is whether Respondent, a certified law enforcement officer, tested positive for marijuana metabolites, indicating the unlawful use of a controlled substance, as Petitioner

alleges; if so, whether and what discipline should be imposed against Respondent’s certificate?

PRELIMINARY STATEMENT

On January 30, 2013, the Criminal Justice Standards and Training Commission (the Commission) filed an Administrative Complaint against Levente Henter (Respondent), alleging that Respondent, a certified law enforcement officer, lacked good moral character because he tested positive for marijuana, a controlled substance under chapter 893, Florida Statutes. On or about February 20, 2013, Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On November 1, 2013, the matter was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge. The matter was originally assigned to Administrative Law Judge John G. Van Laningham and then transferred to the undersigned on March 5, 2014.

At the final hearing, which took place on March 14, 2014, the Commission called the following witnesses: Curtis Krauel, Brian Brunelli, Sarah Wages, John Cerulli, Nancy O’Dette, and Benjamin Droblas. Petitioner’s Exhibits A, B, D, E, and H, page 72, were admitted in evidence. Respondent testified on his own behalf and called the following witnesses: Claudia

Perratore, Randy Clouette, Ronald Bell, and Curtis Krauel. Respondent’s Exhibits 1 through 4 were admitted.

The final hearing Transcript was filed on April 29, 2014. The Commission and Respondent timely filed proposed recommended orders that have been considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes and Florida Administrative Code refer to the 2012 version.

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer, having been issued certificate number 240412 on May 17, 2004. At all times material hereto, Respondent was employed by the Town of Palm Beach Police Department (the Town).

2. On June 24, 2012, at approximately 1:20 a.m., Respondent responded to an alarm call. As he was leaving the scene, Respondent, who was driving a city police vehicle, pulled into a private driveway and failed to see a low hanging metal chain hanging across the driveway attached to two concrete pillars.

   The chain struck the front end of the vehicle, and, as Respondent continued forward, the chain rode up the front hood and struck the windshield.

3. As a result, the vehicle sustained multiple scratches across the hood, a cracked windshield, a broken side view mirror, and a cracked front lens plate.

   
   

4. Watch commander, Captain Curtis Krauel (Krauel), was on the scene at the time the accident occurred. Krauel estimated the damage to the vehicle to be approximately $500.00. However, it was very dark and this was a rough estimate only.

5. In relevant part, the Town’s comprehensive alcohol and drug abuse policy, procedure number 1-06-5(d), provides that the Town may require an employee to submit to tests for the presence of alcohol or illegal drugs:

   Whenever an employee is involved in an accident while operating a town vehicle or while working for the town, which results in one or more of the following:

   
   

   1. A citation issued to the employee;

      
      

   2. Total property damage in excess of

      $1,000;

      
      

   3. Filing of a notice of injury under Workers Compensation.

      
      

6. Because Krauel was not certain of the amount of damage to the vehicle, he instructed Respondent to report back to the station for drug and alcohol testing. Krauel had no concerns prior to the accident regarding any illicit drug use by Respondent. However, he knew that this accident would require a property damage report and that the Town’s policies mandate testing.

7. This was Respondent’s first accident in seven years, and he was upset. Krauel told Respondent he believed the damage was

   
   

   minor. Respondent disputed that an alcohol or drug test was necessary. Respondent had been studying for the sergeant’s exam and was aware that the policy had a minimum $1,000.00 damage threshold.

8. Krauel contacted his sergeant and both believed the threshold necessary for testing was $500.00 worth of damage. However, as Krauel explained at the final hearing, he is not a property appraiser, and he needed to make a ballpark estimate in the dark. Krauel knew that he could not really tell the damage until the morning; therefore, the most prudent option was for him to send Respondent for drug and alcohol testing.

9. Property Damage Appraisers Fort Pierce examined the vehicle and provided a repair estimate of $1,844.24.

10. Respondent, in compliance with the order issued by his supervisor, reported back to the station on June 24, 2012, at approximately 2:11 a.m., and gave a specimen of his urine, by urinating in a sterile, previously unused specimen cup provided to him by Nancy O’Dette (O’Dette)(formally Nancy Richards) of NMS Management.1/

11. After Respondent urinated into the specimen cup provided to him, he handed it to O’Dette who put Respondent’s specimen into a tube, immediately sealed the tube, had Respondent initial and date the seal, and then completed the chain of custody form.

    
    

12. O’Dette labeled Respondent’s specimen with his Social Security number and also assigned it a unique specimen number, 9263743, making it uniquely identifiable as Respondent’s June 24, 2012, urine sample.

13. The vial containing Respondent’s urine specimen was sealed with a label that would not allow the vial to be opened again without breaking the seal created by the label.

14. O’Dette packaged the vial containing Respondent’s urine specimen in a bag which she also sealed and labeled as Respondent’s June 24, 2012, urine sample. She then placed the bag in a pickup box at NMS Management to await pickup by a courier for delivery to laboratories of Quest Diagnostics (Quest).

15. Specimen number 9263743 was received at the laboratories of Quest in Tucker, Georgia, on June 26, 2012, where it was assigned the unique laboratory accession number 328410K for purposes of drug testing analysis by Quest.

16. Quest maintained chain of custody procedures in handling Respondent’s specimen until it was unsealed by qualified laboratory personnel at the Quest laboratory and subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine.

17. Quest 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 Quest to make reports of the results of its testing.

18. 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 is broken down by the liver, producing the marijuana metabolite, which is excreted through the kidneys.

19. Quest conducted immunoassay and confirmation testing on specimen number 9263743. Quest’s confirmatory laboratory analysis of Respondent’s urine specimen was found by qualified Quest personnel to be positive for the marijuana metabolite in a concentration of over 1500 ng/mL.

20. Any quantitative level of the marijuana metabolite detected above 15 ng/mL using the "GC-MS" methodology is considered a positive test result.

21. Dr. Benjamin Droblas, a medical doctor and the medical review officer for Healthcare Center of Miami, reviewed the report from Quest reflecting the results of the analysis of Respondent’s urine specimen. On June 29, 2012, Dr. Droblas discussed the test result by telephone with Respondent.

    Dr. Droblas’ purpose for contacting Respondent was to ascertain if he could provide any legitimate explanation for the positive test result. Respondent did not provide Dr. Droblas with any

    
    

    explanation for the positive test result and denied using marijuana.

22. The test results from the analysis of Respondent’s urine specimen are consistent with Respondent’s illicit cannabis use prior to providing his urine specimen. Respondent did not request additional confirmatory testing on a split sample from Quest.2/

23. No evidence was introduced regarding any prior discipline against Respondent.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

25. 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.

26. This disciplinary action initiated by the Commission is a punitive proceeding in which the Commission seeks to discipline Respondent’s certification as a law enforcement officer. The Commission bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Sterne &

    
    

    Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d

    
    

    292 (Fla. 1987).

    
    

27. As stated by the Supreme Court of Florida, clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; and 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. 2d 797, 800 (Fla. 4th DCA 1983)).

28. The Administrative Complaint asserts that the actions of Respondent violated the provisions of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B- 27.0011(4)(d), in that Respondent has failed to maintain the qualifications established in section 943.13(7), which require that a law enforcement officer in the State of Florida have good moral character.

29. Section 943.1395(7) and (8) provide:

    
    

    (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.

    
    

30. The Commission has defined "good moral character" for purposes of section 943.1395(7), in 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) 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.

    
    

31. The drug test taken by Respondent was administered in a manner consistent with sections 112.0455 and 440.102. Even assuming arguendo that Respondent’s assertion is accurate, that O’Dette failed to place a bluing agent in the toilet or require him to wash his hands without soap and water prior to providing the urine specimen, no credible evidence was presented to demonstrate that such actions would result in contamination of the sample as to result in a positive test result for marijuana metabolite. No credible explanation was provided for any reason for Respondent’s urine to test positive for marijuana metabolites other than his unlawful ingestion of an illicit substance.

32. The only prescription drug which produces a positive test for marijuana metabolites is Marinol. There is no evidence

    
    

    that Respondent was ever prescribed this drug. Respondent offered no medical explanation for the positive test results.

33. Testing positive for marijuana metabolites, as established by the evidence in this case, is a violation of good moral character as the term is defined in rule 11B-27.0011(4)(d). Rule 11B-27.005(5)(d) provides that the guideline penalty range for such misconduct is prospective suspension to revocation of certification.

34. The Commission seeks permanent revocation of Respondent’s certification. His certification allows him to serve in the position of police 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).

35. The undersigned has carefully considered the Disciplinary Guidelines, as well as the aggravating and mitigating factors specified in rule 11B-27.005. It is noted that the Department did not present any evidence of prior discipline, or any evidence of suspicion that Respondent was using illicit drugs. Based on the totality of the evidence, 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

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failure to maintain good moral character, as required by section 943.13(7), Florida Statutes. It is further recommended that Respondent’s certification as a corrections officer be suspended for a period of six months, 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 20th day of June, 2014, in Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 20th day of June, 2014.

ENDNOTES

1/ Respondent asserts that O’Dette failed to collect his urine specimen in accordance with established and required protocols. Respondent claims that O’Dette failed to instruct him to empty his pockets and wash his hands prior to providing the urine specimen and that she failed to place a bluing agent in the toilet prior to his giving the sample. Respondent also alleges that O’Dette took the cup with his specimen to a room in which police officers regularly bring narcotics into the station for weighing and recording. Respondent’s expert toxicologist, Ronald Bell (Bell), opined that Respondent’s failure to wash his hands prior to providing the urine sample or the processing of the sample in the room used by O’Dette could have resulted in contamination of Respondent’s sample and the positive test result.

These assertions were contradicted by the credible testimony of O’Dette regarding her collection methodology. Although O’Dette admitted that she had no specific recall regarding the collection of Respondent’s particular sample, she credibly testified that she has taken more than 1000 samples and follows the identical procedure each time, which includes: having the subject produce identification, instructing the subject to either wash his hands or use hand sanitizer prior to urinating, placing a bluing agent in the toilet to prevent the subject from trying to dilute his specimen with toilet water, taking the urine specimen and placing it in a tube in front of the subject, capping and sealing the tube and having the subject date and initial the seal.

Further, Brian Brunelli, operations director of Quest Diagnostic’s forensic toxicology laboratory and who was accepted as an expert in toxicology without objection, explained that the testing on Respondent’s sample did not test for tetrahydrocannabinol, which is the parent marijuana compound.

According to Brunelli, the methodology used to confirm a positive marijuana test looks for the metabolite of marijuana which requires that tetrahydrocannabinol was ingested in the body and metabolized for excretion in urine. No evidence was presented to suggest that possible contamination from Respondent’s hands or the room in which the sample was processed would result in a positive test result.

2/ Respondent testified that after learning of the positive urine test for marijuana metabolites, he paid for two separate drug screening tests. First, Respondent submitted to urine screening conducted by Escreen on June 29, 2012. Second, hair specimen screening was conducted by Quest on July 10, 2012. Although Respondent and his witnesses testified that the tests indicated no presence of marijuana metabolites, no witness was presented to testify regarding the testing methodology for the urine test and no witness testified regarding the collection methodology of the hair sample. No chain of custody information was provided regarding either test. Accordingly, the undersigned finds this evidence to be unreliable and not relevant to the question of whether Respondent tested positive immediately after his accident on June 24, 2012.

COPIES FURNISHED:

Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Thomas Kirwin, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

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: 13-004262PL

Orders for Case No: 13-004262PL