FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Case No. 18-2844PL
DENNIS E. RYAN,
Respondent.
Administrative Law Judge F. Scott Boyd, of the Division of Administrative Hearings (DOAH), conducted the final hearing in this case on August 10, 2018, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.
For Respondent: Dennis E. Ryan, pro se
The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015),1/ and Florida Administrative
imposed.
On December 19, 2016, the Criminal Justice Standards and Training Commission (Petitioner or Commission) filed an Administrative Complaint against Officer Dennis E. Ryan (Respondent or Officer Ryan), alleging that Officer Ryan lacked good moral character in that he tested positive for methadone,2/ a controlled substance under chapter 893, Florida Statutes.
Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On June 4, 2018, the matter was referred to DOAH for assignment of an administrative law judge.
The hearing was scheduled for August 10, 2018. At hearing, Respondent was deemed by operation of Florida Rule of Civil Procedure 1.370 to have admitted the Requests for Admissions served upon him during discovery, but his motion to withdraw certain of these admissions that he denied at hearing was granted in the interest of deciding the case on its merits, no prejudice to Petitioner being found. The other admissions were accepted and have been incorporated into the facts found below.
Petitioner presented the telephone testimony of Dr. Seth Portnoy, medical review officer (MRO) with Total Compliance Network (TCN) in Parkland, Florida; Captain J.R. Torres of the Key West Police
Department; Nurse Janice Reid, a licensed practical nurse in Key West; and Quest Diagnostics Laboratory Director Brian Brunelli of Tucker, Georgia. Petitioner offered eight Exhibits, P-2 through P-9, which were admitted without objection. Respondent presented no testimony, but offered five exhibits, R-1 through R-4 and R-6. Official Recognition was granted for provisions of the Code of Federal Regulations related to drug testing procedures.
The Transcript was filed with DOAH on September 18, 2018. Both parties timely filed proposed recommended orders that were considered in preparing this Recommended Order.
The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines.
Officer Ryan was certified as a law enforcement officer in the State of Florida by the Commission on September 11, 2012, and issued Law Enforcement Certification number 305053.
Officer Ryan was employed as a law enforcement officer by the Key West Police Department from July 11, 2012, until July 29, 2016. Officer Ryan was assigned as a school resource officer at the Horace O'Bryant Middle School in Key West.
On April 7, 2016, Officer Ryan went with a group of coaches and parents taking students to a Police Athletic League (PAL) basketball tournament being held in Jacksonville, Florida.
Captain Torres is the operations bureau commander at the Key West Police Department and has been employed in various capacities as a law enforcement officer for 23 years. Shortly after the trip to Jacksonville, he received reports from personnel at Horace O'Bryant Middle School that on the tournament trip Officer Ryan got lost while he was driving; left some of the students at the tournament; made inappropriate statements in front of the students; and, at times, drove his vehicle at 95 miles per hour.
Captain Torres met with Officer Ryan on the afternoon of April 11, 2016. He observed that Officer Ryan was speaking rapidly, was agitated and fidgety, and had difficulty understanding questions he was asked, seemingly confused.
Captain Torres had observed Officer Ryan on other occasions but had never seen these behaviors before and knew that they were out of character for Officer Ryan.
Based upon the reports of Respondent's abnormal conduct and erratic behavior on the tournament trip and Captain Torres' direct observation of Respondent's symptoms and behavior on the afternoon of April 11, 2016, Captain Torres reasonably concluded that something was "not right" and that Officer Ryan might be
under the influence of some controlled substance. He immediately sent Officer Ryan to Dr. Reid Family Practice for a reasonable suspicion drug test to be conducted.
Ms. Janice Reid is a licensed practical nurse, who on April 11, 2016, was employed as a nurse and office manager at the Key West office of Dr. Reid Family Practice. As part of the toxicology test, Officer Ryan gave a specimen of his urine for chemical analysis for the presence of controlled substances. Officer Ryan gave the specimen by urinating in a sterile, previously unused specimen cup provided to him by Ms. Reid. Ms. Reid received the specimen at approximately 4:25 p.m., capped and sealed the specimen container, and assigned the specimen ID# 24126838 01440196 to uniquely identify the sample and coordinate it with that number on the chain of custody form, which also contained Officer Ryan's social security number. The specimen container was picked up later that same day by Quest Diagnostics courier.
Specimen ID# 24126838 01440196 was received by the Quest Diagnostics laboratory in Tucker, Georgia, and assigned accession number 003746W. The initial test was performed on an Olympus test instrument by enzyme immunoassay, and the specimen screened positive for the presence of methadone. The confirmatory laboratory analysis of Officer Ryan's urine specimen was subsequently found by qualified Quest Diagnostics laboratory
personnel to be positive for the presence of methadone using liquid chromatography/mass spectrometry/mass spectrometry testing. As Mr. Brunelli described, Quest Diagnostics maintained a secure chain of custody, including the preparation of chain of custody logs, for the specimen at each step in the testing process. The reasonable suspicion drug testiing was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes.
Methadone is absorbed into the body, and it is metabolized through the liver. The by-products are detectable in urine. As Dr. Portnoy, the MRO with TCN, a third-party administrator, later testified, no other substance will indicate the presence of methadone; that is, there are no substances that will cause a "false positive" result.
Quest Diagnostics sent an electronic report of the test results to Dr. Portnoy at TCN. Dr. Portnoy contacted Officer Ryan, as is customarily done when testing has revealed the presence of controlled substances. Dr. Portnoy talked to Officer Ryan about the test results. Officer Ryan relayed that he was on doctor's prescriptions for amphetamines and benzodiazepines, but had no medical justification for methadone. Dr. Portnoy was informed later by the City of Key West that Officer Ryan wanted additional testing of a "B" sample by another laboratory.
In response to Officer Ryan's request, as soon as Officer Ryan's check cleared on June 6, 2016, TCN requested that
Quest Diagnostics send specimen ID# 24126838 01440196 to Labcorp, a testing laboratory in North Carolina, for reconfirmation testing. The "B" sample was shipped by FedEx on June 7, 2016, and arrived at Labcorp on June 8, 2016.
Dr. Portnoy testified that on June 21, 2016, Labcorp reconfirmed the presence of methadone in the specimen. When TCN received those results from Labcorp, they were recorded into TCN's records under Officer Ryan's social security number and assigned a new specimen ID# based upon that social security number in order to distinguish this reconfirmation test information from that of the earlier confirmation testing by Quest Diagnostic. TCN reported Labcorp's reconfirmation to the City of Key West, using the new specimen ID# and Officer Ryan's social security number on June 22, 2016.
Officer Ryan's contention that the different specimen ID# that appears on TCN's form transmitting the test results to the City of Key West indicates a break in the chain of custody of the "B" sample is rejected. There is no suggestion that the "B" sample tested by Labcorp was not properly maintained and controlled throughout the reconfirmation testing process. The "B" sample itself was not sent back to TCN. It was only after Labcorp returned the reconfirmation results to TCN that TCN assigned a new, distinct specimen ID# to distinguish those results of the reconfirmation testing conducted by Labcorp from
the results of the confirmation testing earlier conducted by Quest Diagnostics. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced for both the confirmation testing by Quest Diagnostics and the reconfirmation testing by Labcorp.
In his sworn statement to the internal affairs investigator, Officer Ryan stated that he has never been prescribed methadone. He went on to say that he had no explanation as to why the drug testing revealed the presence of methadone in his body. Officer Ryan also told the internal affairs investigator, just as he had the MRO, that he was taking Adderall and Serax by doctor's prescription. He said that on the tournament trip, he took these medicines as usual as prescribed and that they did not affect his conduct or behaviors at all.
Officer Ryan failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced methadone into his body, as evidenced by a drug test in accordance with sections 112.0455 and 440.102.
No evidence of any prior disciplinary history was introduced for Officer Ryan.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes (2018).
Petitioner is responsible for the certification and regulation of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes (2018).
Petitioner seeks to take disciplinary action against Respondent's certification as a law enforcement officer. Disciplinary action constitutes a penal proceeding, and Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't
of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been said to require:
[T]hat 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 Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Section 943.13 establishes the minimum qualifications for certification of law enforcement officers by the State of Florida. Among those qualifications is the requirement that a law enforcement officer possess good moral character, as
determined by a background investigation under procedures established by the Commission. § 943.13(7), Fla. Stat.
Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard.
Rule 11B-27.0011 is entitled "Moral Character." The relevant portion of the rule reads:
(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:
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(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.
Section 893.03 lists methadone as a controlled substance:
893.03 Standards and schedules.— The substances enumerated in this section are controlled by this chapter. The controlled substances listed or to be listed in Schedules I, II, III, IV, and V are included by whatever official, common, usual, chemical, or trade name designated.
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(2) SCHEDULE II.— A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence. The following substances are controlled in Schedule II:
* * *
(b) Unless specifically excepted or unless listed in another schedule, any of the following substances, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:
* * *
14. Methadone.
The drug tests in this case were conducted in accordance with section 112.0455, Florida Statutes. Based upon reports of Respondent's abnormal conduct and erratic behavior while at work and Captain Torres' direct observation of Respondent's symptoms and behavior on April 11, 2016, the Captain was justified in sending Respondent for a reasonable suspicion drug test. Mitchell v. Dep't of Corr., 675 So. 2d 162, 164
(Fla. 4th DCA 1996)(facts and inferences sufficient to justify reasonable suspicion drug testing may be based upon physical symptoms or manifestations of being under drug influence). The required showing for reasonable suspicion, which is "something less than probable cause, but more than an inchoate and
unparticularized suspicion or hunch," was met. See Rouse v.
State, 643 So. 2d 696, 697 (Fla. 1st DCA 1994).
Respondent asserts that the test results should not be considered because the chain of custody on the "B" sample reconfirmation test conducted by Labcorp was flawed. He points to the fact that a different specimen ID# appears on the form used by TCN to transmit the test results to the City of Key West.
"Relevant physical evidence is admissible unless there is an indication of probable tampering." Peek v. State, 395 So. 2d 492, 495 (Fla. 1980). In order to demonstrate probable tampering, the party attempting to bar the evidence must show that there was a probability that the evidence was tampered with— the mere possibility is insufficient. Murray v. State
(Murray I), 838 So. 2d 1073, 1082-83 (Fla. 2002). Once the party
moving to bar the evidence has met its burden, the burden shifts to the nonmoving party to establish a proper chain of custody or submit other evidence that tampering did not occur. No evidence indicates probable tampering with any of the urine samples involved here.
In any event, it was only after the "B" sample results were returned from Labcorp to TCN that a new specimen ID# was assigned by TCN for the purpose of accurately distinguishing the two sample results now being documented in TCN's system. Thus, the fact that a new number was assigned did not undermine, but in
fact actually bolstered, the chain of custody, ensuring that the two separate test results would not be confused. Sufficient identifying information accompanied the specimen samples at each stage to ensure that the custody of both samples remained unbroken. Armstrong v. State, 73 So. 3d 155, 171 (Fla. 2011)
(sufficient showing of the chain of custody is made where the object has been kept in proper custody since the time it was first under possession and control).
The tests, conducted in accordance with section 112.0455, revealed the presence of methadone, and so clearly evidenced that a Schedule II controlled substance had been injected, ingested, inhaled, or otherwise introduced into Respondent's body.
The next issue to be considered is whether the introduction of the methadone was proven to be unlawful.3/ In the absence of a direct admission or testimony, the unlawfulness of the introduction of the controlled substance must be proven by circumstantial evidence. Baugh v. State, 961 So. 2d 198, 203 (Fla. 2007)(when witness testifies of his own knowledge as to the facts, that is direct evidence; circumstantial evidence is proof of facts and circumstances from which the trier-of-fact may infer that the ultimate facts in dispute existed or did not exist, citing Davis v. State, 90 So. 2d 629, 631 (Fla. 1956)).
When a criminal case is based wholly on circumstantial evidence, the evidence must be sufficient to establish each element of the offense and must exclude any reasonable hypothesis of innocence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
Not every introduction of methadone into a body is unlawful. Mr. Brunelli explained that methadone can be lawfully prescribed for pain or can be prescribed in methadone replacement therapy. The laboratory test would detect the presence of methadone in the body in either instance.
However, Respondent himself admitted that he had never been prescribed methadone. In his sworn statement to the internal affairs investigator, Respondent specifically denied ever having had methadone prescribed for him or ever taking methadone. He stated further that he had no explanation for the presence of methadone in his body revealed by the drug tests. It is clear that Respondent was never lawfully prescribed methadone, and that is not a reasonable hypothesis of innocence consistent with the test results.
In his sworn statement to the internal affairs investigator, Respondent did indicate that he was taking Adderall and Serax by doctor's prescription. He also indicated in his deposition that he informed Dr. Portnoy of these lawfully introduced drugs. But Dr. Portnoy credibly testified at hearing, and it is found, that, in fact, no other substance creates a
"false positive" for methadone. Thus, no lawfully introduced drug provides a reasonable hypothesis of innocence consistent with the test results.
In the absence of any reasonable hypothesis of innocence explaining Respondent's behaviors and the positive test results, this circumstantial evidence is sufficient to conclude that Respondent unlawfully introduced the methadone into his body. The evidence is sufficient to establish a firm conviction, without hesitancy, as to the truth of the allegation.
Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced methadone into his body as evidenced by a drug test in accordance with sections 112.0455 and 440.102.
Section 943.1395(7) prescribes the penalties that may be imposed by the Commission in a case of this nature:
(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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Section 943.1395(8) goes on to provide that the Commission shall set forth disciplinary guidelines, as well as aggravating and mitigating circumstances. It provides in relevant part:
(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.
Consistent with the statute, the Commission has established disciplinary guidelines in rule 11B-27.005(5), which provides, in pertinent part:
(5) 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:
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(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.
The Commission has established aggravating and mitigating circumstances in rule 11B-27.005(6):
The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:
Aggravating circumstances:
Whether the certified officer used official authority to facilitate the misconduct.
Whether the misconduct was committed while the certified officer was performing other duties.
The number of violations found by the Commission.
The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.
The severity of the misconduct.
The danger to the public.
The actual damage, physical or otherwise, caused by the misconduct.
The lack of deterrent effect of the penalty imposed by the employing agency.
The pecuniary benefit or self-gain to the officer realized by the misconduct.
Whether the misconduct was motivated by unlawful discrimination.
Any behavior constituting "domestic violence" defined by Section 741.28(2), F.S.
Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.
The certified officer has not filed any answer to the Administrative Complaint or otherwise responded to the allegations of misconduct alleged by the Commission.
Mitigating circumstances:
The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.
The recommendations of character or employment references.
The lack of severity of the misconduct.
The length of time the officer has been certified by the Commission.
Any effort of rehabilitation by the certified officer.
The effect of disciplinary or remedial action taken by the employing agency or recommendations of the employing agency administrator.
The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.
Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.
While Respondent's failure to maintain good moral character took place while he was on duty and potentially might have caused extremely great harm to students, there was no actual damage. No prior discipline has been imposed. None of the circumstances warrant deviation from the wide discretion already vested in the Commission within the penalty guidelines.
Petitioner seeks permanent revocation of Respondent's certification. The conduct alleged and proven is serious; the public has a right to expect that those who enforce the laws will
themselves obey it. City of Palm Bay v. Bauman, 475 So. 2d 1322
(Fla. 5th DCA 1989).
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
The Florida Criminal Justice Standards and Training Commission enter a final order finding Dennis E. Ryan in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking his certification as a law enforcement officer.
DONE AND ENTERED this 17th day of October, 2018, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2018.
1/ References to statutes and rules are to versions in effect in April of 2016, the time of the alleged conduct and drug testing, except as otherwise indicated.
2/ At hearing, Petitioner withdrew additional allegations that Officer Ryan had tested positive for amphetamines and benzodiazepines, also controlled substances, representing that these test results might be explained by drugs that had been lawfully prescribed for Respondent.
3/ The Commission has held that because an administrative agency is prohibited from creating an evidentiary presumption and because any ambiguity in a rule must be resolved in favor of a respondent, that a positive test under the rule is evidence of only the fact that a controlled subtance was introduced into the body, not whether that introduction was "unlawful." See the citations and detailed discussion of these points in Criminal Justice Standards and Training Commission v. Gerdon, Case No. 12- 3043PL (Fla. DOAH Dec. 28, 2012), rejected as to penalty, Case No. 32150 (Fla. CJSTC Feb. 26, 2013).
Christopher David Bufano, Esquire Florida Department of Law Enforcement Post Office Box 1489
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.
