STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 05-1169PL

)

VANESSA C. TROUPE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 28, 2005, and March 30, 2006, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Bonita Jones-Peabody, Esquire

11501 Northwest Second Avenue Suite 105

Miami Shores, Florida 33168

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint issued February 16, 2005, and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Law Enforcement, Criminal Justice Standards and Training Commission (CJSTC) issued an Administrative Complaint against Vanessa C. Troupe on February 16, 2005. The Administrative Complaint charged

Ms. Troupe with violating Sections 943.1395(6) and/or (7) and/or 943.13(7), Florida Statutes (2004), and/or Florida Administrative Code Rule 11B-27.0011(4)(d) by failing to maintain good moral character. Ms. Troupe disputed the Administrative Complaint and requested a hearing. On March 31, 2005, this matter was referred to the Division of Administrative Hearings.

This matter was scheduled for hearing to be held on June 3, 2005. Subsequent to be set for hearing, Ms. Troupe obtained counsel. A continuance of the hearing was requested and was granted, and the final hearing was re-scheduled for July 28, 2005. At the hearing on July 28, 2005, it became clear that Ms. Troupe had not received the complete set of CJSTC's exhibits, which were to be used at hearing. As a result, the hearing was cancelled to provide an opportunity for a complete

set of exhibits to be presented to Ms. Troupe and for discovery to be had on those exhibits, if desired. The hearing was re- scheduled for September 21, 2005. A hurricane hit the area of Miami, Florida; a continuance was granted, and the hearing was re-scheduled for October 24, 2005. Due to an impending hurricane in the area of Miami again, the hearing was canceled. Having obtained mutually-agreeable dates for hearing, the hearing was re-scheduled for January 25, 2006; subsequently, due to illness of Ms. Troupe’s counsel, the hearing was canceled and re-scheduled for March 30, 2006.

At hearing, CJSTC presented the testimony of two witnesses, including Ms. Troupe, and entered seven exhibits (Petitioner’s Exhibits numbered 1-7) into evidence. Ms. Troupe testified in her own behalf, presented the testimony of two witnesses, and entered one exhibit (Respondent's Exhibit numbered 1) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of two volumes, was filed on September 27, 2005 and April 10, 2006. CJSTC timely filed its post-hearing submission. Ms. Troupe failed to timely file her post-hearing submission, and CJSTC objected and moved for it to be stricken on the basis of neither party requesting

an extension of time, on the post-hearing submission being untimely, and no cause or reason being provided for the untimeliness. Ms. Troupe, through her counsel, filed a response opposing striking her post-hearing submission. Her counsel represented in her response, among other things, that her copy of the Transcript was not received from the court reporter until the end of April 2006 by courier, that by the time she received her copy of the Transcript she was in the midst of experiencing business problems and medical problems with her husband, who was still suffering from his illness, that an extension of time was not requested due to the aforementioned reasons, and that striking the post-hearing submission unfairly penalized

Ms. Troupe, especially since CJSTC had not been prejudiced. Even though counsel for Ms. Troupe should have requested an extension for the filing of her post-hearing submission, the reasons represented by her for not requesting an extension are considered excusable. Most importantly, no prejudice has been shown to have incurred upon CJSTC from the late-filing of

Ms. Troupe's post-hearing submission.

The parties' post-hearing submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Ms. Troupe was employed as a correctional officer with the Miami-Dade County Department

   of Corrections (Miami-Dade Corrections). She was certified by CJSTC as a correctional officer, having been issued certification number 67327.

2. Ms. Troupe had been employed with Miami-Dade Corrections for approximately 22 years. During those many years of service, she never had an attendance problem and was never reprimanded or disciplined.

3. Miami-Dade Corrections requires an annual drug screening.

4. On September 7, 2004, a urine sample was collected from Ms. Troupe at Mount Sinai Medical Center (Mount Sinai) for the purpose of testing for controlled substances.

5. Ms. Troupe had submitted urine samples at Mount Sinai many times in the past. However, on September 7, 2004, the Miami area had experienced a storm (Francis); the location at Mount Sinai for the collection of the specimen had been changed; and the lighting at the location was dim.

6. After the collection of the specimen, Ms. Troupe signed a document, entitled Specimen Collection Checklist & Chain of Custody, at the top. She signed the document indicating that her personal information at the top was correct, not that the collection of the sample was performed correctly.

7. The identity of the person who collected the specimen is not indicated on any form and could not be identified at hearing.

8. Miami-Dade County Corrections does not use the standard for the collection of urine specimens set forth at Florida Administrative Code Rule 59A-24. The expert for CJSTC testified that, at the time Miami-Dade County Corrections developed its protocol for the collection of samples, the said rule had not been promulgated and Miami-Dade County Corrections never changed its protocol to comply.

9. Section 112.0455, Florida Statutes (2004), entitled "Drug-Free Workplace Act," provides in pertinent part:

   (2) PURPOSE.--This section is intended to:

   (a) Promote the goal of drug-free workplaces within government through fair and reasonable drug-testing methods for the protection of public employees and employers.

   
   

   * * *

   
   

   (4) NO LEGAL DUTY TO TEST.--All drug testing conducted by employers shall be in conformity with the standards established in this section and all applicable rules promulgated pursuant to this section. . . .

   
   

   Section 112.0455, Florida Statutes (2004), also provides for, among other things, required procedures for "all specimen collection and testing for drugs"; drug-testing standards as to laboratories; and for the Agency for Health Care Administration

   to adopt additional rules supporting the Drug-Free Workplace Act. § 112.0455(8), (12), and (13), Fla. Stat. (2004).

10. The Agency for Health Care Administration promulgated Florida Administrative Code Chapter 59A-24, entitled "Drug-Free Workplace Standards." At Florida Administrative Code Rule 59A- 24.005, the rule addresses collection sites and specimen collection procedures.

11. The specimen collected by Mount Sinai from Ms. Troupe was transferred to Toxicology Testing Services, Inc. (TTS) by courier, logged in at TTS, and tested for controlled substances on September 8, 2004.

12. The Laboratory Director of TTS, Dr. Terry Hall, who was also the expert for CJSTC testified that the specimen was tested twice at TTS by immuno assay method (EMIT) and once by gas chromatography mass spectrometry. A positive result for cocaine metabolite of 61 nanograms per milliliter was obtained.

13. TTS conducted various tracks and internal checks on the specimen, including a mathematic formula utilized to arrive at the amount of cocaine metabolite found in the specimen.

    Dr. Hall re-calculated the sample himself and discovered a mathematical mistake, which corrected the amount of nanograms per milliliter to 59.8.

14. Dr. Hall testified that samples come to TTS from Mount Sinai with a bar code sticker on the first page of the drug

    screen form. When he has completed that form, the original form with the bar code is returned to Mount Sinai.

15. The lab reference number on the Specimen Collection Checklist & Chain of Custody form is as the same bar code number.

16. Ms. Troupe denies ever using cocaine.

    
    

17. By Memorandum, dated September 27, 2004, Ms. Troupe responds to her Disciplinary Action Report by indicating, among other things, that she "did not intentionally violate any Department Rules or Regulations."

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

19. CJSTC has the burden of proof to show by clear and convincing evidence that Ms. Troupe committed the offenses in the Administrative Complaint. Department of Banking and

    Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Section 943.13, Florida Statutes (2004), provides the minimum qualifications for officers, which includes that an officer shall "[h]ave good moral character as determined by a

    background investigation under procedures established by the commission.” § 943.13(7), Fla. Stat. (2004).

21. Section 943.1395, Florida Statutes (2004), provides in pertinent part:

    (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 or the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. 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.

       
       

22. Florida Administrative Code Rule 11B-27.0011, entitled "Moral Character," provides in pertinent part:

    (4) For the purposes of the Criminal Justice Standards and Training 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 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    1. Testing positive for controlled substances by a urine . . . 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 . . . .

    
    

23. Florida Administrative Code Rule 11B-27.00225, entitled "Controlled Substance Testing Procedures," provides in pertinent part:

    1. 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. . . .

       
       

    2. The employing agency shall verify the following requirements for the collection and analysis of urine samples:

       1. The procedures for collection sites and specimen collection complies with the requirements of Rule 59A-24.005, F.A.C.

          
          

          * * *

          
          

          (c) The procedures for analyzing and reporting the urine sample were consistent with Rule 59A-24.006, F.A.C.

          
          

24. The expert for CJSTC testified that Miami-Dade County Corrections failed to change its protocol of collecting urine samples to comply with Florida Administrative Code Rule 59A-24 for the collection of urine samples. Compliance with Florida Administrative Code Rule 59A-24, adopted by the Agency for

    Health Care Administration, is required by Section 112.0455, Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.00225, adopted by the Florida Department of Law Enforcement.

25. At the time that Ms. Troupe's urine sample was taken, the protocol of collecting urine samples failed to comply with Florida Administrative Code Rule 59A-24. The failure to comply with the required provisions by Miami-Dade County Corrections cannot be ignored. See March v. Florida Department of Business Regulation, Division of Pari-Mutuel Wagering, 629 So. 2d 290,

291 (Fla. 3d DCA 1993)("The adherence to rules and statutes by the very agency charged with their enforcement is especially necessary if the public and the parties regulated are to maintain respect and confidence in the decisions rendered by the agency. . . to ignore such rules while they remain in force is to invite disrespect and will ultimately result in a breakdown of the system.") The failure to follow the required collection procedures voids the test results.

RECOMMENDATION

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

RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Vanessa C. Troupe.

DONE AND ENTERED this 6th day of July, 2006, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 6th day of July, 2006.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Bonita Jones-Peabody, Esquire

11501 Northwest Second Avenue, Suite 105 Miami Shores, Florida 33168

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida 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: 05-001169PL

Orders for Case No: 05-001169PL