STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

CURTIS R. BRUNGARDT,

Respondent.

/

Case No. 13-4135PL

RECOMMENDED ORDER

A hearing was held pursuant to notice on December 16, 2013, by Barbara J. Staros, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Curtis R. Brungardt, pro se

(Address of record) STATEMENT OF THE ISSUE

Whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On or about August 7, 2013, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint against Respondent.

The Administrative Complaint charged Respondent with violations of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d) by failing to maintain the qualifications established in

section 943.13(7), which requires that a correctional officer in the State of Florida be of good moral character.

Respondent disputed the allegations in the Administrative Complaint and timely filed a request for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about October 21, 2013. The case was initially assigned to Judge Lisa Nelson. A formal hearing was set for December 16, 2013. The case was transferred to the undersigned, and the hearing took place as scheduled.

At the commencement of the hearing, the parties stipulated that Respondent was not challenging the results of the drug test. Rather, Respondent was asserting that the test results were not from his urine sample.

Petitioner presented the testimony of two witnesses: Ajai Saini and Tairra Wolfe. Petitioner's Exhibits numbered 1

through 5 were admitted into evidence. Respondent testified on his own behalf but did not offer any exhibits.

A one-volume Transcript was filed on January 3, 2014.

Petitioner filed a Proposed Recommended Order which was considered in the preparation of this Recommended Order. Respondent did not file any post-hearing submission. All references to the Florida Statutes are to the 2013 codification unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate No. 301820.

2. Respondent has been employed by the Jefferson County Correctional Institution for the past year and a half. During that time, he has submitted to periodic random urinalysis testing as part of his employment.

3. While at work on February 21, 2013, Respondent was informed that he had been selected for a random drug test. He and several other correctional officers were transported by van to LabCorp, located on Blountstown Highway in Tallahassee, to provide a urine sample.

4. Tairra Wolfe is a certified phlebotomist who is employed by LabCorp at the Blountstown Highway location. In

   
   

   addition to being a phlebotomist, she performs DNA and drug testing, as well as processing.

5. Ms. Wolfe described the process that is used at LabCorp when a person comes in for drug testing. First, the person being tested (the donor) brings in a consent form from his or her employer, and signs the consent form.

6. The donor is then taken to the back, where the donor is given a cup for the urine specimen and is then instructed to go into the bathroom to provide a urine specimen in the cup. The tester is not in the bathroom when the specimen is given. After coming out of the bathroom, the donor hands the cup containing the urine specimen to Ms. Wolfe. She then tells the donor to use hand sanitizer, and to wait there. In the presence of the donor, she pours the urine specimen into another container, seals that container, and puts labels over the container.

7. The container is sealed in front of the donor with tape that prevents the specimen from being opened without breaking the seal. Ms. Wolfe then labels the specimen and has the donor initial and date it in front of her. The seal contains a bar code. Respondent’s specimen was assigned a specimen ID of 0582899940.

8. Ms. Wolfe then places the sealed container in a bag, which is also sealed and labeled with the specimen number and bar code, and which is also tamper resistant. The bag

   
   

   containing the specimen is placed in a large box in the processing room. This box is sealed at the end of each day and is picked up by a LabCorp courier.

9. Lastly, the donor signs the chain of custody form in the section entitled “Completed by Donor.” Ms. Wolfe also signs the chain of custody form in the section entitled “Completed by Collector.”

10. The section of the chain of custody form entitled “Completed by Donor” states in part:

    I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen is correct.

    
    

11. The chain of custody form for the urine specimen which is at issue in this proceeding is signed by both Ms. Wolfe and Respondent.

12. Respondent’s specimen was transported to a LabCorp forensic drug testing laboratory in Southhaven, Mississippi.

13. Ajai Saini is the lab manager at the Southhaven laboratory. He is responsible for all of the administrative and technical decisions to ensure the quality and timeliness of the laboratory results. He has extensive professional experience in the field of toxicology.

    
    

14. The specimen was assigned a unique specimen ID or accession number used to identify that specimen for all processes within the laboratory. The specimen ID labeled as Respondent’s was assigned a specimen ID number of 0582899940. When received by the Southhaven lab, the primary specimen bottle seal was intact. The lab accessioned the bottle into their storage and aliquoted a sample of that bottle for testing. The urine sample was analyzed by LabCorp and a report was generated.

15. The specimen was screened and confirmed positive for both marijuana and cocaine. This result was reviewed and certified. 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.

16. In examining the test results for the sample identified as Respondent’s, Mr. Saini concluded that it tested positive for cocaine and marijuana metabolite.

17. Respondent does not dispute the test results but rather asserts that the samples were mixed up in the Tallahassee LabCorp facility.

18. Respondent testified at hearing that he had been tested several times before but that his experience on

    February 21, 2013, was different from previous testing days. In

    
    

    particular, there were many more correctional officers being tested that day than on previous occasions, and the process varied from those previous occasions. Typically, the officers signed in at the front counter, and did not sign anything else until later. Respondent asserts that because of the greater number of officers being tested, the officers were given the labels to sign at the front counter before going back to be tested. “I didn’t sign my label because I have already previously signed it out front.” Respondent believes that the urine which tested positive is not his.

19. On cross examination, Ms. Wolfe continued to maintain that the process she described in her testimony is the process she uses every day. She did not recall any variation in this process on any day, and stressed the importance of the donor watching her pour the sample and seal it, and of her watching the donor sign the label and chain of custody form in front of her.

20. While the undersigned found Respondent’s testimony to be credible, it alone was not enough to overcome the clear and convincing evidence presented by Petitioner. That is, that the sample identified as Respondent’s tested positive for illegal substances.

21. Respondent asserts that all previous random drug tests he has taken have been negative, and that he has a good

    
    

    employment record. No evidence was presented to indicate

    
    

    otherwise.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

23. The Commission has jurisdiction over the certification of correctional officers pursuant to chapter 943.

24. This disciplinary action by the Department is a penal proceeding in which it seeks to discipline Respondent’s certification as a corrections officer. Thus, the Department has the burden of proving by clear and convincing evidence the allegations in the Administrative Complaint. See Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

25. The Administrative Complaint contains the following factual allegations:

    2. (a) On or about February 21, 2013, the Respondent, Curtis R. Brungardt, did then test positive for a controlled substance, marijuana, by a blood and/or urine test which reflected a positive reading consistent with an indicative of the ingestion of a controlled substance, cocaine, listed in Chapter 893 F.S.

    (b) On or about February 21, 2013, the Respondent, Curtis R. Brungardt, did then test positive for a controlled substance, marijuana, by a blood and/or urine test which reflected a positive reading

    
    

    consistent with an indicative of the ingestion of a controlled substance listed in Chapter 893 F.S.

    
    

26. The Administrative Complaint charged Respondent with violating section 943.1395(7) and Florida Administrative Code Rule 11B-27.004(4). Section 943.1395(7) reads, in pertinent

    part:

    
    

    1. 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 of 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. . . .

          
          

       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).

       
       

27. Florida Administrative Code Rule 11B-27.0011(4) defines good moral character. At the time of the alleged offense, the rule provided as follows:

    11B-27.0011 Moral Character.

    
    

    * * *

    
    

    1. 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.

       
       

28. The Commission has established disciplinary guidelines for the imposition of penalties for failure to maintain good moral character. Florida Administrative Code Rule 11B-27.005 reads in pertinent part:

    11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and

    Mitigating Circumstances.

    
    

    * * *

    
    

    1. When the Commission finds that a certified officer has committed an act that 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:

    
    

    * * *

    
    

    (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 impose a penalty ranging from prospective suspension to revocation.

    
    

29. Petitioner has met its burden to support the charge in the Administrative Complaint that Respondent’s urine testing positive constitutes a violation of section 943.1395(7) and, therefore, Florida Administrative Code Rule 11B-27.0011(4)(d).

30. Petitioner recommends revocation of Respondent's certificate. 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.

RECOMMENDATION

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

RECOMMENDED:

That the Criminal Justice Standards Commission enter a final order finding Respondent in violation of

section 943.1395(7), as defined in Florida Administrative Code Rule 11B-27.0011(4)(d). It is further recommended that Respondent’s certification be suspended for a period of 120 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 27th day of January, 2014, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 27th day of January, 2014.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Curtis R. Brungardt (Address of record)

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: 13-004135PL

Orders for Case No: 13-004135PL