STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2296

)

ANDREA WELCH JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 29, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Larry R. Handfield, Esquire

Office at Bay Point, Suite 1130 4770 Biscayne Boulevard

Miami, Florida 33143 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against her?

   
   

   PRELIMINARY STATEMENT

   
   

   On November 7, 1990, Petitioner filed an Administrative Complaint against Respondent which contained the following allegations:

   
   

   1. Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985 and was issued Certificate Number 19-85-502-01.

      
      

   2. On or about January 31, 1990, Respondent, Andrea Welch Johnson, did then unlawfully and

      knowingly be in actual or constructive possession of a controlled substance, named or described in Section 893.03, Florida Statutes, to wit: cocaine, and did introduce the said substance into her body.

      
      

   3. The actions of the Respondent did violate the provisions of Section 943.1395(5),(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 require that a correctional officer in the State of Florida have good moral character.

Respondent thereafter requested a formal hearing on the allegations made against her. On April 16, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested. Following two continuances, the hearing was finally held.

At hearing, the parties stipulated to various facts. In addition, Petitioner presented the testimony of three witnesses: Dr. Terry Hall, the laboratory director at Toxicology Testing Service; Michael R. Brown, a special agent with the Florida Department of Law Enforcement; and Dr. John Eustace, a physician who heads Mount Sinai Medical Center's Addiction Treatment Program.

Petitioner also offered one exhibit into evidence, which was admitted by the Hearing Officer. Respondent testified on her own behalf. She also presented the testimony of her husband, Lester Terry Johnson, and Dr. William Hearn, the laboratory director at the Dade County Medical Examiner's Office. She offered no exhibits into evidence.

Following the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on November 20, 1991. On December 11, 1991, and December 16, 1991, respectively, Petitioner and Respondent filed their proposed recommended orders in this matter. The proposed findings of fact contained in the parties' proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. 1/

FINDINGS OF FACT

Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985, and issued certificate number 19-85-502-01, which she still holds.

   
   

2. On January 31, 1990, Respondent was employed by Metro-Dade County as a correctional officer and held the rank of corporal. She had been employed as a Metro-Dade County correctional officer for the previous five years.

3. On January 31, 1990, Respondent reported to Mount Sinai Medical Center (Center) in Miami Beach, Florida for a biannual physical examination required by her employer. Respondent had approximately two weeks advance notice of this examination.

   
   

4. At about 9:18 a.m., in a private area of the Center, as part of her examination, Respondent urinated into a sterile urine sample cup that had been provided by the Center. She then delivered the cup containing her urine sample to Phyllis Miller, an employee of the Center's laboratory. Miller immediately capped the sample cup and labeled it with bar code number 417002 and the laboratory reference number 83278, thus making it uniquely identifiable.

   
   

5. At about 4:14 p.m., the sealed sample cup containing Respondent's urine was delivered to Toxicology Testing Services' (TTS's) laboratory in Miami and placed in secure storage.

   
   

6. At about 8:00 p.m., TTS laboratory employee Monica Hernandez retrieved the sample cup.

   
   

7. Hernandez dispensed a portion of the urine sample from the cup and then performed an initial chemical screen to determine if there was evidence of any controlled substances or their metabolites in the urine.

   
   

8. On March 8, 1990, at about 5:00 p.m., a portion of the remaining urine in the cup was dispensed and a confirmation analysis of the urine was performed.

   
   

9. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered or adulterated since the initial collection of the urine sample.

   
   

10. Respondent's urine was analyzed by gas chromatography-mass spectrometry, an extremely reliable confirmatory testing method.

    
    

11. This confirmatory testing revealed the presence of benzoylecgonine in Respondent's urine in a concentration of 588 nanograms per milliliter.

    
    

12. Benzoylecgonine is a metabolite that is produced when cocaine is introduced into the body.

    
    

13. Cocaine is the only substance known to produce benzoylecgonine.

    
    

14. The results of the testing of Respondent's urine sample were consistent with, and indicative of, Respondent's voluntary ingestion of cocaine sometime within a two month period prior to giving the sample. 2/

    
    

15. At the time of the final hearing in the instant case, Respondent was no longer employed by Metro-Dade County as a correctional officer.

    
    

    CONCLUSIONS OF LAW

    
    

16. The instant Administrative Complaint alleges that on or about January 31, 1990, Respondent unlawfully used cocaine and that, in so doing, she violated "the provisions of Section 943.1395(5),(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 require that a correctional officer in the State of Florida have good moral character."

17. Section 943.1395(5), Florida Statutes, provides that "[t]he [Criminal Justice Standards and Training] [C]ommission shall revoke the certification of any [correctional] officer who is not in compliance with the provisions of s. 943.13(1)-(10)."

    
    

18. Section 943.13(7), Florida Statutes, provides that "any person employed or appointed as an officer shall...[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

    
    

19. "Moral character" is

    
    

    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.

    
    

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A correctional officer demonstrates a lack of "good moral character" when he engages in "acts and conduct 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." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).

    
    

20. The Criminal Justice Standards and Training Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395(5), Florida Statutes, has determined that an individual who engages in the unlawful use of cocaine is not of "good moral character," as required by Section 943.13(7). This interpretation is codified in Rule 11B-27.0011, Florida Administrative Code.

    
    

21. The evidence adduced in the instant case clearly and convincingly establishes that Respondent engaged in the unlawful use of cocaine on or about January 31, 1990, as alleged by Petitioner. Accordingly, Petitioner has met its burden of proving that Petitioner has not maintained "good moral character," as required by Section 943.13(7), Florida Statutes, and that therefore her certification is subject to revocation pursuant to Section 943.1395(5), Florida Statutes.

    
    

22. Revocation is not the only penalty that the Criminal Justice Standards and Training Commission is authorized to impose upon an officer who has failed to maintain "good moral character" following her certification. Section 943.1395(6), Florida Statutes, allows the Commission to impose lesser penalties than revocation. It provides as follows:

    
    

    Upon the 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 deemed appropriate by the commission.

    4. Issuance of a reprimand.

    
    

23. As directed by the Legislature in Section 943.1395(7), Florida Statutes, the Criminal Justice Standards and Training Commission has adopted "procedures pursuant to chapter 120 for implementing the penalties provided in subsections (5) and (6) [of Section 943.1395, Florida Statutes]." These procedures are found in Rule 11B-27.005, Florida Administrative Code , which provides, in pertinent part, as follows:

    
    

    1. The Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Subsection 943.13(7), F.S. . . . The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), F.S., will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

       
       

    2. 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.

    3. 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 mitigating circumstances:

       
       

       1. Whether the officer used his or her official authority to facilitate the misconduct;

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

       3. The officer's employment status at the time of the final hearing before the Commission;

       4. The recommendations of character or employment references;

       5. The number of violations found by the Commission;

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

       8. The danger to the public;

       9. The length of time since the violation;

       10. The length of time the officer has been certified;

       11. The actual damage, physical or otherwise, caused by the misconduct;

       12. The deterrent effect of the penalty imposed;

       13. Any effort of rehabilitation by the officer;

       14. The effect of the penalty upon the officer's livelihood;

       15. The penalties imposed for other misconduct;

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

       17. The officer's compliance with the terms and conditions of any Commission-ordered probation.

           
           

    4. The Commission may impose one or more of the following penalties, listed in increasing order of severity:

       1. The issuance of a reprimand.

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

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the Commission. The terms and conditions may include, but are not limited to: periodic reports from the officer, supervisor or counselor; indirect

          or direct supervision by Division staff or a Commission-approved supervisor; furnishing urine samples and consent to the release and analysis of results of random or scheduled drug tests; personal appearance(s) before

          the Commission; participation in psychological, occupational or substance abuse counseling; successful completion of training or retraining as specified in Subsection (5)(b) above; maintaining employment; refraining from violations of Subsections 943.13(1)-(10);

          the payment of restitution for damages or loss created by the officer's misconduct; or any other terms or conditions as appropriate.

       4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

       5. Revocation of certification.

       
       

24. In its proposed recommended order, Petitioner argues that "the appropriate penalty in this case is revocation of certification." Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the Hearing Officer agrees with Petitioner, given the seriousness of Respondent's offense and the absence of any compelling, mitigating circumstances justifying the imposition of a less severe penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of her unlawful use of cocaine on or about January 31, 1990; and (2) revoking her certification, based upon such a finding.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of December, 1991.

STUART M. LERNER

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 December, 1991.

ENDNOTES

1/ The Hearing Officer has done so notwithstanding that both proposed recommended orders were untimely filed.

2/ At hearing, Respondent offered an exculpatory explanation as to why her urine sample tested positive for cocaine. For the reasons set forth on pages 5 through 8 of Petitioner's proposed recommended order, the Hearing Officer has rejected this explanation as unworthy of belief.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2296

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1-5. Accepted and incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact of this Recommended Order.

1. To the extent that this proposed finding states that the referenced event took place on January 31, 1991, not 1990, it is has been rejected because it is contrary the greater weight of the evidence. Otherwise it has been accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that the referenced event took place on March 8, 1991, not 1990, it is has been rejected because it is contrary the greater weight of the evidence. Otherwise it has been accepted and incorporated in substance.

9-12. Accepted and incorporated in substance. Respondent's Proposed Findings of Fact

History

1. To the extent that this proposed finding suggests that Respondent was employed by Metro-Dade County as a correctional officer on January 31, 1990, and had been so employed for the past five years, it has been accepted and incorporated in substance. To the extent that it suggests that she was employed by Metro-Dade County as a correctional officer for a total of seven years, it has been rejected because it is not supported by persuasive competent substantial evidence.

2-4. Accepted and incorporated in substance.

1. Rejected because it is not supported by persuasive competent substantial evidence.

2. The instant case does not involve the "appeal of [Respondent's] dismissal" from employment. Accordingly, this proposed finding has been rejected.

7-8. Rejected because they are more in the nature of statements of the case than findings of fact.

Factual Findings

A.-E. Rejected because they are summaries of testimony not findings of fact.

COPIES FURNISHED:

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Larry R. Handfield, Esquire Office at Bay Point, Suite 1130 4770 Biscayne Boulevard

Miami, Florida 33143

Jeffrey Long, Director Criminal Justice Standards

and 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

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-002296

Orders for Case No: 91-002296