STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0715

)

MILTON FRANKLIN )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 29, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Milton Franklin, pro se

11635 Southwest 136th Terrace Miami, Florida 33176

STATEMENT OF THE ISSUES

Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint on November 30, 1988, seeking to revoke the law enforcement officer certification that had been previously issued to Respondent, Milton Franklin. The Administrative Complaint alleges that the Respondent had failed to maintain the qualification of good moral character. By his Election of Rights form, Respondent denied that he failed to maintain good moral character and timely requested a formal hearing of the Administrative Complaint. The formal hearing was held June 29, 1989, in Miami, Florida.

Prior to the beginning of the hearing, Respondent moved on the record to continue the hearing. This motion was denied.

At the final hearing, Petitioner presented the testimony of three witnesses and introduced two documentary exhibits. Respondent testified on his own behalf, called no other witnesses, and introduced two documentary exhibits.

Both of Petitioner's exhibits were accepted into evidence, but only one of Respondent's exhibits, Exhibit 1, was accepted into evidence. Respondent's Exhibit 2, a letter to the editor of a newspaper, was not accepted into evidence.

A transcript of the proceeding has been filed. Petitioner submitted a proposed recommended order which contains proposed findings of fact and proposed conclusions of law. A letter filed July 14, 1989, constitutes Respondent's only post-hearing submission. The proposed findings of fact contained in the parties' post-hearing submissions are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On October 8, 1968, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-13556 was duly issued to Respondent by Petitioner.

   
   

2. Respondent was employed as a police officer by the South Miami Police Department in April, 1988.

   
   

3. Respondent was directed by his employer to present himself on April 27, 1988, for an annual physical examination at Mount Sinai Medical Center.

   
   

4. Under the policy of the South Miami Police Department, all officers are required to submit to an annual physical examination, which includes an analysis of a urine sample from the officer for the presence of controlled substances.

   
   

5. The specific date on which an officer is required by the South Miami Police Department to report for his annual physical is randomly selected.

   
   

6. On the morning of April 27, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by the South Miami Police Department. At approximately 9:45 a.m., he was given a small sterile sample bottle in which he produced a sample of his urine as instructed. Nurse Joyce Hampton, the Mount Sinai employee responsible for the collection of urine samples from police officers undergoing annual physicals, received the urine sample from Respondent and promptly poured the urine sample into another sterile bottle and sealed the bottle with its cap and then with evidence tape.

   
   

7. The sealed bottle containing Respondent's urine sample was labeled so as to identify it as Respondent's urine sample and placed in a locked box. On the afternoon of April 27, 1988, the sealed bottle containing Respondent's urine sample was picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the urine sample could not be tampered with without detection.

   
   

8. On May 3, 1988, the sealed bottle containing Respondent's urine sample was opened by a laboratory analyst employed by Toxicology Testing Service. Respondent's urine was thereafter analyzed by Toxicology Testing Service. Toxicology Testing Service used adequate procedures to ensure that Respondent's

   urine sample was properly identified, that the chain of custody was properly maintained, and that the urine sample had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order.

   
   

9. A small amount of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for cocaine metabolite, a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites.

   
   

10. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled Controlled Substance Testing Procedures.

    
    

11. Respondent's urine contained a metabolite of cocaine, in a concentration of 100 nanograms per milliliter. This result was due to Respondent's use of cocaine.

    
    

12. Respondent contends his positive testing for cocaine was caused by his passive exposure to cocaine from the several cups of a type of coca tea that he drank on a daily basis. This contention is inconsistent with the results of the urine analysis and is rejected.

    
    

13. Respondent took early retirement with the South Miami Police Department on May 19, 1988, the date the Department's internal affairs investigators had asked Respondent to give a sworn statement as to his use of cocaine.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes

    
    

15. Section 943.13(7), Florida Statutes, requires that a law enforcement officer possess good moral character:

    
    

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

    
    

16. It is Petitioner's burden to prove by clear and convincing evidence that Respondent has failed to maintain good moral character. Ferris v. Turlington, 510 So.2d, 292 (Fla. 1987)

    
    

17. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105, (Fla. 1st DCA 1977), the court discussed the meaning of moral character as follows:

    
    

    Moral character...means not only the ability to distinguish between right and wrong, but the character to observe the

    difference; the observance of the rules of right conduct and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

18. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458, (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

19. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of disciplinary proceedings involving Florida law enforcement officers. The rule states, in pertinent part, as follows:

    
    

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

    
    

    (d) The unlawful use of any controlled substances enumerated in Rule 11B-27.00225.

    
    

20. Rule 11B-27.00225(3)(b)(5), Florida Administrative Code, specifies cocaine as among the controlled substances whose use evidences a certified officer's failure to maintain good moral character under Rule 11B-27.0011(4)(d), Florida Administrative Code.

    
    

21. Petitioner has established by clear and convincing evidence that Respondent failed to maintain good moral character, as that term is defined by administrative rule and by court decisions, by the use of cocaine.

    
    

22. Section 943.1395(5),(6), Florida Statutes, provide, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of an officer who fails to comply with s. 943.13(1)-(10)...

       
       

    2. 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 in lieu of revocation of certification:

       
       

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

          
          

       2. 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.

          
          

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

          
          

       4. Issuance of a reprimand.

          
          

23. Rule 11B-27.005, Florida Administrative Code provides, in pertinent part, as follows:

    
    

    1. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       * * *

       (d) For the unlawful use by the officer of any of the controlled substances enumerated in Rule 11B-27.00225, as described in Rule 11B-27.0011(4)(d), the action of the Commission shall be to impose a penalty ranging from suspension to revocation.

       
       

24. Rule 11B-27.005(4), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following circumstances:

    * * *

    (f) The number of prior disciplinary actions taken against the officer by the Commission;

    * * *

    (j) The length of time the officer has been certified;

25. In considering the penalty to be imposed against Respondent, it is appropriate to consider as mitigating circumstances, pursuant to Rule 11B- 27.005(4)(f)and (j), Florida Administrative Code, that there was no evidence that Petitioner had taken prior disciplinary action against Respondent and that he has been certified as a law enforcement officer since October 8, 1968.

    
    

26. Notwithstanding those mitigating circumstances, the use of cocaine by a law enforcement officer is serious misconduct that dictates the recommendation which follows.

RECOMMENDATION

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

Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer.

DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 18th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0715

The proposed findings of fact submitted on behalf of Petitioner are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 3.

4. Addressed in paragraph 4.

5. Addressed in paragraph 5.

6.-13. Addressed in paragraphs 6 and 7.

14-19. Addressed in paragraphs 8, 9, and 11.

The proposed finding of fact submitted by Respondent that the positive testing for cocaine was produced by a coca tea that he drank is addressed by paragraph 11.

Respondent's letter filed July 14, 1989, contains no other proposed finding of fact.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Milton Franklin

11635 Southwest 136th Terrace Miami, Florida 33176

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-000715

Orders for Case No: 89-000715