STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4653

)

JAMES C. NORMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on February 20, 1997, in Lake Butler, Florida.

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302-1489

For Respondent: James C. Norman, Pro Se

Post Office Box 651 Raiford, Florida 32083

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

On April 24, 1996, Petitioner issued an Administrative Complaint which charged Respondent with failure to maintain good

moral character as a result of Respondent’s alleged possession of cocaine, a controlled substance, and introduction of that substance into his body.

Respondent disputed the allegations of the Administrative Complaint and requested formal proceedings. On October 1, 1996, the matter was transferred to the Division Of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of three witnesses and three exhibits. Respondent testified in his own behalf, but presented no exhibits.

A transcript of the final hearing was filed with the Division of Administrative Hearings on April 22, 1997. Proposed findings of fact submitted by Petitioner have been considered in the preparation of this recommended order. At the time of preparation of this recommended order, Respondent had submitted no proposed findings.

FINDINGS OF FACT

1. Respondent is James C. Norman, holder of Correctional Probation Certificate 152252.

2. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute.

3. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute.

4. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process.

5. Pamela Langham, a licensed practical nurse for the past

   20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties.

6. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials.

7. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory.

8. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists.

9. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423.

10. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way.

11. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry.

12. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite.

    Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result

    indicated the actual presence of cocaine metabolite in Respondent’s system.

13. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.

    CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

15. Section 943.13(7), Florida Statutes, requires that any full-time or part-time certified law enforcement officer maintain good moral character.

16. Petitioner's rule policy defines failure to maintain good moral character to include “testing positive for controlled substances by urine or blood test which results in a nanogram level consistent with and/or indicative of the ingestion of a controlled substance under Chapter 893, F.S.” Rule 11B- 27.0011(4)(d), Florida Administrative Code. Cocaine is listed as a controlled substance in Section 893.03(2)(a)4., Florida Statutes.

17. The Administrative Complaint in this case specifically charges Respondent with failure to maintain good moral character as a result of unlawful possession of cocaine and introduction of that controlled substance into his body in violation of Rule 11B- 27.0011(4)(d), Florida Administrative Code.

18. Petitioner bears the burden of proving by "clear and convincing evidence" the allegations of the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

19. Petitioner’s penalty guidelines contained in Rule 11B- 27.005(5), Florida Administrative Code, document that unlawful use by an officer of any of the controlled substances specified in Section 893.13, Florida Statutes, or Rule 11B-27.00225, Florida Administrative Code, pursuant to Rule 11B-27.0011(4)(d), Florida Administrative Code, shall result in action by Petitioner, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, imposing a penalty of revocation of Respondent’s certification.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification.

DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060

(904) 488-9675 SUNCOM 488-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997.

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489

James C. Norman Post Office Box 651 Raiford, FL 32083

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

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

Standards and Training Post Office Box 1489 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004653

Orders for Case No: 96-004653