FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Case No. 19-3677PL
TERRI D. ROBERTS,
Respondent.
On September 4, 2019, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division) conducted a duly-noticed hearing in Tallahassee,
Florida.
For Respondent: Terri D. Roberts, pro se
Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida
Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(d); and, if so, the appropriate penalty.
On July 26, 2019, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner or the Commission), filed an Amended Administrative Complaint against Respondent, Terri D. Roberts, charging her with violating sections 943.1395(7) and 943.13(7), and rule 11B- 27.0011(4)(d). The factual basis for the charge is that Respondent, allegedly, on June 28, 2018, tested positive for the controlled substance marijuana cannabis, by a urine test, which reflected a reading consistent with and indicative of the ingestion of that controlled substance listed in chapter 893, Florida Statutes (2018).
Respondent timely filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On
July 11, 2019, Petitioner forwarded the case to the Division for the assignment of an administrative law judge.
On July 22, 2019, this matter was noticed for September 4, 2019, and the case proceeded as scheduled. Petitioner presented the testimony of Dr. Brian Schwimmer, director of medical review services at Doctor’s Review Services (via telephone), and Dr.
Services (via telephone), and the undersigned admitted Petitioner’s Exhibit P1 into evidence with no objection.
Respondent testified on her own behalf, and the undersigned admitted Respondent’s Exhibits R1 through R6 into evidence.
The one-volume Transcript of the hearing was filed with the Division on September 5, 2019. Petitioner timely filed a Proposed Recommended Order on September 16, 2019, which the undersigned has considered in the preparation of this Recommended Order. Respondent did not file a proposed recommended order.
All references are to the 2018 codification of the Florida Statutes, unless otherwise indicated.
Petitioner is an agency of the State of Florida responsible for the certification and the revocation of certification of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes.
Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 332010 to Respondent on July 24, 2003.
As part of her employment agreement with the Florida Department of Corrections (DC), Respondent agreed to submit to random drug testing. See also § 944.474, Fla. Stat. (providing DC with the authority to develop a program for random drug testing of all employees).
On June 22, 2018, DC requested that Respondent submit to a random drug test and she provided a urine sample that same day. Prior to her submission of the urine sample, Respondent provided photo identification to the lab technician to verify her identity.
Respondent did not notify DC of any reason why her urine sample might test positive for a controlled substance.
After submitting her urine sample, Respondent signed a form that stated:
I [the Respondent] 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 bottle is correct.
Respondent does not dispute the testing procedures, chain of custody, qualifications, or accreditation of the laboratory and its employees that analyzed her urine specimen.
Respondent also does not dispute that this was a “drug test” as defined under section 112.0455(5)(j), Florida Statutes. Section 112.0455 is known as “the Drug-Free Workplace Act,” and authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing
laboratories to conduct initial screening and confirmation testing.
Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Instead, it relied on the testimony of Dr. Widerspan, the medical review officer who analyzed Respondent’s drug test, and Dr. Schwimmer, the director of medical review services at Doctor’s Review Services, which employs Dr. Widerspan, to establish those results.
Dr. Schwimmer testified as to the testing and evaluation procedures utilized generally at Doctor’s Review Services. He noted that his office does not conduct the drug test, but rather, a separate laboratory conducts it. Medical review officers within his office review the results of positive tests.
With respect to marijuana, Dr. Schwimmer testified that the laboratory conducts a two-stage testing process. First, the laboratory conducts an immunoassay, or screening test, that he described as a reactive test. If that first test reveals presence of delta-9 tetrahydrocannabinol/marijuana (delta-9 THC) for the marijuana metabolite at or above 15 ng/ml, the laboratory will then conduct a gas spectrometry test, which he described as more detailed and not reactive. If the gas spectrometry test confirms the concentration of delta-9 THC for the marijuana
metabolite at or above 15 ng/ml, Dr. Schwimmer explained that the laboratory then refers the test to Doctor’s Review Services for review by a medical review officer.
Dr. Schwimmer further testified that when a medical review officer receives the results of a test that reflects a concentration of marijuana in excess of 15 ng/ml, the medical review officer speaks with the subject of the test to determine if the subject has a valid medical explanation that the medical review officer can verify.
According to Dr. Schwimmer, the only verifiable valid medical explanation for a positive marijuana test is if a subject presented a prescription for Dronabinol, also known as Marinol, and the subject ingested Dronabinol prior to the drug test. If a subject provides a verifiable, valid medical explanation for a positive marijuana test, a medical review officer may overturn the laboratory’s findings.
Dr. Widerspan is a practicing physician and has been a certified medical review officer since 2015; she testified that she has evaluated over 50 urine specimens as a medical review officer.
Dr. Widerspan was the medical review officer who reviewed the results of Respondent’s drug test. She testified that she saw the results of the marijuana metabolite concentration in Respondent’s drug test, which were transmitted
electronically to her from the testing laboratory, and which she stated reflected a positive marijuana test. Again, Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test.
Dr. Widerspan testified that she contacted Respondent to determine if a valid medical explanation existed to justify the positive result of the drug test, and after that conversation, determined that Respondent did not present a valid medical explanation.
Respondent, an approximately 16-year veteran of DC, testified and presented credible evidence that she suffered from multiple issues related to her back, starting in 2017. As a result, Respondent stated that she took over-the-counter cannabidiol oil (CBD) for back pain around the time of her drug test. Respondent testified that she explored, and ultimately decided to ingest the over-the-counter CBD oil as an alternative to other prescribed pain medication, so that she would not be “woozy” or “goofy” at work, and because, as a correctional officer, she needed to be “aware and alert.”
Petitioner and Respondent both provided evidence that Respondent purchased an over-the-counter CBD oil product from a local pharmacy near the time of the drug test. However, Respondent did not provide evidence that a medical professional
prescribed the use of CBD oil or any marijuana-related products for her back.
Respondent denied ingesting illegal marijuana during her employment with DC, but admitted ingesting over-the-counter CBD oil around the time of her drug test.
Dr. Schwimmer testified that the medical review officers at Doctor’s Review Services will not consider a subject’s claim that he or she ingested CBD oil to overturn a drug test that is positive for marijuana because “it is not verifiable.” He further explained:
If they are taking a product that is sold legally in the State of Florida, we don’t believe that normal usage would be a valid medical explanation because the levels required are well beyond what you would expect to see from that normal usage.
Dr. Schwimmer further testified that “normal” CBD oil should have no more than 0.3% THC, which is very low, and thus should not trigger a positive marijuana test, even if the subject ingests it regularly.
Dr. Widerspan similarly testified:
Because the THC content within a CBD oil product is a trace amount, which is not - - would not be expected to come up as a positive test. It is not expected to develop a concentration strong enough to show up as a confirmed positive test.
Respondent testified that she spoke with Dr. Widerspan after receiving a phone call where Dr. Widerspan indicated that her drug test was positive for marijuana, and Respondent told Dr. Widerspan that she ingested over-the-counter CBD oil. Respondent further provided copies of the bottle of the CBD product, as well as receipts of purchase, to Doctor’s Review Services.
Dr. Widerspan stated that she advised Respondent that Respondent failed to provide her with a valid medical explanation that would permit her to overturn the result because over-the- counter CBD oil is not an acceptable prescribed medication, such as Dronabinol.
It bears repeating that Petitioner did not introduce into evidence the actual result of Respondent’s June 22, 2018, drug test. Instead, Petitioner apparently relies solely on the testimony of Dr. Schwimmer and Dr. Widerspan to establish that Respondent’s June 22, 2018, drug test resulted in a positive test for marijuana, and in turn, that Respondent failed to maintain good moral character. The only exhibit that Petitioner introduced was a receipt from the local pharmacy where Respondent stated she purchased the over-the-counter CBD product.
Respondent introduced into evidence, among other things, a series of letters from current and past co-employees of
DC, that attest to her professionalism, strong work ethic, and leadership abilities at DC, as mitigation.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1).
This is a proceeding to discipline Respondent’s certification as a corrections officer, in which Petitioner is seeking prospective suspension with a term of probation. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Amended 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 “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So.
2d 744, 753 (Fla. 1997). The Florida Supreme Court further enunciated the standard:
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
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 Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA
1991).
The factual allegations in the Amended Administrative Complaint to support the imposition of discipline are that Respondent, on or about June 28, 2018, tested positive for a controlled substance, marijuana cannabis, by a blood and/or urine test, which reflected a positive reading consistent with, and indicative of, ingestion of a controlled substance listed in chapter 893, Florida Statutes.
Based on this factual premise, the Amended Administrative Complaint charges Respondent with violating section 943.1395(7); and rule 11B-27.0011(4)(d), for failure to maintain the qualifications established in section 943.13(7),
which require that a correctional officer in the State of Florida have good moral character.
Section 943.13(7) provides:
On or after October 1, 1984, any person employed as a full-time, part-time, or auxiliary law enforcement officer or correctional officer . . . shall:
* * *
Have a good moral character as determined by a background investigation under procedures established by the commission.
Section 943.1395 provides, in pertinent part:
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.
The Commission has defined the failure to maintain “good moral character,” for purposes of sections 943.13(7) and 943.1395(7), in rule 11B-27.0011(4)(d) as:
(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 section 112.0455, 440.102
or 944.474, F.S.
Florida classifies marijuana/cannabis as a Schedule I controlled substance. § 893.03(1)(c)7., Fla. Stat.
Rule 11B-27.011(4)(d) explicitly states that a certified officer’s failure to maintain good moral character is defined as “[a] certified officer’s unlawful injection, inhalation, or other introduction of any controlled
substance . . . into his or her body as evidenced by a drug test in accordance with section 112.455, 440.102 or 944.474, F.S.” (emphasis added).
Rule 11B-27.011(4)(d)’s clear language states that failure to maintain good moral character must be evidenced by a
drug test in accordance with specific drug testing statutory provisions. In the instant matter, Petitioner failed to introduce into evidence the drug test that it purports demonstrates a positive test for marijuana, and instead relied on the testimony of Dr. Widerspan, who testified that she reviewed the drug test, and Dr. Schwimmer, who explained the drug testing process in detail. Section 112.0455(5)(b), an applicable statutory provision, defines “drug test” as “any chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolite.” The undersigned concludes that Dr. Widerspan’s and Dr. Schwimmer’s testimony, on their own and without introduction of actual evidence of the results of Respondent’s drug test, does not meet rule 11B-27.011(4)(d)’s requirement that the failure to maintain good moral character “must be evidenced by a drug test in accordance with section 112.0455. . . .” The undersigned further concludes that Dr. Widerspan’s and
Dr. Schwimmer’s testimony, alone and without introduction of actual evidence of the results of Respondent’s drug test, does not meet the definition of “drug test” under section 112.0455(5)(b). Thus, the undersigned concludes that Petitioner has failed to establish, by clear and convincing evidence, that Respondent failed to maintain good moral character pursuant to section 943.13(7) and rule 11B-27.0011(4)(d).
Additionally, and based on the conclusion set forth in paragraph 37 above, Petitioner has failed to prove, by clear and convincing evidence, that Respondent’s introduction of a controlled substance was “unlawful,” as also required under
rule 11B-27.011(4)(d).
Based on the undersigned’s conclusion that Petitioner failed to prove, by clear and convincing evidence, that Respondent failed to maintain good moral character, it is not necessary to review, under rule 11B-27.005(6), the considerable mitigating evidence presented by Respondent.
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint against Terri D. Roberts.
DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida.
ROBERT J. TELFER III
Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2019.
Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489
Terri D. Roberts
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.
