STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 16, 2008, in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Jaime Roberto, Esquire

16877 East Colonial Drive Orlando, Florida 32820

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On March 18, 2008, Petitioner, Criminal Justice Standards and Training Commission (Commission), filed an Administrative Complaint alleging that Respondent, Vivian Valderrama

(Ms. Valderrama), violated Subsections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), by testing "positive for a controlled substance, Cocaine, by a urine test which reflected a positive reading consistent with and indicative of the ingestion of a controlled substance listed in Chapter 893 F.S." Ms. Valderrama requested an administrative hearing, and the case was received from the Commission by the Division of Administrative Hearings on July 21, 2008.

The final hearing was originally scheduled for

September 24, 2008. On September 8, 2008, the Commission made an ore tenus motion for a continuance. The motion was granted, and the final hearing was rescheduled for October 16, 2008.

On July 22, 2008, the Commission served Ms. Valderrama with Petitioner's First Set of Request for Admissions.

Ms. Valderrama failed to respond to the request for admissions, and an Order was entered on September 9, 2008, deeming the request for admissions to be admitted.

At the final hearing, the Commission called Seth Howard, D.O., as its witness. Petitioner's Exhibit 1 was admitted in

evidence. Ms. Valderrama testified in her own behalf and called Ivonne Schelmety as her witness. Respondent's Exhibit A was admitted in evidence.

The Transcript was filed on November 14, 2008. At the final hearing, the parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. Petitioner filed its Proposed Recommended Order on November 24, 2008. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. Ms. Valderrama was certified as a law enforcement officer in the State of Florida by the Commission on

   September 29, 2004, and was issued Law Enforcement Certificate No. 243605.

2. From September 27, 2004, to November 9, 2007,

   
   

   Ms. Valderrama was employed by the Osceola County Sheriff's Office.

3. On or about October 17, 2007, at approximately 1:00 p.m., Ms. Valderrama reported to the Osceola County

   Sheriff's Office Administration Building for random drug testing pursuant to the terms of her employment and provided a urine sample under controlled conditions. A lab technician was the only other person in the restroom with Ms. Valderrama during the collection process.

4. Ms. Valderrama provided the specimen by urinating in a sterile, previously unused specimen cup, which she subsequently provided to a lab technician who immediately sealed the sample. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered, or adulterated since the initial collection of the urine sample and had remained sealed and maintained in the chain of custody until unsealed by a qualified laboratory personnel at Total Compliance Network, a licensed drug testing laboratory contracted by Florida Hospital Centra Care to conduct random employee drug screens for the Osceola County Sheriff's Office. The laboratory analysis of

   Ms. Valderrama's urine specimen was found by qualified Quest Diagnostic's laboratory personnel and a Total Compliance Network medical review officer to be positive for Cocaine metabolites in a concentration of 2046 nanograms per milliliter.

5. The minimum level of detection for Cocaine is 150 nanograms per milliliter.

6. On October 27, 2007, Ms. Valderrama discussed her test results with Dr. Seth Portnoy, the licensed medical review officer for Total Compliance Network. Ms. Valderrama could not provide Dr. Portnoy with any medical reason for the positive test result and did not challenge the positive test results.

7. The procedures and methods employed in the handling and analysis of Ms. Valderrama's urine specimen provided reliable

   safeguards against contamination, a reliable chain-of-custody, and produced, through gas chromatography/mass spectrometry, a reliable, scientifically-accepted measure of the concentration of Cocaine metabolite in the body. The laboratory standards and practices observed in conjunction with the collection, preservation, shipment, handling and analysis of

   Ms. Valderrama's urine specimen, for the purpose of testing for drugs, were in conformance with the applicable provisions of Florida Administrative Code Chapter 59A-24 and consistent with the requirements for reliability and integrity of the testing process pursuant to Florida Administrative Code Rule

   11B-27.00225.

   
   

8. Cocaine is rapidly metabolized by the body and can be usually detected for two to three days after ingestion. Because the minimum detection level for Cocaine is 150 nanograms per milliliter and Ms. Valderrama's test results showed a level of 2046 nanograms per milliliter, it was Dr. Portnoy's expert opinion that the tests results were indicative of ingestion of Cocaine. Dr. Portnoy's opinion is credited.

9. Ms. Valderrama had drunk some herbal tea prior to giving her urine sample. She feels that the ingestion of the herbal tea could have resulted in the positive test for Cocaine. There was no expert testimony to establish that the ingestion of the herbal tea would result in the positive drug test.

   Additionally, based on Dr. Portnoy's credible expert opinion, the metabolite detected in Ms. Valderama's urine could only result from Cocaine.

10. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

12. The Commission has the burden of establishing the allegations in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). Clear and convincing evidence has been described by the courts as follows:

    [C]lear and convincing evidence requires that 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 witness 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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

13. The Commission has alleged that Ms. Valderrama violated Subsections 943.1395(7) and 943.13(7), Florida

    Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b) by testing positive for Cocaine consistent with and indicative of the ingestion of a controlled substance listed in

    Chapter 893, Florida Statutes.

    
    

14. Subsection 943.1395(7), Florida Statutes, provides:

    
    

    (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:

    
    

    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.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

15. Subsection 943.13(7), Florida Statutes, provides that law enforcement officers shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

16. Florida Administrative Rule 11B-27.0011(4)(d), provides:

    (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 Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (d) 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., 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.

    
    

17. Florida Administrative Code Rule 11B-27.00225, provides that an analysis of a urine sample for the presence of controlled substances or metabolites shall be consistent with the procedures for drug testing set forth in Florida Administrative Code Rule Chapter 59A-24. Florida Administrative Code Rule 59A-24.006(4)(f)1., requires that drug testing laboratories shall report a drug test result of 150 nanograms per milliliter of benzoylecgonine as a positive test result for

    the presence of Cocaine. Dr. Portnoy's credible testimony was that Ms. Valderrama's test results of 2046 nanograms per milliliter for the metabolite for Cocaine is indicative of ingestion of Cocaine.

18. Subsection 893.03(2)(a)4., Florida Statutes, lists Cocaine as a Schedule II controlled substance.

19. Ms. Valderrama has failed to maintain good moral character as set forth in Florida Administrative Code Rule

    11B-27.0011(4)(d). The Commission has established by clear and convincing evidence that Ms. Valderamma tested positive for Cocaine, and the test results were consistent with and indicative of the ingestion of a controlled substance pursuant to Chapter 893, Florida Statutes. Ms. Valderrama did not establish that the ingestion of the Cocaine was lawful.

20. The Commission has established by clear and convincing evidence that Ms. Valderrama has violated Subsections 943.13(7) and 943.1395(7), and Florida Administrative Code Rule

    11B-27.0011(4)(d).

    
    

21. Florida Administrative Code Rule 11B-27.005 provides the range of penalties for disciplinary actions, and Florida Administrative Code Rule 11B-27.005(5) provides:

(d) Notwithstanding subsection (4) of this rule section, for the unlawful use by a certified officer of any controlled substances specified in Section 893.13, F.S., or Rule 11B-27.00225, F.A.C., pursuant

to paragraph 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose a penalty ranging from prospective suspension to revocation.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Vivian Valderrama violated Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking her certification.

DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2007 version.

COPIES FURNISHED:

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

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jaime Roberto, Esquire 16877 East Colonial Drive Orlando, Florida 32820

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: 08-003529PL

Orders for Case No: 08-003529PL