Judges: WILLIAM R. CAVE
Agency: Department of Law Enforcement
Latest Update: Mar. 14, 1989
Summary: Use of urine test sufficient to establish use of marijuana which establishes lack of good moral character.
88-4000.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS )
AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-4000
)
ARTHUR W. QUICKSALL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an Administrative Hearings was held before William R. Cave, Hearing Officer, Division of Administrative Hearings, on January 10, 1989 in Starke, Florida. The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
APPEARANCES
For Petitioner: Joseph S. White, Esquire
Florida Department of Law Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: Arthur W. Quicksall, pro se
2123 Raiford Road
Starke, Florida 32091 BACKGROUND
By an Administrative Complaint dated July 19, 1988, and filed with the Division of Administrative Hearings on August 17, 1988, Petitioner seeks to revoke the Respondent's certification as a correctional officer in the state of Florida. As grounds therefore, it is alleged that Respondent was in possession of cannabis, a controlled substance, and did introduce said controlled substance into his body, in violation of Section 943.139(5) and (6), Florida Statutes, and that Respondent thereby has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, requiring a correctional officer to have good moral character.
In support of its charges, Petitioner presented the testimony of Harriet Wheeler, Theodore M. Barber, Terry D. Hall and Linda A. Hodges. Petitioner's exhibits 1 and 2 were received into evidence.
Respondent testified on his own behalf. Respondent was allowed to late file a laboratory report (a urine sample) subject to objection by Petitioner. Upon Respondent filing the laboratory report it was concluded that such report
was inadmissible in that it was hearsay and did not come within any hearsay exceptions, nor did it explain or support other evidence.
Petitioner has submitted posthearing Proposed Findings of Fact and Conclusions of Law. Although Respondent did not waive the filing of posthearing Proposed Findings of Fact and Conclusions of Law, he has failed to timely file any. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the final hearing, the following relevant facts are found:
The Respondent was certified by the Criminal Justice standards and Training Commission on July 1, 1981, and issued Certificate Number C-9209.
Effective October 1, 1987, any applicant for a position as a correctional officer with the Department of Corrections (Department) is subject to a urine drug test prior to acceptance.
The Respondent was an applicant for a correctional officer position with the Department on December 29, 1987 at Baker Correctional Institution.
The Respondent was informed on this date by the institution's personnel manager, Theodore Barber, that Respondent's consent to a drug test was necessary in order to be reemployed with the Department as a correctional officer.
The Respondent had been previously employed with the Department, but had resigned on October 1, 1987.
The Respondent voluntarily consented to submit to a urine drug test as a condition of employment.
Barber instructed the Respondent to promptly present himself at the office of Dr. Peter Gianas in Starke, Florida, to give a urine sample for drug testing.
Later that same day, the Respondent met with Harriet Wheeler, a nurse, at Dr. Gianas' office, who was responsible for the collection of urine samples for the Department applicants.
Wheeler gave the Respondent a small sterile plastic sample bottle with a metal cap and sent him into a restroom to void into the bottle.
Upon production of a quantity of his urine into the bottle, the Respondent returned the bottle to Wheeler.
Wheeler promptly sealed the bottle with its cap and then with evidence tape.
Wheeler then recorded the Respondent's social security number on a form identified with the sequential number 122852. Wheeler placed a label on the Respondent's sample bottle which also bore this number.
Wheeler placed the Respondent's bottled urine sample in a box and, within 24 hours of Respondent giving the sample, mailed the sample to Toxicology Testing Service, Miami, Florida, for testing.
Until immediately prior to shipment, the Respondent's sample was kept in a locked box.
On January 5, 1988, the Respondent's urine sample arrived at Toxicology Testing Services in Miami.
The seal placed on the bottle by Wheeler was intact.
The bottle was opened by Dr. Terry Hall, a forensic toxicologist, expert in the field of urine drug analysis.
Following a procedure designed to control the urine sample in the laboratory, Dr. Hall dispensed a small amount of the sample and introduced it into the laboratory's Hitachi 705 Analyzer for purposes of screening the sample for the possible presence of controlled substances.
The sample screened positive for cannabonoids, a metabolized derivative of cannabis created by natural processing of the drug by the human body.
Dr. Hall proceeded to perform a confirmatory analysis of the sample utilizing the gas chromatography mass spectromatry method.
This method is 99 percent accurate and is the accepted method among forensic toxicologists for identifying drugs and their metabolites.
Dr. Hall confirmed that the Respondent's urine contained a metabolite of cannabis, Nor-Delta 9, tetrahydroconnabinol 9, carbolic acid, in a concentration of 25 nanograms per milliliter. The urine sample also tested positive for codeine, but this was disregarded because Respondent was taking a medication containing codeine.
The concentration level of 25 nanograms per milliliter is the result of Respondent's voluntary use of cannabis, and not the result of "passive inhalation" as contended by Respondent. Passive inhalation occurs when a person is placed in a situation where that person is exposed to another person's marijuana smoke in a confined area. Passive inhalation, under the circumstances and conditions set out by the Respondent, could not have produced the concentration reported by Dr. Hall.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 943.1395(5) empowers the Commission to revoke the Certificate of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes.
Respondent's conduct, the illicit use of a controlled substance, purportedly violates Section 943.1395(5) and (6), Florida Statutes, In that
Respondent has failed to maintain the qualification established in Section 943.13(7), Florida Statutes, which provides:
(7) Have good moral character as determined by background investigation under procedures established by the Commission.
In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balilno
v. Department of Health and Rehabilitative Services, 94 So.2d 349 (1 DCA Fla. 1977)
As a condition for employment, a governmental agency, such as the Department, may require the applicant to consent to provide a urine sample for drug testing purposes. It is clear that Respondent freely consented to giving the urine sample for drug testing purposes and that the sample was obtained lawfully. It is equally clear that Respondent's urine, given on December 29, 1987, contained sufficient indica of cannabis exposure to support a conclusion that Respondent had used the drug for illicit purposes. To the contrary, there was insufficient evidence to support Respondent's contention that the indica of cannabis exposure was due to passive inhalation as a result of Respondent being exposed to another person's marijuana smoke in a confined area.
Respondent's use of marijuana clearly establishes that he lacks the good moral character required by Section 943.13(7), Florida Statutes, of a correctional officer. Rule 11B-27.0011(2) and (4)(d), Florida Administrative Code; Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978) and Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (1 DCA Fla. 1977). The Petitioner has sustained its burden to show that Respondent lacks good moral character. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987)
RECOMMENDATION
Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore,
RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification.
Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
SPECIFIC RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER
1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively.
COPIES FURNISHED:
Joseph S. White, Esquire
Florida Department of Law Enforcement
P. O. Box 1489 Tallahassee, FL 32302
Arthur W. Quicksall, Pro Se 2123 Raiford Road
Starke, FL 32091
Jeffery Long, Director Criminal Justice Standards Training Commission
Post Office Box 1489 Tallahassee, FL 32302
Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Docket for Case No: 88-004000
Orders for Case No: 88-004000
| Issue Date |
Document |
Summary |
|
Oct. 13, 1989 |
Agency Final Order
|
|
|
Mar. 14, 1989 |
Recommended Order
|
Use of urine test sufficient to establish use of marijuana which establishes lack of good moral character.
|
