DEPARTMENT OF LAW ENFORCEMENT, ) DIVISION OF CRIMINAL JUSTICE ) STANDARDS AND TRAINING, )
vs. ) CASE NO. 89-6484
BRIAN A. PIERCE, )
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 18, 1990, in Miami, Florida.
The issue in this cause is whether Respondent's certification as a law enforcement officer should be revoked, or otherwise disciplined, for failure to maintain qualifications.
Petitioner filed an Administrative Complaint against Respondent seeking to take disciplinary action against him for failure to maintain qualifications, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. This cause was thereafter referred to the Division of Administrative Hearings for the conduct of a formal proceeding.
Petitioner presented the testimony of Ben W. McCardell, Edward D. Henderson, and Eugene McAllister. Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence.
Respondent testified on his own behalf and presented the testimony of Juan Seabold and Gloria Pierce. Additionally, Respondent's Exhibits numbered 1-5 were admitted in evidence.
Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
Respondent was employed by the Dade County public schools and worked as a guard in the school system's administration building for several years. As a public school employee, he was subjected to random drug testing. None of those tests indicated the presence of drugs in Respondent's system.
Over time, persons employed as police officers by the school system's Special Investigative Unit became impressed with Respondent's character and job performance and approached him regarding becoming certified as a police officer and working with the Special Investigative Unit of the Dade County public schools.
Since Respondent had always wanted to be a police officer, he attended the police academy under the sponsorship of the Dade County school system.
After graduation from the police academy, Respondent was certified by Petitioner on January 4, 1988, and was issued Certificate Number 03-87-002-04. Thereafter, he was employed as a police officer with the Dade County public schools' Special Investigative Unit.
In mid-April, 1988, Respondent and his then-fiancee went down to the Florida Keys with, and at the invitation of, another couple to spend the weekend in a time-share condominium, from Friday through Sunday.
After lunch on Saturday, Respondent and the other couple began drinking beer. They drank beer until the time that the four vacationers went to dinner. At dinner Respondent consumed several mixed drinks.
After dinner they returned to the condominium where Respondent consumed more beer. By this time Respondent was drunk. He fell asleep on the couch while his fiancee and the other couple continued talking and listening to music.
At some point Respondent began waking up. Respondent's male "friend" reached into his own wallet, took out what appeared to be a cigarette, lit it, and placed it in Respondent's hand. When Respondent, who smokes cigarettes, began smoking the item placed in his hand, he began choking.
When Respondent's fiancee demanded to know what was occurring, the "friend" replied that he was only playing a joke on Respondent and took the "cigarette" back from the Respondent. Respondent lay back down on the couch and again fell asleep.
Due to the amount of alcohol he had consumed on Saturday, Respondent remembers going back to the time-share condominium after dinner but has no recollection of anything that happened thereafter.
On the following day, the vacationers returned to Miami. No one told Respondent about the joke his "friend" had played on him.
On Monday Respondent was advised that his annual employment physical, including drug screening, would take place on Tuesday. Respondent made no attempt to avoid that physical examination, but rather appeared for his physical as scheduled.
On Tuesday, April 19, 1988, Respondent underwent his annual employment physical at Mt. Sinai Hospital. He was administered a drug test as part of that routine annual physical mandated by his employer. The employer had no reasonable suspension to drug test the Respondent.
The subsequent gas chromatography, mass spectrometry analysis performed on Respondent's urine sample produced a reading of 27 nanograms of THC metabolites, i.e., his urine test was positive for the metabolite associated with the drug marijuana or cannabinoids.
When Respondent was advised by his supervisor that his test was positive for marijuana, Respondent was shocked. He denied ever having smoked marijuana and also denied being around anyone who was smoking marijuana.
Respondent took the position that his sample must have been contaminated. When advised by his supervisors that he could have the sample re- tested, Respondent declined believing that if the sample was contaminated, the results of any re-testing would be the same.
Respondent's supervisors were also shocked that Respondent's test proved positive. They held him in the highest regard and testified at the final hearing that Respondent is an excellent police officer, that he is conscientious and reliable, and that he possesses honesty and integrity. One of his supervisors testified that he would let Respondent "watch my back" without hesitation in any situation -- the highest tribute a police officer can give to another police officer.
In spite of his supervisors' high opinion of Respondent, Respondent was fired from his employment with the school system's police unit as a result of the positive urine test results because that was that department's policy.
Respondent consistently maintained that he had never used marijuana. Believing his urine sample to have been contaminated, he hired an attorney to represent him in proving that the test results were erroneous.
Respondent consistently maintained that he did not use drugs. He maintained that he could not understand why his test was positive. At some point in an informal discussion with one of his supervisors, Respondent maintained that he did not use drugs and told that supervisor the only thing unusual that had happened prior to the drug test was that he had spent the weekend in the Keys and perhaps he had been some how exposed to marijuana there.
Some time after Respondent's termination from the school system, Petitioner filed formal charges to revoke his certification as a police officer. Some where around that time, his then-fiancee finally told Respondent what had happened in the Keys the night that Respondent was drunk. She told him she had been afraid to tell him about it since she had not told him earlier. She thought that if she had told him before he was fired, then he might have been able to avoid being fired. Since she had not told him then, she had not told him subsequently since she thought he would consider it her fault that he had
been fired and would refuse to marry her. She finally told him because of the pain he was suffering not knowing and because of the need for honesty in their relationship.
Although Respondent had no recollection of the incident described to him by her, he believed her when she told him that it had happened. Respondent then accepted responsibility for having smoked marijuana on that one occasion when he was drunk.
Respondent did not knowingly and voluntarily possess marijuana and did not knowingly and voluntarily introduce that substance into his body during that weekend in the Keys.
Respondent's consumption of marijuana in the Keys on that weekend was an isolated incident, and Respondent has not possessed or consumed marijuana prior to or subsequent to that incident.
Although Respondent exhibited poor judgment in becoming so intoxicated that evening in the Keys, Respondent does possess good moral character.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed in this cause alleges that on or about April 19, 1988, Respondent did then unlawfully and knowingly be in actual or constructive possession of a controlled substance, to-wit: cannabis, and did introduce the said substance into his body. The Administrative Complaint alleges, therefore, that the actions of Respondent violated Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character. Section 943.1395(5), Florida Statutes, provides that the Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)- (10), Florida Statutes, and provides for the investigation of grounds for revocation. However, Section 943.1395(6), Florida Statutes, relates specifically to the qualification of good moral character required by Section 943.13(7) and provides as follows:
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:
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
The definition of good moral character established by rule, as required by Section 943.1395(6), Florida Statutes, is found in Rule 11B-27.0011, Florida Administrative Code, and, as relates to this case, provides as follows:
(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
good moral character, as required by Subsection 943.13(7), is defined as:
(d) The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225.
Cannabis or cannabinoids is among the controlled substances enumerated in that rule.
Petitioner has failed to meet its burden of proof in this case. At the final hearing, the parties stipulated that Respondent's urine test was positive for marijuana. Petitioner offered no evidence regarding Respondent's use of marijuana. On the other hand, Respondent's uncontroverted evidence is that for two to three years prior to the incident in question he was subjected to random testing and no evidence of drug use was found. Respondent has denied use of any illegal drug before or after the incident in question, and no evidence to the contrary has been offered. Respondent offered believable evidence as to what occurred during that weekend in the Keys just prior to his annual physical examination. The uncontroverted evidence is that Respondent got drunk while spending a weekend in the Keys. He fell asleep on the couch and when he awoke, his assumed "friend" handed him a cigarette. He put the cigarette in his mouth and started smoking it at which time he began choking. The uncontroverted and believable evidence is that Respondent was not knowingly in actual or constructive possession of the controlled substance and did not knowingly introduce that substance into his body. No evidence was offered in this cause to show intent or knowledge.
This is not to condone the conduct of a law enforcement officer in becoming so intoxicated that he is susceptible to becoming involved in illegal activity by practical jokers who would amuse themselves by handing an intoxicated police officer a marijuana cigarette. Yet, Respondent is not charged with violating any standards of conduct for becoming intoxicated during the weekend in the Keys.
Good moral character must be viewed within the context of the facts involved. The factual allegation -- that Respondent unlawfully and knowingly was in possession of a controlled substance and introduced it into his body -- has not been proven in this cause. Therefore, Petitioner has failed to prove that Respondent lacks good moral character based upon the facts in this case. The evidence is overwhelming that Respondent is an excellent police officer, who possesses integrity and good moral character. The isolated incident of unknowing use of marijuana is factually insufficient to prove that Respondent has failed to maintain good moral character.
Petitioner's position in this case is that the use of an illegal substance, no matter what the circumstances, constitutes failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and, therefore, Respondent's certification as a law enforcement officer should be revoked. As discussed above, the evidence in this case is insufficient to prove that Respondent has failed to maintain good moral character. Even if the unknowing and unintentional use of marijuana in an isolated incident constituted failure to maintain good moral character pursuant to Rule 11B-27.0011(4)(d), Petitioner would still be required, pursuant to Section 943.1395(6), Florida Statutes, to determine the appropriate penalty on a case-by-case basis. In this case, Respondent has served a de facto suspension of his certification since his drug screening in April of 1988. In view of the circumstances of this case, and in view of the testimony from both Petitioner's and Respondent's witnesses establishing Respondent's good moral character, it is time that Respondent be permitted to return to his chosen career. The offense committed in this case is less serious than those cases in which Petitioner has imposed a suspension of certification. See, Criminal Justice Standards and Training Commission v. Wayne
W. Wooten, (Final Order entered June 8, 1988); Criminal Justice Standards and Training Commission v. Kevin W. Browning, (Final Order entered June 8, 1988); and Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission v. George Quinones, DOAH Case No. 88-4547 (Final Order entered June 19, 1989).
In short, Petitioner has failed to prove that Respondent lacks good moral character. Similarly, although Petitioner has adopted a rule which sets forth the types of conduct which Petitioner deems to constitute a lack of good moral character, Respondent has rebutted any presumption which may have been established by that rule by showing that he does possess good moral character. It is clear that Respondent enjoys a reputation for honesty and integrity and is respected by those who have come in contact with him. While he may have made an isolated error in judgment, the evidence in this case is that Respondent possesses good moral character.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative
Complaint filed against Respondent in this cause.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6484
Elsa Lopez Whitehurst, Esquire Department of Law Enforcement 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
