STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0238

)

TEDD B. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on June 28, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dawn P. Whitehurst, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Mr. Tedd B. Williams, Pro Se

466 East Evanston Circle

Fort Lauderdale, Florida 33312 STATEMENT OF THE ISSUES

Whether Respondent is guilty of violating Sections 943.13(7), and 943.1395(6), (7) Florida Statutes, and Rule 11B-27.0011(4)(d), Florida Administrative Code, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 10, 1993, Petitioner, Criminal Justice Standards and Training Commission (Commission), filed an Amended Administrative Complaint against Respondent, Tedd B. Williams (Williams), alleging that Williams violated Sections 943.1395(6),(7) and 943.13(7), Florida Statutes, and Rule 11B- 27.0011(4)(d), Florida Administrative Code. On January 6, 1994, Williams filed a request for an administrative hearing. The case was referred to the Division of Administrative Hearings on January 12, 1994, for assignment to a Hearing Officer. The case was originally assigned to Hearing Officer Michael M. Parrish and was transferred to Hearing Officer Susan B. Kirkland for final hearing.

At the final hearing, the Commission moved that the Amended Administrative Complaint be further amended to accurately reflect Williams' name as Tedd B. Williams rather than Tedd R. Williams. Without objection the motion was granted. The Commission also requested that it be allowed to take the testimony

of Dr. Howard Taylor via telephone. Respondent had no objection and the testimony of Dr. Taylor was taken via telephone.

At final hearing, the Commission presented the following witnesses: Diane Argenti, Sergeant William Robshaw, Dr. Howard Taylor, Dr. James Byrnes, Sergeant Larry Rogers, and Allen Greenspan. Petitioner's Exhibits 1-4 were admitted into evidence. Respondent testified on his own behalf and presented no exhibits.

The parties agreed to file proposed recommended orders within 15 days from the date of the filing of the transcript. The transcript was filed on July 28, 1994. The Commission filed its Proposed Recommended Order on August 9, 1994.

Respondent did not file a Proposed Recommended Order. The Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01.

   
   

2. Williams' social security number is 128-50-2456.

   
   

3. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973.

   
   

4. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples.

   
   

5. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4.

   
   

6. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory.

   
   

7. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape.

   
   

8. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark.

   
   

9. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4.

   
   

10. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry

    (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result.

    
    

11. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine.

    
    

12. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills.

    
    

13. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine.

    
    

14. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion.

    
    

15. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings. Subsection 120.57(1), Florida Statutes.

    
    

17. The Commission has the burden of establishing the essential elements of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

18. In the Amended Administrative Complaint, the Commission alleged that Williams failed to maintain the qualifications established in Section 943.13(7),

    Florida Statutes, which requires that a correctional officer in the State of Florida have good moral character. Additionally, the Commission alleged Williams violated Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B- 27.0011(4)(d), Florida Administrative Code.

    
    

19. Section 943.13(7), Florida Statutes provides:

    
    

    On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer . . . shall:

    * * * *

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

    
    

20. Rule 11B-27.0011(4)(d), Florida Administrative Code (1992), provides:

    
    

    (4) For the purpose of the Commission's imple- mentation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., a certified officer's failure to maintain a good moral character, as required by subsection 943.13(7), F.S., is defined as:

    * * * *

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

    
    

21. Cocaine and cocaine metabolite are among the substances enumerated in Rule 11B-27.00225, Florida Administrative Code.

    
    

22. Petitioner did establish by clear and convincing evidence that Williams did unlawfully use cocaine and as such failed to maintain good moral character as required by section 943.13(7), Florida Statutes and as defined in Rule 11B-27.00225, Florida Administrative Code.

    
    

23. Section 943.1395(6), Florida Statutes, sets forth the penalties for an officer who is not in compliance with Section 943.13(4), Florida Statutes, or who intentionally files a false affidavit established in Sections 943.13(8), 943.133(2), or 943.139(2). As a statute setting forth the penalties for violations of other statutes, the statute is not a statute which Williams could violate. Additionally, Section 943.1395(6) is not pertinent to this proceeding because Williams was not charged with a violation of any of the statutes set forth in Section 943.1395(6).

    
    

24. Section 943.1395(7), Florida Statutes, sets forth the penalties for a violation of Section 943.13(7), Florida Statutes. As such, Section 943.1395(7) is not a statute which Williams could violate except as to the violation of the terms and conditions of probationary status, which is not at issue in this proceeding.

    
    

25. Section 943.1395(7), Florida Statutes provides:

    
    

    1. Upon a finding by the Comission 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:

       1. Revocation of certification.

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

       3. 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.

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

          by the commission.

       5. Issuance of a reprimand.

          
          

26. Having considered the facts of the instant case in light of the disciplinary guidelines set forth in Rule 11B-2.005, Florida Administrative Code, and given the serious nature of the offense and the lack of any compelling, mitigating circumstances, I conclude that revocation of certification is a justified penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission

enter a final order (1) finding Tedd B. Williams guilty of having failed to

maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding.

DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 19th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraphs 2-25: Accepted in substance.

3. Paragraph 26: Rejected as subordinate to the facts actually found.

COPIES FURNISHED:

Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mr. Tedd B. Williams

466 East Evanston Circle

Fort Lauderdale, Florida 33312

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage General Counsel

Division of Criminal Justice Standards and Training

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 ten 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: 94-000238

Orders for Case No: 94-000238