STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

) CASE NO. 89-3310

WILLIE C. CUNNINGHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 25, 1989, in Courtroom 2-B, Alachua County Courthouse, Gainesville, Florida, a hearing was conducted in this case before Charles C. Adams. This was a formal hearing pursuant to Section 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Office of General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

For Respondent: Rodney W. Smith, Esquire

Law Firm of Rodney W. Smith, P.A. Post Office Box 628

Alachua, FL 32615 1/ STATEMENT OF THE ISSUES

The issues in this case concern an administrative complaint, Case No. L- 2051, brought by Petitioner against Respondent, alleging the failure to maintain qualifications for licensure, in that Respondent is said to have failed to have good moral character as contemplated in Section 943.13(7), Florida Statutes, and to have violated Section 943.1395(5), Florida Statutes, associated with the unlawful and knowing actual or constructive possession of cocaine, a controlled substance defined within Section 893.03, Florida Statutes. That substance is said to have been introduced into his body sometime on or about March, 1987.

PRELIMINARY STATEMENT

This case had been noticed for hearing to commence at 10:00 a.m., September 25, 1989. The hearing was delayed until 10:30 a.m., during which time Respondent's counsel was unable to secure his attendance. At the conclusion of the hearing at 12:15 p.m., Respondent had still not appeared. Having been unable to secure his clients attendance, Respondent's counsel was allowed to withdraw for all purposes except the service of the Recommended and Final Order.

This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed on October 13, 1989. The exhibits have also been reviewed. The proposed recommended order of Petitioner filed on October 24, 1989 has been considered. Its suggested facts are spoken to in an appendix to the Recommended Order.

FINDINGS OF FACT

1. Respondent holds a law enforcement certificate issued by Petitioner on March 9, 1983.

   
   

2. At times relevant to this inquiry he was employed by the Gainesville, Florida, Police Department as a patrolman. In that capacity, his duties included serving the public, issuing traffic citations, investigating automobile accidents, and making drug arrests.

   
   

3. On March 16, 1987, Lt. Alan Morrow of the Gainesville Police Department was investigating a suspect, whose name is Carlos Bartee. In the course of this investigation, Bartee told Morrow that Officer Cunningham had been seen to ingest material which Bartee believed to be cocaine. This is said to have occurred while Cunningham was on duty. Further Cunningham is alleged to have talked to Bartee about getting something to put up Cunningham's nose. This latter remark is taken to mean cocaine, in view of the comments of Morrow, who is recognized as having expertise in interpreting the vernacular associated with the use of that drug.

   
   

4. As a consequence of the assertions made by Bartee, an internal investigation was commenced by the Gainesville Police Department. In that pursuit, the locker of Cunningham was opened in his absence and a small container was found which, in Morrow's opinion, contained crack cocaine. Morrow has expertise in the field identification of that substance.

   
   

5. In furtherance of the investigation, Respondent was interviewed and offered the opportunity to submit to a urinalysis to ascertain if he had been using cocaine. He was encouraged to seek legal assistance before making a decision on that overture. He was also offered some form of test involving hair follicles which is designed to detect the presence of cocaine. He declined the opportunity for the hair follicle test but agreed to undergo a urinalysis.

   
   

6. That urine sample was given with his attorney being aware of that matter. The sample was placed in a container which was not contaminated. The giving of the sample was monitored to insure that no mistakes were made concerning whose sample it might be. The sample was sealed and protected against problems associated with the chain of custody. Respondent was asked to reveal any form of medication that he was using that might effect the results of the analysis made on the sample. He responded that he was using Ibupropen and BC powder.

   
   

7. The urine sample was subjected to several tests, the Enzyme Multiplied Immunoassay Technique (EMIT) test; the High Performance Thin Layer Chromatography (HPTLC) test; and Gas Chromatography Mass Spectrometry (GCMS) test. Each test revealed the presence of cocaine. Those substances which he had admitted using; i.e., Ibupropen and BC powder, would not effect the accuracy of these results.

8. Based upon these positive results, Respondent was terminated from his position with the Gainesville Police Department. In closing out his tenure with that Department, Captain Robert Samuel Mitchell, II, who was then the Internal Affairs Supervisor, asked Respondent why he took the test if he knew he had ingested it, taken to mean cocaine. Respondent replied that he did not think it would still be in his system that long.

   
   

9. As identified by investigators with the Gainesville Police Department, the use of cocaine was contrary to their agency policies and to Florida law.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case under the authority of Section 120.57(1), Florida Statutes.

    
    

11. Petitioner is called upon to prove, by clear and convincing evidence, that Respondent is guilty of the offenses for which he is accused. Farris v. Turlington, 512 So.2d 292 (Fla. 1987)

    
    

12. Cocaine is a controlled substance within the meaning of Section 893.03, Florida Statutes. It has been shown that Respondent ingested that substance. Such use of the substance violates Section 943.1395(5), Florida Statutes, in that it demonstrates the lack of good moral character on his part, as described in Section 943.13(7), Florida Statutes.

RECOMMENDATION

Under the circumstances set out in the Findings of Fact and based upon the Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered which revokes Willie C. Cunningham's law enforcement certificate.

DONE and ORDERED this 27th day of October, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 27th day of October, 1989.

ENDNOTE

1/ This was a limited appearance in that in the absence of his client counsel to Respondent was allowed to withdraw.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3310

The following discussion is made of Petitioner's fact proposals: Paragraphs 1-7 are subordinate to facts found.

Paragraph 8 is not necessary to the resolution of the dispute. Paragraphs 9-23 are subordinate to facts found.

Paragraph 24 is not necessary to the resolution of the dispute. Paragraphs 25-28 are subordinate to facts found.

COPIES FURNISHED:

Joseph S. White, Esquire Office of General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rodney W. Smith, Esquire

Law Firm of Rodney W. Smith, P.A. Post Office Box 628

Alachua, Florida 32615

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 89-003310

Orders for Case No: 89-003310