DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 04-1257PL
Respondent. )
Pursuant to notice, a hearing was conducted in this case on June 24, 2004, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative
Hearings (DOAH).
For Petitioner: Laurie B. Woodham, Esquire
Allison H. Deison, Esquire
Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
On January 31, 2003, Petitioner issued an Administrative Complaint against Respondent alleging that, "[o]n or about January 24, 2002, [he] did then test positive for a controlled substance, cocaine, by a blood and/or urine test which reflected a positive reading consistent with and indicative of the ingestion of a controlled substance listed in Chapter 893, Florida Statutes," in "violat[ion] [of] the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(d), Florida Administrative Code," and that, in light of this unlawful conduct, the taking of disciplinary action against him was warranted.
On April 12, 2004, Petitioner filed with DOAH a Request for Assignment of Administrative Law Judge "request[ing] that [DOAH] assign an Administrative Law Judge in the above-styled cause." DOAH thereafter made the requested assignment.
As noted above, the final hearing in this case was held on June 24, 2004.1 Testifying on behalf of Petitioner were: Lieutenant Cynthia Machanic of the Miami-Dade County Police Department; and Dr. Terry Hall, the laboratory director of
Toxicology Testing Services, Inc. Testifying on behalf of Respondent were: H. Chip Wells, the director of the forensics toxicology laboratory in the University of Miami School of Medicine's Department of Pathology; Sergeant Shirley Key of the Miami-Dade County Police Department; Sergeant Denise Bernhard of the Miami-Dade County Police Department; Officer Rene Avila of the Miami-Dade County Police Department; Officer Miguel Perez of the Miami-Dade County Police Department; Officer Steven Guthas of the Miami-Dade County Police Department; Officer Eduardo Torga of the Miami-Dade County Police Department; Officer Israel Hernandez of the Miami-Dade County Police Department; Officer Robert Hourruitiner of the Miami-Dade County Police Department; Officer Aaron Sork of the Miami-Dade County Police Department; and Respondent. Petitioner offered into evidence one (composite) exhibit (Petitioner's Exhibit 1), which was admitted. Respondent offered into evidence two exhibits (Respondent's Exhibits 1 and 2), both of which were admitted.
At the close of the taking of evidence, the undersigned established a deadline (20 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
The hearing Transcript (consisting of one volume) was filed with DOAH on July 22, 2004.
August 10, 2004. It filed an Addendum to its Proposed Recommended Order on August 13, 2004. Respondent filed his post-hearing submittal on August 24, 2004.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Respondent is now, and has been since January 30, 1989, certified as a law enforcement officer in the State of Florida. He holds Law Enforcement Certificate Number 31895.
At all times material to the instant case Respondent was employed as a sergeant by the Miami-Dade County Police Department.
During his employment, Respondent was a member of the Miami-Dade County Police Department's Tactical Narcotics Team. As a team member, he came into contact with and handled controlled substances, including cocaine, in discharging his duties.
Respondent's employment with the Miami-Dade County Police Department was involuntarily terminated after his urine tested positive for cocaine.
The test was part of a regularly scheduled biannual physical examination he was required to undergo by the Miami- Dade County Police Department.
The examination was conducted the morning of
January 24, 2002, at Mount Sinai Medical Center in Miami Beach, Florida. Respondent gave the urine sample that tested positive for cocaine approximately 8:00 a.m. that morning.
Respondent had almost a month's advance written notice of the examination. The written notice he received listed "all the tests" he would be given during the examination.
Respondent could have requested that the examination be rescheduled (by "go[ing] through [his] station"), but he did not make such a request.
The urine sample that Respondent gave as part of the examination was tested and analyzed by Toxicology Testing Service, Inc. (TTS).
TTS received Respondent's urine sample "intact" (in two sealed and labeled containers) the afternoon of January 24, 2002.
One of the containers was then unsealed and its contents tested and analyzed. The other container was "kept frozen."
TTS's initial screening of the contents of the unsealed container indicated the presumptive presence of benzoylecgonine, a metabolite produced when (and only when) cocaine is ingested and metabolized in the body.
TTS then performed confirmatory testing using gas chromotography-mass spectrometry analysis.
Gas chromotography-mass spectrometry analysis is an exceptionally reliable and accurate method of confirmatory testing.2
The gas chromotography-mass spectrometry analysis, which was done on February 1, 2002, confirmed the presence of benzoylecgonine in Respondent's urine specimen at the level of
575 nanograms per milliter, a result consistent with, and indicative of, Respondent's having ingested cocaine prior to the collection of his urine specimen.
There was no umetabolized "parent cocaine" detected in the specimen.3 Neither did testing reveal the presence of cocaethylene (the metabolite formed in most, but not all, persons when cocaine is ingested together with alcohol) or ethyl ecgonine ester (a metabolite which is a "breakdown" product of cocaethylene).
It is undisputed that, in conducting its testing and analysis, TTS followed required testing protocol designed to ensure reliable results.
The results of TTS's testing and analysis were reported to the Miami-Dade County Police Department.
After receiving these results, the Miami-Dade County Police Department commenced an internal affairs investigation of the matter.
Lieutenant Cynthia Machanic was assigned the task of heading up the investigation.
As part of the investigation, Lieutenant Machanic asked Respondent to give a sworn statement explaining "how he would [have] come to have a positive drug test."
Respondent had not at any time knowingly ingested cocaine.
He therefore had to resort to speculation and conjecture to provide the explanation Lieutenant Machanic sought.
He did not remember having participated on the Tactical Narcotics Team, or having engaged in any other job- related activity, in which he would have come in contact with cocaine, close in time to his January 24, 2002, biannual examination.
The "only logical, plausible explanation" he could come up with was that, on the evening of January 22, 2002, while attending a bachelor party for a fellow Miami-Dade County police officer at the Play Pen South, a topless nightclub, one of the dancer's at the nightclub, with whom he had gotten into an argument over payment for a "lap dance," had "put something in
[his last] drink [that evening] which caused [him] to test positive for cocaine." He had not seen anyone, including any of the nightclub's dancers, "put anything in [any of his] drink[s]" that evening, but he had left his last drink unattended before consuming its contents and he felt, at the time he was questioned by Lieutenant Machanic, that it was possible that the drink could have been tampered with when out of his sight. This last drink, a 12-ouncce beer, had been his eighth of the evening. In addition to these eight beers, he had consumed four shots of scotch while at the bachelor party.
Two dancers and a bartender at the Playpen South also gave statements during the investigative process.
Following the completion of the internal affairs investigation Respondent's employment with the Miami-Dade County Police Department was terminated.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement or correctional officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under
procedures established by the [Criminal Justice Standards and Training] [C]ommission."
At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized Petitioner to revoke the certification of a law enforcement or correctional officer who has failed to maintain "good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties on the certificate holder, to wit: "[s]uspension of certification for a period not to exceed 2 years"; "[p]lacement on a probationary status for a period not to exceed 2 years"; "[s]uccessful completion . . . of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."
Such action may be taken only if the certificate holder's lack of "good moral character" is 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); Newberry v.
Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence,
except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .
the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re
Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegation(s) of lack of "good moral character" made in the charging instrument. Due
process prohibits an agency from taking penal action against a certificate holder based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Hamilton v. Department of Business and
Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67,
69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of
Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
Petitioner, which has the ultimate authority to administratively interpret the provisions of Sections 943.13(7) and 943.1395, Florida Statutes, has defined in Florida Administrative Code Rule 11B-27.0011(4) what constitutes, "[f]or the purposes of [Petitioner's] implementation of any of the penalties specified in Section 943.1395," Florida Statutes, a "[f]ailure to maintain good moral character required by Section 943.13(7)," Florida Statutes.
Pertinent to the instant case is Florida Administrative Code Rule 11B-27.0011(4)(d) which provides that such a "failure to maintain good moral character" includes:
Testing positive for controlled substances by conducting 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., and not having a specific nanogram level listed in Rule 11B- 27.00225, F.A.C., shall be an affirmative defense to this provision to establish that any such ingestion was lawful. 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.
Florida Administrative Code Rule 11B-27.00225 is entitled, "Controlled Substance Testing Procedures," and it provides as follows:
The employing agency is required to conduct a background investigation upon each applicant for certification, or employment or appointment, which shall include the analysis of a urine sample furnished by the applicant for the presence of controlled substances or metabolites, which shall be consistent with the procedures for drug testing pursuant to Section 112.0455, F.S. and Rule Chapter 59A-24, F.A.C., which have been adopted by the Agency for Health Care Administration.
The employing agency shall verify the following requirements for the collection and analysis of urine samples:
The procedures for collection sites and specimen collection complies with the requirements of Rule 59A-24.005, F.A.C.
Each applicant gave written consent prior to giving the sample for collection, analysis for evidence of controlled
substances, and disclosure of the analysis results to the employing agency and to the Commission.
The procedures for analyzing and reporting the urine sample were consistent with Rule 59A-24.006, F.A.C.
The laboratory performing the analysis did analyze the urine sample for the presence of the following seven substances:
Amphetamines (amphetamine, methamphetamine).
Cannabis or Cannabinoids.
Cocaine or Cocaine Metabolite.
Phencyclidine.
Opiates (codeine, morphine).
Barbiturates.
Benzodiazepines.
Section 112.0455(13)(a)4, Florida Statutes, authorizes the Agency for Health Care Administration (AHCA) to engage in rulemaking "concerning [among other things] [m]inimum cutoff detection levels for drugs or their metabolites for the purposes of determining a positive test result, not inconsistent with other provisions established by law."
AHCA has exercised such rulemaking authority. It has set forth such "[m]inimum cutoff detection levels" in Florida Administrative Code Rule 59A-24.006(4), which provides, in pertinent part, as follows:
Initial Test. The initial screen for all drugs shall be an immunoassay . . . .
1. Levels on initially screened urine specimens which are equal to or exceed the following shall be considered to be presumptively positive and submitted for confirmation testing:
* * * Cocaine (benzoylecgonine) 300 ng/ml
* * *
Confirmation Test. All specimens identified as presumptively positive on the initial test shall be confirmed using mass spectrometry/mass spectrometry (MS/MS) or gas chromatography/mass spectrometry (GC/MS) . . . . All confirmations shall be done by quantitative analysis.
1. Levels on confirmation testing for urine specimens which are equal to or exceed the following shall be reported as positive:
* * * Cocaine (benzoylecgonine) 150 ng/ml
In view of the foregoing, furnishing a urine specimen having a "confirmed nanogram level" of 150 nanograms per milliliter or above constitutes "[t]esting positive" for cocaine within the meaning of Florida Administrative Code Rule 11B- 27.0011(4)(d).
Accordingly, Petitioner may establish a certificate holder has "fail[ed] to maintain good moral character" and is therefore subject to disciplinary action pursuant to Section
943.1395, Florida Statutes, by presenting clear and convincing evidence that testing of the certificate holder's urine specimen, conducted in a manner consistent with the requirements of Florida Administrative Code Rule 11B-27.00225 (which incorporates the requirements of Section 112.0455, Florida Statutes, and Florida Administrative Code Rule Chapter 59A-24), revealed such a "confirmed nanogram level."
Florida Administrative Code Rule 11B-27.0011(4) does not require Petitioner to prove that there was a knowing or unlawful ingestion of cocaine. See Department of Law
Enforcement, Criminal Justice Standards and Training Commission v. Rutureta, Case No. 03-3659PL, 2004 WL 1588971 *6 (Fla. DOAH
July 14, 2004)(Recommended Order).
Proof of a positive test result, however, while sufficient to meet Petitioner's burden of proof, does not conclusively establish the certificate holder's "failure to maintain good moral character." The certificate holder has the opportunity "to present an affirmative defense of accidental or lawful ingestion of a controlled substance, regardless of the level of cocaine in his urine." Department of Law Enforcement, Criminal Justice Standards and Training Commission v. Rutureta, 2004 WL 1588971 *6.
In the instant case, at the final hearing, Petitioner presented clear and convincing evidence that Respondent
"[t]est[ed] positive" for cocaine within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d). In response to Petitioner's evidentiary presentation, rather than challenging the accuracy of the test results Petitioner offered into evidence, Respondent sought to establish that his ingestion of cocaine was unknowing and therefore not indicative of a lack of "good moral character." He attempted to do so through his own testimony, as well as the testimony of police officers with whom he had worked and socialized during his employment with the Miami-Dade County Police Department, plus the testimony of an expert witness, H. Chip Walls, the director of the forensics toxicology laboratory in the University of Miami School of Medicine's Department of Pathology.
Respondent testified with apparent candor and sincerity that he had never knowingly ingested cocaine. As he had done in the sworn statement he gave to Lieutenant Machanic during the Miami-Dade County Police Department's internal affairs investigation, Respondent speculated that one of the dancer's at the Playpen South had surreptitiously "put something in [his] drink [the evening of January 22, 2002, when he was attending a fellow officer's bachelor party there] which caused [him] to test positive for cocaine." The police officers that took the stand on Respondent's behalf testified that they had no indication that Respondent had ever engaged in illicit drug use.
Mr. Walls gave expert testimony that the test results Petitioner offered into evidence against Respondent are not inconsistent with Respondent's having unknowingly ingested cocaine that had been put in his drink on the evening of January 22, 2002. In giving this testimony, Mr. Walls pointed to a scientific study revealing that not all persons who ingest cocaine and alcohol simultaneously produce "cocaine alcohol related metabolites in their [urine] samples."
Petitioner countered with testimony from its own expert, Dr. Terry Hall, TTS's laboratory director. Dr. Hall testified that, if Respondent had indeed ingested cocaine and alcohol simultaneously on the evening of January 22, 2002, he would "expect" the metabolite ethyl ecgonine ester to have been present in the urine sample that Respondent gave at 8:00 a.m. on January 24, 2002 (which it was not). With respect to the study Mr. Walls referenced in his testimony, Dr. Hall testified that he was "not aware of that study," although he conceded, when questioned by Respondent, that that "doesn't mean that it never happened,"4 explaining as follows:
There's a lot of literature out there and, you know, I try to keep up with it. There may be a study that I don't know about.
Other than Respondent's test results and Dr. Hall's expert testimony, Petitioner offered no evidence demonstrating that Respondent had used cocaine.
The undersigned is inclined to believe, based upon Mr.
Walls' testimony, that it is theoretically not an impossibility that Respondent's testing positive for cocaine was the result of his consuming an alcoholic drink the evening of January 22, 2002, that, unbeknownst to him, contained cocaine.5 However, even if such were a theoretical impossibility, as Petitioner argues, the undersigned would nonetheless still find that Respondent at no time knowingly ingested cocaine, as he testified at hearing (and that there must be some other explanation for Respondent's positive test result). Respondent was an extremely convincing, persuasive, and credible witness despite his obvious interest in the outcome of the proceeding.
His exculpatory testimony was entirely believable (particularly in light of the unrebutted testimony of his fellow officers regarding the absence of any indication of his use of illicit drugs and the fact that he knew about the January 24, 2002, drug test almost a month in advance and could have asked to have it rescheduled, but did not). Respondent's denial of having knowingly ingested cocaine therefore has been credited, notwithstanding its self-serving nature. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous situation indeed if the testimony of the one against whom a complaint is lodged could never form the basis for competent substantial evidence."); Florida Publishing Company v. Copeland,
89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the testimony of the plaintiff, although uncorroborated, '. . . if reasonable on its face, and believed and accepted by the jury as true can carry the burden of proof.'"); Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for licensure was not incompetent and could be relied upon "as competent substantial evidence to support [hearing officer's] conclusions" in proceeding in which applicant was a party); and Raheb v. Di Battisto, 483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not persuaded, as urged, that the testimony of the
plaintiff . . . should have been rejected by the trial court as inherently incredible; it was the trial court's function, not ours, to weigh the testimony and evidence adduced in the cause based on its observation of the bearing, demeanor, and credibility of the witnesses appearing in the cause."). Compare with Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission v. Odom, Case No. 94-4169, 1995 WL 1052731 *3-4 (Fla. DOAH August 8, 1995)(Recommended Order),6 where the hearing officer made the following findings, among others:
In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible,
the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life.
There was other evidence that was considered in determining the cred[i]bility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening.
There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991.
From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance.
Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent.
It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible.
Having determined that Respondent was telling the truth when he testified that he never knowingly ingested cocaine, the undersigned concludes that there is not clear and convincing evidence supporting a finding that Respondent engaged in the conduct alleged in the Administrative Complaint.
Absent such evidence, the Administrative Complaint
must be dismissed.
RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case.
DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
1 The hearing was originally scheduled to commence on June 10, 2004, but was continued at Respondent's request.
2 Pursuant to Section 112.0455, Florida Statutes (with which any drug test relied upon by Petitioner for purposes of taking disciplinary action against a certificate holder must comply), "[a]ll positive initial tests shall be confirmed using gas chromatography/mass spectrometry (GC/MS) or an equivalent or more accurate scientifically accepted method approved by the Agency for Health Care Administration as such technology becomes available in a cost-effective form."
4 In its Proposed Recommended Order, Petitioner complains that Mr. Walls "did not say who conducted the study, when it was conducted, who it included, or produce a copy of it." While this is true, Petitioner, although it had an opportunity to question Mr. Walls on these matters at hearing, failed to do so.
5 In evaluating their testimony, the undersigned has taken into consideration, but not found dispositive, that Dr. Hall (who has a Ph.D. in chemistry) has more formal education than Mr. Walls (who has neither a masters nor a doctorate degree, but does have
30 years of experience as a forensic toxicologist). See Webb v. Olin Mathieson Chemical Corp., 342 P.2d 1094, 1097 (Utah 1959)("Conceded that defendant is correct in its claim that its expert witnesses had more formal education and training than some of those relied upon by the plaintiff, that is not the only basis for judging the reliability of testimony.").
6 Petitioner adopted the hearing officer's Recommended Order in its entirety in the Final Order it issued in the case on November 8, 1995.
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
Allison H. Deison, Esquire
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.
