DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 99-2824
RICHARD D. BEACH, )
Respondent. )
Pursuant to notice, a formal hearing was held in this case on January 25, 2001, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
For Respondent: John A. Stanton, Esquire
The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Prior to the hearing, the parties stipulated to the following: 1) Respondent was certified by the Criminal Justice Standards and Training Commission on August 19, 1991, and was issued Correctional Certificate No. 51168; 2) paragraph 2 of the Administrative Complaint; 3) the authenticity, accuracy, and relevancy of the positive drug tests administered on Respondent's urine sample submitted February 28, 1996; 4) the authenticity and relevancy of Respondent's independent negative drug test, submitted March 6, 1996; 5) the only testimony required as to the drug tests would be to the result and any interpretation thereof; 6) Joint Exhibits 1, 2, 3, and 4; 7)
Respondent's Exhibit 1; and 8) Petitioner's Exhibits 1 and 2.
At the hearing, the Petitioner presented the testimony of eight witnesses. The Respondent testified in his own behalf.
After the hearing, the parties had ten days thereafter in which to file their proposed recommended orders. A joint motion was filed by the parties for an extension of time in which to file their proposed recommended orders. The motion was granted by the Administrative Law Judge, giving the parties until
March 22, 2001. Petitioner filed its Proposed Recommended Order
on March 22, 2001.
On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999.
The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen.
In 1996, the month of February had 29 days.
In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie
Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test.
Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test.
Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing.
In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana.
Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test.
On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana.
Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field.
Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996.
The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any
marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case.
Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present.
On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism.
Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden.
Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana.
Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 943.13(7), Florida Statutes, provides that any person employed or appointed as a correctional officer in the State of Florida shall "[h]ave good moral character as determined by a background investigation under procedures established by the commission."
Section 943.1395(7), Florida Statutes, has authorized Petitioner to revoke the certification of any officer who has failed to maintain "good moral character . . . " as required by Section 943.13(7), Florida Statutes, or, alternatively, to impose specified, lesser penalties upon the officer.
Section 943.1395, Florida Statutes (1995), establishes the criteria for the revocation or discipline of an officer's certificate upon a finding that the officer failed to maintain good moral character:
(7) 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:
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.
In those cases where revocation or suspension of an officer's certification is sought based upon the officer's alleged failure to maintain "good moral character," the failure must be established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d
932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla.
1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA
1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional
Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), moral character was defined as follows:
Moral character as used in this statute, means 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.
In Florida Board of Bar Examiners Re: G.W.L., 364 So.
2d 454 (Fla. 1978), the Florida Supreme Court stated:
In our view a finding of lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of 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.
See also White v. Beary, 237 So. 2d 263, (Fla. 1st DCA 1970).
Rule 11B-27.0011(4), Florida Administrative Code (1995), provides a definition of "good moral character" for purposes of implementation of disciplinary action upon Florida correctional officers. The rule states in pertinent part:
(4) For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
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(d) Testing positive for controlled substances by conducting a urine or blood test that results in a confirmed nanogram level pursuant to the Rule 11B-27.00225, F.A.C., or is consistent with and indicative of the ingestion of a controlled substance pursuant to Chapter 893, F.S. [ . . .]. Any test of this kind relied upon by the Commission for disciplinary action, shall comply with the requirements for reliability and integrity of the testing process pursuant to Rule 11B-27.00225, F.A.C.
Marijuana is a controlled substance under Section 893.03(1)(c)7, Florida Statutes.
Respondent regularly smoked marijuana such that he tested positive on an unannounced drug test on February 28, 1996. By March 6, 1996, the level of marijuana in his system was below the cut-off level of 50 nanograms of THC.
There was no evidence of accidental or unknowing ingestion of marijuana by the Respondent. Respondent thought the positive tests were wrong. There was no evidence that indicated the urine tests were incorrect or had been corrupted.
Section 11B-27.005(6), Florida Administrative Code (1998), sets out the range of disciplinary guidelines that shall be imposed on officers who are determined to have violated the "good moral character" requirement found in Section 943.13(7), Florida Statutes, to wit:
(5) When the Commission finds that a certified officer has committed an act which violates Section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:
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(d) Notwithstanding paragraph (4), below, for the unlawful use by the officer of any of the controlled substances enumerated in section 893.13, F.S. or 11B-27.00225, F.A.C., as described in 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of the complete rehabilitation and substantial mitigating circumstances, shall be to impose a penalty of revocation.
There is no evidence of any rehabilitation by Respondent, nor were any mitigating circumstances presented under Section 11B-27.005(6), Florida Administrative Code, that would justify a deviation from the penalty guidelines. Further, Respondent presented no mitigating circumstances under Section 11B-27.005(6), Florida Administrative Code, that would justify a deviation from the penalty guidelines.
Clear and convincing evidence established that Respondent regularly used marijuana and that he lacks good moral character, such that he should not be permitted to remain a certified correctional officer.
The penalty guideline for the offenses charged pursuant to Section 11B-27.005(6), Florida Administrative Code,
is revocation.
That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked.
DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2001.
Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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.
