STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

WILLIE B. WARD, )

)

Respondent. )

Case No. 03-4060PL

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on December 16, 2003, in Sebring, Florida.

APPEARANCES

For Petitioner: Laurie B. Binder, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the

Administrative Complaint, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Respondent is certified by Petitioner as a correctional officer in the State of Florida. In an Administrative Complaint dated August 9, 2002, Petitioner alleged that Respondent violated the provisions of Chapter 893 and Section 943.1395(6) and/or (7), Florida Statutes (2001), and Florida Administrative Code Rule 11B-27.0011(4)(d) and that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes (2001), which requires that correctional officers in the State of Florida have good moral character.

Respondent filed an Election of Rights form disputing the allegations set forth in the Administrative Complaint and requesting a formal hearing. The case was referred to the Division of Administrative Hearings on November 3, 2003.

Following discovery, a formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes (2003), on December 16,

2003.

At the hearing, Respondent failed to appear at the appointed time and place. Diligent search and inquiry failed to locate Respondent. The hearing was convened at 9:20 a.m., December 16, 2003. Petitioner presented the testimony of three witnesses: Lieutenant David Paeplow, Highlands County Sheriff's

Office; Phyllis K. Chandler, LabCorp; and John C. Eustace, M.D., medical review officer for the National Medical Review Corporation, and offered eight exhibits which were admitted into evidence. Respondent did not appear or offer evidence in his own behalf.

Petitioner agreed that the time for filing proposed recommended orders was 14 days from the filing of the transcript. The Transcript was filed on February 2, 2004. Petitioner filed its Proposed Recommended Order on February 16, 2004. Respondent has failed to file his proposals as of the date of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000.

2. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002.

3. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody

   Control Form and on the label affixed to each specimen bottle was correct.

4. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test.

5. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form.

6. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace.

7. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of

   cannabinoid. It did not change the positive result; it merely quantified it.

8. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive.

9. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent.

10. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation.

11. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container.

12. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy.

13. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office.

14. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings had jurisdiction over the subject matter and parties in this proceeding pursuant to Sections 120.569, 120.57(1) and 120.60, Florida Statutes (2003).

16. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, correctional officers, and correctional probation officers throughout the state pursuant to Sections 943.085 through 943.255, Florida Statutes (2001), and is authorized to discipline those licensed thereunder who violate the law.

17. Revocation of license proceedings are penal in nature, State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate,

    592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of

    
    

    Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant

    and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and

    Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Section 943.13, Florida Statutes (2001), establishes the minimum qualifications for law enforcement officers in Florida, including at Subsection (7):

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

    
    

19. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied a license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are dissimilar to the instant case, the court's definition of moral character is significant.

    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.

    Id. at 1105. See Florida Board of Bar Examiners v. G. W. L.,

    
    

    364 So. 2d 454, 458 (Fla. 1978). See also White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

20. The position of law enforcement officers and correctional officers is one of great public trust. There can be no more basic public expectation than that those who enforce the laws, must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1985).

21. Florida Administrative Code Rule 11B-27.0011(4) defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. This was the applicable rule in effect at the time Respondent allegedly committed the violations set forth in the Administrative Complaint. The Rule states in relevant portion:

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

       
       

       * * *

       
       

       (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

       
       

       1. Section . . . 893.13, . . .

       F.S. . . .

22. Section 943.1395(7), Florida Statutes (2001), provides that:

    Upon a finding by the commission that a certified officer has not maintained good moral character . . . the commission may enter an order imposing . . . penalties [which include revocation, suspension, probation and/or a reprimand].

    
    

23. Florida Administrative Code Rule 11B-27.005 provides, in pertinent part:

    1. The Commission sets forth in paragraph (5)(a)-(d), of this rule section, a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Section 943.13(7),F.S. . . The disciplinary guidelines are based upon a "single count violation" of each provision listed. . . .

       
       

    2. When the Commission finds that a certified officer has committed an act which violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       
       

       * * *

       
       

       (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

       Violation:

       
       

       * * *

       
       

       11. Possess or delivery without consideration, and not more

       than 20 grams of Cannabis (893.13, F.S.) Recommended Penalty Range:

       * * * [11.] Revocation

       * * *

       
       

    3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to

       . . . an administrative law judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. . . .

       
       

24. Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes (2001), and Florida Administrative Code Rule 11B-27.0011(4)(b) by unlawfully testing positive for the presence of cannabis on April 22, 2002.

25. Respondent has failed to demonstrate that any mitigating circumstances exist in this case. In fact, during an interview, Respondent admitted that he tested positive for marijuana within the previous year and a half of this test.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows:

1. Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001).

2. Respondent's certification be revoked.

DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 27th day of February, 2004.

COPIES FURNISHED:

Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Willie B. Ward 1043 Booker Street

Sebring, Florida 33870

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement 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 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: 03-004060PL

Orders for Case No: 03-004060PL