STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

vs. ) CASE NO. 93-3695

)

VERNICE L. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 9, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Richard E. Lober

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: W. George Allen

One River Plaza, Suite 701

305 S. Andrews Avenue Post Office Box 14738

Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUES

The central issue in this case is whether on or about September 24, 1992, the Respondent was in actual or constructive possession of a controlled substance and thereby violate Section 943.1395(6), (7), Florida Statutes, and Rule 11B-27.0011(4)(a), (d), Florida Administrative Code.

PRELIMINARY STATEMENT

This case began on April 2, 1993, when the Criminal Justice Standards and Training Commission (Commission) entered an administrative complaint against the Respondent, Vernice L. Brown. The complaint alleged that Respondent had failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, for a law enforcement officer which require that he have good moral character. More specifically, the complaint alleged that on or about September 24, 1992, Respondent had been in actual or constructive possession of a controlled substance (cocaine) as such substance had been introduced into his body.

The Respondent executed an election of rights which denied the allegations set forth in the administrative complaint. He also requested a formal hearing in connection with those charges and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 30, 1993.

At the hearing, the parties requested and official recognition was taken of the following provisions: Section 893.03, Florida Statutes; Section 893.13, Florida Statutes; and Chapter 10E-18, Florida Administrative Code. The Commission presented the testimony of the following witnesses: Janice Holland, personnel director for the City of Pompano Beach; Jennifer Bobkier, an employee of the Worker's Compensation Medical Center; Donald R. Stalons, director of the National Health Laboratories; Laurence deFuria, deputy chief of police for the City of Pompano Beach; and Frank A. Carbone, Jr. a polygraphist employed by the City of Pompano Beach. The Petitioner's exhibits numbered 1 through 5, 7, and 8 were admitted into evidence. The Respondent testified in his own behalf and presented the testimony of the following police officers all of whom are employed by the City of Pompano Beach: Daryl Stallings; Juan Nuniz Bueno; Earl

1. Fluellen; Richard Greaves; Allen Johnson; and Timothy Lettieri. Respondent's composite exhibit 2 was admitted into evidence.

   
   

   The transcript of the proceeding was filed on January 5, 1994. Specific rulings on the proposed findings of fact submitted by the parties are included in the appendix at the conclusion of this order.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent was certified by the Commission on January 22, 1981, and was issued certificate number 02-026742.

      
      

   2. At all times material to the allegations of this case, Respondent has been employed as a law enforcement officer with the City of Pompano Beach Police Department.

      
      

   3. Cocaine is a schedule II controlled substance pursuant to Section 893.03, Florida Statutes.

      
      

   4. Pursuant to Section 893.13, Florida Statutes, possession of cocaine is a felony.

      
      

   5. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug and alcohol testing for all police officers employed by the City of Pompano Beach Police Department.

      
      

   6. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992.

      
      

   7. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station.

      
      

   8. Ms. Bobkier, a WCMC employee with four and a half years experience, was responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992.

   9. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as DO482663-5.

      
      

   10. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried.

       
       

   11. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992.

       
       

   12. The courier presumably took the samples to NHL where they were given assension numbers by a NHL employee. Neither the courier nor the "assension" employee testified at the hearing.

       
       

   13. The assension number assigned to sample DO482663-5 was 3303217-5.

       
       

   14. According to Dr. Donald R. Stalons, the director of NHL, testing on assension sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m.

       
       

   15. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing.

       
       

   16. According to the test results for assension sample no. 3303217-5, such sample was positive for cocaine metabolite.

       
       

   17. The "assension number" referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   19. Section 943.1395(5), Florida Statutes, provides, in part:

       
       

       (5) The commission shall revoke the certification of any officer who is not in

       compliance with the provisions of s. 943.13(1)-(10)

       * * *

       
       

   20. Section 943.13, Florida Statutes, sets forth the minimum qualifications for certification as a law enforcement officer. Subsection (7) provides:

       
       

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

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

       
       

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

          1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

             * * *

             (d) The unlawful use of any of the controlled substances enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C.

             
             

   22. The Petitioner bears the burden of proof in this matter to establish, by clear and convincing evidence, that the Respondent has failed to meet the foregoing standard. The administrative complaint is the framework for such alleged failure. In this case, the Petitioner alleged that Respondent had been in actual or constructive possession of cocaine. Petitioner failed to prove such allegation.

       
       

   23. Considering only Petitioner's witnesses, the evidence failed to establish that Respondent's urine sample tested positive for cocaine. According to Ms. Bobkier, the sample was taken during the day of September 24, 1992, then transported by courier to the testing location that evening. According to the testing center's director, the sample purported to be Respondent's was tested during the afternoon on September 24, 1992. This discrepancy has not been explained. Obviously, if Ms. Bobkier's account of the day's events was accurate, the sample that was tested was not Respondent's. Petitioner must establish the proper evidentiary trail to connect Respondent to the sample that tested positive for cocaine metabolite.

       
       

   24. Respondent has been a police officer for thirteen years. Given the confusion over the testing results, revocation of the Respondent's certification cannot be supported by the evidence presented.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint.

DONE AND RECOMMENDED this 29th day of April, 1994, in Tallahassee, Leon County, Florida.

Joyous D. Parrish 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 29th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3695

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 12, and 21 are accepted.

2. Paragraphs 13 through 20 are rejected to the extent that they conclude the sample was Respondent's. The Petitioner failed to prove the sample was Respondent's as his sample was not transported to the testing center until approximately 7:15

   p.m. on September 24, 1992. The sample tested by NHL purported to be Respondent's sample was tested at 2:45 p.m. that same day. This would be physically impossible. To the extent that the paragraphs correctly outline the testing procedures and results at NHL, they could be accepted but are irrelevant as the sample could not have been Respondent's.

3. Paragraph 22 is rejected as it is not supported by the weight of credible evidence.

4. Paragraphs 23 through 32 are rejected as irrelevant and outside the scope of the administrative complaint.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted in a form which can be addressed by either accepting or rejecting a statement of fact. Otherwise, Respondent's proposed findings of fact are rejected as argument.

COPIES FURNISHED:

Richard E. Lober Assistant General Counsel Florida Department of

Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

W. George Allen

One River Plaza, Suite 701

305 S. Andrews Avenue

P.O. Box 14738

Fort Lauderdale, Florida 33302

1. Leon Lowry, II, Director Division of Criminal Justice Standards and Training

   Post Office Box 1489 Tallahassee, Florida 32302

   
   

   Michael Ramage, General Counsel 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.

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

   
   

   CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

   
   

   Petitioner,

   vs CASE NUMBER: L-3565

   DOAH NUMBER: 93-3695

   VERNICE L. BROWN,

   Certificate No.: 02-026742

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on October 28, 1994, in Palm Beach Gardens, Florida. It was alleged by Administrative Complaint that the Respondent had violated specified sections of Chapter 943, Florida Statutes, and Chapter 11B-27, Florida Administrative Code. In accordance with s 120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was submitted by a Hearing Officer from the Division of Administrative Hearings (DOAH) to the Commission for consideration. The Petitioner filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.

   
   

   The Commission has reviewed the Administrative Complaint, the Recommended Order, the Exceptions filed by the Petitioner, the Respondent's Response to Exceptions to Recommended Order, the transcript of the formal hearing, the documentary evidence introduced at the formal hearing, and other pertinent documents in the case file; has heard arguments of counsel; and is otherwise fully advised in the matter. The Commission finds as follows:

   
   

   1. Standards for Review

      
      

      Under s 120.57(1)(b)1O, Florida Statutes, the Commission may reject or modify the Hearing Officer's conclusions of law and interpretations of administrative rules in the Recommended Order. The Commission, however, may not reject or modify the Hearing Officer's findings of fact unless the Commission determines from a review of the complete record that 1) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with the essential requirements of the law.

      The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 195, defined "competent substantial evidence", to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."

      
      

      Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

      
      

      Nor may the Commission reduce or increase the recommended penalty in the Recommended Order without first reviewing the complete record. s 120.57(1)(b)10, Florida Statutes.

      
      

   2. Rulings on Exceptions

      
      

      The Petitioner excepts to the Hearing Officer's conclusion of law that, because the Petitioner did not "establish the proper evidentiary trail to connect Respondent to the sample that tested positive for cocaine metabolite" (RO 23), the Petitioner failed to prove that the Respondent had been in actual or constructive possession of cocaine. The Commission finds the Petitioner's exceptions to be legally well taken. Therefore, the Petitioner's Exceptions to the Recommended Order are hereby, approved, adopted and incorporated herein by reference.

      
      

   3. Findings of Fact

      
      

      The Hearing Officer's findings of fact in paragraphs 1 through 17 of the Recommended Order are approved, adopted and incorporated herein by reference.

      
      

   4. Conclusions of Law

The Hearing Officer's conclusions of law in paragraphs 18 through 21 of the Recommended Order are approved adopted and incorporated herein by reference.

However, the conclusions of law in paragraphs 22 through 24 of the Recommended Order are rejected. The Hearing Officer did not correctly apply the law of chain of custody to the facts of the instant case. The Commission agrees with the cases cited in the Petitioner's Exceptions to the Recommended Order.

It is therefore ORDERED AND ADJUDGED that:

1. The Respondent's above-referenced criminal justice certification is hereby REVOKED.

   
   

2. This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.

SO ORDERED this 1st day of February, 1995.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

THOMAS A, MYLANDER CHAIRMAN

NOTICE

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to Vernice L. Brown, 4511 N.W. 21st Street, Lauderhill, Florida 33313, and George Allen, Attorney at Law, 305 South Andrews Avenue, One River Plaza, Suite 701, Fort Lauderdale, Florida 33301, by U.S. Mail on or before 5:00 P.M., this 1st day of February, 1995.

BRENDA S. MILLER

cc: Pompano Beach Police Department

Docket for Case No: 93-003695

Orders for Case No: 93-003695