STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

ANTHONY W. HATCHER, )

)

Respondent. )

Case No. 12-2250PL

)

RECOMMENDED ORDER

On August 31, 2012, a duly-noticed hearing was conducted by video teleconferencing with sites in Tallahassee and Pensacola, Florida, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Anthony W. Hatcher, pro se

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative

Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On May 9, 2012, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (“Petitioner” or “the Commission”), filed an Administrative Complaint against Respondent, Anthony Hatcher (“Respondent” or “Hatcher”), charging him with violating section 943.1395(7) and rule 11B- 27.0011(4)(d), by failing to maintain the qualifications established in section 943.13(7). The charges are based on the factual allegation that on or about December 9, 2011, Respondent tested positive for marijuana in a random drug test.

Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1). On June 25, 2012, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

On July 5, 2012, a Notice of Hearing by Video Teleconference was issued, scheduling the hearing for August 31, 2012. The hearing proceeded as scheduled. Petitioner presented the testimony of Juston Day, Ajai Saini and Neil J. Dash, M.D. Petitioner’s Exhibits 1-5 were admitted into evidence.

Respondent testified on his own behalf and presented the testimony of James Holland and Linda Jernigan, and Respondent’s

Exhibit 1 was admitted into evidence. The one-volume Transcript was filed with the Division on September 17, 2012, and both parties timely submitted Proposed Recommended Orders that have been carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer.

2. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing.

3. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing.

4. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp.

5. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form.

6. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen

   
   

   number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day.

7. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled.

   Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier.

8. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent.

9. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine.

   
   

10. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry.

11. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter.

12. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter.

13. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances.

14. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service.

    A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such

    
    

    substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections.

15. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test.

16. However, the Chain of Custody Form that Respondent signed states in part:

    I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents.

    
    

17. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not

    credited.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this

    
    

    action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).

19. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent's certification as a corrections officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. As stated by the Supreme Court of Florida,

    
    

    Clear 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

    
    

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

    
    

21. The Administrative Complaint contains the following factual allegations:

    1. On or about December 9, 2011, the Respondent, Anthony W. Hatcher, did then test positive for a controlled substance, Marijuana, by blood and/or urine test which reflected a positive reading consistent with

       
       

       the indicative of the ingestion of a controlled substance listed in Chapter 893, F.S.

       
       

    2. The actions of the Respondent did violate the provisions of section 943.1395(7), Florida Statutes, and Rule 11B- 27.0011(4)(d), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in section 943.13(7), Florida Statutes, which require that a Correctional Officer in the State of Florida have good moral character.

       
       

22. Section 943.1395(7) and (8) 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.

    
    

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to

    
    

    administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

    
    

23. The Commission has defined "good moral character" for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided 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 Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (d) A certified officer’s unlawful injection, ingestion, inhalation, or other introduction of any controlled substance, as defined in section 893.03, F.S., into his or her body as evidenced by a drug test in accordance with sections 112.0455, 440.102, or 944.474, F.S.

    
    

24. The drug test taken by Respondent was administered in a manner consistent with sections 112.0455, 440.102, and 944.474, as required.

    
    

25. Petitioner has proven the violation alleged, i.e., that Respondent tested positive for a controlled substance, in this case, marijuana, by clear and convincing evidence. It is not necessary for Petitioner to demonstrate that Respondent engaged in the illicit use of marijuana. It need only demonstrate that he in fact tested positive for marijuana at a level consistent with the ingestion of the drug.

26. The Commission has established disciplinary guidelines for the imposition of penalties for failure to maintain good moral character. At the time of the offense in this case, Florida Administrative Code Rule 11B-27.005(5)(d) provided:

    (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.

    
    

27. The undersigned has carefully considered the Disciplinary Guidelines, as well as the aggravating and mitigating factors specified in rule 11B-27.005. It is noted that the Department did not present any evidence of prior discipline, or any evidence of suspicion that Respondent was using illicit drugs. Based on the totality of the evidence, the

penalty imposed should be at the lower end of the guideline range, but a penalty is required that will both deter other officers from engaging in the illicit use of drugs and allow Respondent to return to employment in law enforcement under

supervision.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c).

DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 18th day of October, 2012.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us

Anthony Wayne Hatcher

Jennifer Cook Pritt, 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: 12-002250PL

Orders for Case No: 12-002250PL