STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

JAMES M. CARUSO, )

)

Respondent. )

Case No. 03-2171PL

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on September 12, 2003.

APPEARANCES

For Petitioner: Laurie Beth Binder

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James M. Caruso, pro se

401 Northwest 103rd Avenue Apartment 252 South

Pembroke Pines, Florida 33026

STATEMENT OF THE ISSUE

The issue is whether Respondent has failed to maintain good moral character, as required by Sections 943.13(7) and

943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 9, 2002, Petitioner alleged that Respondent is a certified correctional officer, holding certification number 193831. The Administrative Complaint alleges that on November 20, 2001, Respondent tested positive for marijuana and thus violated Section 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d) by failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.

At the hearing, Petitioner called three witnesses and offered into evidence two exhibits: Petitioner Exhibits 1-2. Respondent called two witnesses and offered into evidence five exhibits: Respondent Exhibits 1-5. All exhibits were admitted.

The court reporter filed the transcript on October 14, 2003.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on October 20, 2000, and issued him certificate 193831. From March 6, 2000, to March 13, 2002, Respondent was employed as a corrections deputy by the Broward County Sheriff's Office.

2. On November 20, 2001, Respondent was ordered to report to the Sunshine Medical Center and submit to a command-referred drug test. The medical review officer at the Sunshine Medical Center was Dr. Alan Roberts, who had received extensive training in the identification of drugs in employees.

3. Respondent submitted a urine sample for testing.

   
   

   Personnel at the Sunshine Medical Center complied with all applicable policies regarding the collection, storage, transporting, and testing of urine, as well as the reporting of results. The procedure of Sunshine Medical Center is to split samples and retain one of them, so that a test subject may later request retesting of the sample, if the split sample sent to the testing laboratory has produced a positive result.

4. At the testing laboratory, American Medical Laboratories, Respondent's urine tested positive for marijuana metabolites--i.e., THC--and benzodiazepines. Respondent had a prescription for Xanax, so the presence of benzodiazepines is irrelevant to this case.

5. The test results for marijuana are at a level--170 nanograms--to preclude passive inhalation of marijuana. The initial screening by an immunoassay test was followed by gas chromatography/mass spectrometry, which is more accurate and quantifiable. This level of marijuana metabolites is inconsistent with ingestion by way of food. A positive reading

   would result for 30 days after consumption, if the subject is a regular user of marijuana, and three days after consumption, if the subject is a one-time user of marijuana.

6. On November 29, 2001, Dr. Roberts contacted Respondent and informed him of the results. Respondent stated that he had a prescription for Xanax, but did not explain how the marijuana metabolite had appeared in his urine. Dr. Roberts offered to send the split specimen to the lab for testing, but Respondent said only that he would consider that option. Respondent never got back in touch with Dr. Roberts or Sunshine Medical Center and never otherwise indicated a desire that the split sample be tested.

7. After not hearing back from Respondent regarding retesting, Sunshine Medical Center released the official results to the Broward County Sheriff's Office on December 6, 2001. When interviewed by personnel of the Broward County Sheriff's Office, Respondent offered no plausible explanation for the presence of marijuana metabolites in his urine. He provided sketchy details about a party at which he had eaten some chocolate cake that seemed stale, but could not provide the date of the party or any names of persons in attendance. Unless he were a regular user of marijuana, Respondent would have recalled more details about the party, including the approximate date, because it would have taken place just three days before the

   testing, if Respondent's consumption of marijuana at the party were a singular occurrence. Respondent's explanation of intoxication by beer, cold medication, and Xanax is insufficient to explain his total loss of memory concerning what should have been such a recent event.

8. Under the circumstances, including obvious inferences, Respondent voluntarily consumed marijuana sufficiently close in time to the date of the drug test, which revealed the presence of marijuana metabolites in Respondent's urine.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. § 120.57(1), Florida Statutes.

10. Section 943.1395(7), Florida Statutes, authorizes a range of penalties, from a reprimand to revocation, for any officer who does not maintain good moral character.

11. Florida Administrative Code Rule 11B-27.0011(4)(d) provides that the failure to maintain good moral character includes: "Testing positive for controlled substances by a urine or blood test that results in a confirmed nanogram level pursuant to 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. "

12. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and

    Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Petitioner has proved that Respondent had marijuana metabolites in his urine at a confirmed nanogram level. Additionally, Petitioner has proved that Respondent ingested the marijuana voluntarily.

14. Florida Administrative Code Rule 11B-27.005(5)(a)4. provides the penalty of revocation for the possession of a controlled substance, if the amount constituted a felony. Florida Administrative Code Rule 11B-27.005(5)(b)11. provides the penalty of revocation for the possession of a controlled substance, if the amount only constituted a misdemeanor. Notwithstanding even inferential evidence of the amount of marijuana of which Respondent was in possession, it seems that the appropriate penalty is revocation, as sought by Petitioner in its proposed recommended order.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate.

DONE AND ENTERED this 19th day of November, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2003.

COPIES FURNISHED:

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Laurie Beth Binder Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

James M. Caruso

401 Northwest 103rd Avenue Apartment 252 South

Pembroke Pines, Florida 33026

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-002171PL

Orders for Case No: 03-002171PL