STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-343

)

HARRY T. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in the above-styled matter before J. Stephen Menton, Hearing Officer, Division of Administrative Hearings on August 29, 1989 in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint dated December 16, 1988 and filed with the Division of Administrative Hearings on January 23, 1989, Petitioner seeks to revoke the Respondent's certification as a correctional officer in the state of Florida. As grounds therefor, it is alleged that Respondent was in actual or constructive possession of cocaine, a controlled substance, and did introduce that controlled substance into his body, in violation of Section 943.1395(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.

At the hearing, Petitioner presented the testimony of Jerry Meese, Israel Sanchez, Dr. Terry D. Hall and John de Canel. Petitioner's exhibits 1, 2, 3, 4 and 5 were received into evidence.

A transcript of the proceeding was filed on September 18, 1989. Petitioner initially requested an opportunity to file posthearing Proposed Findings of Fact

and Conclusions of Law. However, by Notice filed on October 12, 1989, Petitioner waived its right to submit any proposed findings. Respondent has not filed posthearing Proposed Findings of Fact or Conclusions of Law.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact:

1. The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03.

   
   

2. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988.

   
   

3. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test.

   
   

4. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine.

   
   

5. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer.

   
   

6. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination.

   
   

7. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC.

   
   

8. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge.

   
   

9. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing.

   
   

10. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered.

    
    

11. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement.

12. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC.

    
    

13. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap.

    
    

14. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape.

    
    

15. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent.

    
    

16. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing.

    
    

17. Until immediately prior to testing, the Respondent's sample was kept in a locked box.

    
    

18. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988.

    
    

19. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services.

    
    

20. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988.

    
    

21. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances.

    
    

22. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine.

    
    

23. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry.

    
    

24. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites.

25. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms.

    
    

26. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988.

    
    

27. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.

    
    

    CONCLUSIONS OF LAW

    
    

28. 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.

    
    

29. 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.

    
    

30. 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 that an officer must:

    
    

    (7) Have good moral character as determined by background investigation under procedures established by the Commission.

    
    

31. 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).

    
    

32. Respondent freely consented to giving the urine sample for drug testing purposes and the sample was obtained lawfully. Respondent's urine, given on February 12, 1988 and April 15, 1988 contained sufficient indicia of cocaine exposure to support a conclusion that Respondent had used the drug for illicit purposes.

    
    

33. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity.

34. Rule 11B-27.0011(4), Florida Administrative Code, provides, in pertinent part:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Subsection 943.13(7),

    is defined as:

    * * *

    1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 117.03, 316.1935, 409.325, 552.22(3), (4), (5), (6),

       (7), (10), 784.011, 784.03, 784.05(2),

       790.01(1), 893.13(1) (a)3, (1) (d) 3,

       (1) (g), (2) (a), (2) (b), 914.22(2),

       944.35(3), 944.35(7) (a), 944.37, F.S.,

       or

    2. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime, or

    3. The unlawful use of any of the controlled substance enumerated in Rule 11B-27.00225.

    
    

35. Cocaine is listed among the controlled substances enumerated in Rule 11B-27.00225.

    
    

36. Respondent's use of cocaine clearly established 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 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 Harry T. Williams' correctional officer certification.

Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida.

J. STEPHEN MENTON 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 3rd day of November, 1989.

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Harry T. Williams 3545 Florida Avenue

Miami, Florida 33133

Docket for Case No: 89-000343

Orders for Case No: 89-000343