Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order concluding that petitioner, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March 1992.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 30, 1989, certified as a law enforcement officer in the State of Florida. He holds Law Enforcement Certificate Number 31895. At all times material to the instant case Respondent was employed as a sergeant by the Miami-Dade County Police Department. During his employment, Respondent was a member of the Miami-Dade County Police Department's Tactical Narcotics Team. As a team member, he came into contact with and handled controlled substances, including cocaine, in discharging his duties. Respondent's employment with the Miami-Dade County Police Department was involuntarily terminated after his urine tested positive for cocaine. The test was part of a regularly scheduled biannual physical examination he was required to undergo by the Miami- Dade County Police Department. The examination was conducted the morning of January 24, 2002, at Mount Sinai Medical Center in Miami Beach, Florida. Respondent gave the urine sample that tested positive for cocaine approximately 8:00 a.m. that morning. Respondent had almost a month's advance written notice of the examination. The written notice he received listed "all the tests" he would be given during the examination. Respondent could have requested that the examination be rescheduled (by "go[ing] through [his] station"), but he did not make such a request. The urine sample that Respondent gave as part of the examination was tested and analyzed by Toxicology Testing Service, Inc. (TTS). TTS received Respondent's urine sample "intact" (in two sealed and labeled containers) the afternoon of January 24, 2002. One of the containers was then unsealed and its contents tested and analyzed. The other container was "kept frozen." TTS's initial screening of the contents of the unsealed container indicated the presumptive presence of benzoylecgonine, a metabolite produced when (and only when) cocaine is ingested and metabolized in the body. TTS then performed confirmatory testing using gas chromotography-mass spectrometry analysis. Gas chromotography-mass spectrometry analysis is an exceptionally reliable and accurate method of confirmatory testing.2 The gas chromotography-mass spectrometry analysis, which was done on February 1, 2002, confirmed the presence of benzoylecgonine in Respondent's urine specimen at the level of 575 nanograms per milliter, a result consistent with, and indicative of, Respondent's having ingested cocaine prior to the collection of his urine specimen. There was no umetabolized "parent cocaine" detected in the specimen.3 Neither did testing reveal the presence of cocaethylene (the metabolite formed in most, but not all, persons when cocaine is ingested together with alcohol) or ethyl ecgonine ester (a metabolite which is a "breakdown" product of cocaethylene). It is undisputed that, in conducting its testing and analysis, TTS followed required testing protocol designed to ensure reliable results. The results of TTS's testing and analysis were reported to the Miami-Dade County Police Department. After receiving these results, the Miami-Dade County Police Department commenced an internal affairs investigation of the matter. Lieutenant Cynthia Machanic was assigned the task of heading up the investigation. As part of the investigation, Lieutenant Machanic asked Respondent to give a sworn statement explaining "how he would [have] come to have a positive drug test." Respondent had not at any time knowingly ingested cocaine. He therefore had to resort to speculation and conjecture to provide the explanation Lieutenant Machanic sought. He did not remember having participated on the Tactical Narcotics Team, or having engaged in any other job- related activity, in which he would have come in contact with cocaine, close in time to his January 24, 2002, biannual examination. The "only logical, plausible explanation" he could come up with was that, on the evening of January 22, 2002, while attending a bachelor party for a fellow Miami-Dade County police officer at the Play Pen South, a topless nightclub, one of the dancer's at the nightclub, with whom he had gotten into an argument over payment for a "lap dance," had "put something in [his last] drink [that evening] which caused [him] to test positive for cocaine." He had not seen anyone, including any of the nightclub's dancers, "put anything in [any of his] drink[s]" that evening, but he had left his last drink unattended before consuming its contents and he felt, at the time he was questioned by Lieutenant Machanic, that it was possible that the drink could have been tampered with when out of his sight. This last drink, a 12-ouncce beer, had been his eighth of the evening. In addition to these eight beers, he had consumed four shots of scotch while at the bachelor party. Two dancers and a bartender at the Playpen South also gave statements during the investigative process. Following the completion of the internal affairs investigation Respondent's employment with the Miami-Dade County Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified law enforcement officer, issued law enforcement certificate 233642. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest 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. The initial test performed by Quest is an immunoassay test used to screen all samples. Any sample that is positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine. Respondent was terminated from his position as a law enforcement officer by the JSO. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.
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 law enforcement officer be suspended for a period of 60 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 3rd day of February, 2011, 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 3rd day of February, 2011.
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue 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.
Findings Of Fact 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. From September 27, 2004, to November 9, 2007, Ms. Valderrama was employed by the Osceola County Sheriff's Office. 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. 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. The minimum level of detection for Cocaine is 150 nanograms per milliliter. 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. 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. 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. 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. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.
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.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Lois E. Anderson Bailey, was a licensed practical nurse in the State of Florida under license number 12519-1. During the period between July, 1982 and January, 1983, and for an unknown period both before and after that time, Dr. Allan R. Varraux was a pulmonary specialist who, as a part of his practice, performed bronchoscopies at ORMC. As a routine part of this practice, Dr. Varraux utilized a cocaine solution to spray the back of the throat of his patients as an anesthetic prior to inserting the bronchoscope. Cocaine is also used as an anesthetic after the bronchoscope is inserted because it lasts between one-half an hour to forty-five minutes as opposed to xylocaine which lasts only fifteen minutes or so. Dr. Varraux also prefers to use cocaine over xylocaine because the latter often causes spasms in the patient. During this period, Dr. Varraux knew the Respondent, who was nursing supervisor of the Endoscopy section at the time, and discussed with her the controls for the use of cocaine for this purpose because cocaine is a controlled substance. At no time did Dr. Varraux ever discuss with Respondent the potential for the substitution of xylocaine for cocaine in this procedure nor did he ever approve its substitution. On or about January 18, 1983, Dr. Varraux wrote a letter to Mr. Holton, Director of the hospital pharmacy, asking for a survey of cocaine use at ORMC. He did this because of a survey done at another hospital at which he also practiced with which he was familiar to be sure that the amount of cocaine he was using was reasonable. The audit revealed that at the time in issue here, no cocaine was dispensed by the pharmacy for the Endoscopy section. Dr. Varraux considered this odd because he was ordering cocaine solution for the bronchoscopies he was performing and as a result, some cocaine should have been issued. He subsequently found out that xylocaine was being substituted for cocaine. He had not authorized the substitution and was greatly concerned because of the potentially serious impact the substitution might have on a patient if the patient were allergic to xylocaine and the physician did not know that the substitution had been made. In his opinion, it is not good medical practice to substitute xylocaine for cocaine without the doctor's orders and without informing the physician of the change. In practice, the cocaine is injected with a syringe into the apparatus being utilized during the bronchoscopy. At that point, the order for the use of cocaine is a verbal order which is, thereafter recorded in the nurse's notes and in the doctor's dictated report concerning the procedure. Since there is no standard procedure for this operation, Dr. Varraux established, in discussions with the Respondent, his general procedures which in all cases included the use of cocaine as an anesthetic. Respondent actually assisted in very few of Dr. Varraux procedures. Eighty-five percent of his procedures were done with Ken Rosenau assisting and Mary Ann Hinds assisted in others. However, Respondent was the supervisor of the endoscopy section and if there was a problem, Dr. Varraux would go to her first. Lynn W. Capraun, an instructor of respiratory therapy at Valencia Community College, and an advisor in that area to ORMC, was asked by Mr. Rogers to audit the endoscopy section records for bronchoscopies performed from July, 1982 through January, 1983. His audit was limited to only those on a list of procedures given him by Mr. Rogers and he is not aware of what percentage of the total bronchoscopy load this list consisted of. However, as a part of this audit, he reviewed for each specific case the doctor's clinical resume' and the nurse's notes to see what the doctor called for and what was in fact done. Based on his audit, it appeared that during the period in question, more than 203 ml of cocaine had been ordered by physicians but there was no supporting documentation in the nurse's notes to indicate that the cocaine had been administered even though there was documentation for the use of other drugs. Here, it should be noted that Mr. Capraun is also the partner of Mr. Rogers in a private respiratory therapy business. The records of the pharmacy at ORMC revealed that the last issue of cocaine too the endoscopy section prior to the audit was made in July, 1982. Prior to that time, as far back as 1981, records indicated that the pharmacy had issued 60 ml of cocaine solution every three or four weeks. All issues are reflected as such issues are logged and the name of the individual to whom the drug is issued, who must be licensed, is retained. In addition, pharmacy records reflected no issue of any controlled drug, not only cocaine, to the endoscopy section between late October, 1982 and January 3, 1983. After Respondent was suspended on January 19, 1983, Mr. Holton examined the drug sheets kept in the endoscopy section and the drugs kept on the floor. He found three bottles of cocaine solution, one of which contained 60 ml and the other two contained 40 ml. Analysis of the contents of one bottle reflected the solution at 3.9 percent cocaine which is acceptable. The other two bottles, however, were at a lower strength - one at .5 percent and the other at 1.4 percent cocaine. Though there were three bottles of solution, only two records to support these bottles were found. One was dated May 21, 1982 and the other, June 23, 1982. Cocaine is issued by the pharmacy only upon the presentment of a proof of use sheet which reflects the fact that the previous issue has been used up and it is the practice of the pharmacy, according to Mr. Holton, not to issue new supplies of a controlled substance without a proof of use sheet to show the use of the previous issue. The records of the hospital reflect that the Endoscopy section is a small user of any controlled drug. From the above, an inference can be drawn that cocaine was improperly removed from the Endoscopy section. However, from review of the evidence as a whole, not only that already discussed but that to be discussed as well, it is impossible to determine for certain that there was a loss and if so, who was responsible for it. It certainly cannot be said with any degree of certainty that the Respondent either took it or knew who did. When Mr. Rogers received the letter from Dr. Varraux regarding the use of cocaine in the Endoscopy section of his department, he went to look for the Respondent to discuss the problem with her. He found that she had gone for the day and so he discussed the situation with Mrs. Williams, one of Respondent's assistants, who advised that Respondent had, at times, asked her to substitute xylocaine for cocaine. The following day, he looked into the situation further and after talking with his supervisor, called in Respondent and showed her Dr. Varraux's letter. He says Respondent first indicated she was aware of the situation - then changed her position. She again changed her position, indicating that she was aware of only one incident and that she had discussed with the employees of the section the illegality of the practice advising them not to do it. Mr. Rogers was told by his employers that he could suspend the Respondent if he felt it to be necessary. As a part of his inquiry, he discussed the matter with Mr. Holton and other employees of the department whom he asked to make statements regarding the alleged substitution. His requests were for specifics of the incidents - if they knew of the practice, who had asked them to do it, and things of that nature. When he got the employees' statements back, he reviewed them and took them to the personnel office for advice. Thereafter, he notified Respondent by mail of her termination. Mary Ann Hinds worked at the Endoscopy section as an LPN during the period July, 1982 through September, 1983 assisting physicians, including Dr. Varraux, in bronchoscopy procedures. She contends that at some time during October or November, 1982, Respondent called her into the office and advised that cocaine would no longer be used in bronchoscopy procedures and xylocaine would be substituted. She says she was told to chart the initial 4 percent xylocaine solution but not the 10 percent xylocaine solution she would give to the doctor without telling him of the substitution even though the doctor might ask for cocaine. She says that Ms. Bailey told her this would be done because during a prior procedure when the assistant used xylocaine instead of cocaine, Dr. Varraux did not know the difference and Bailey concluded that they would use the xylocaine instead of cocaine thereafter. Ms. Hinds did not question this because Respondent was the head of the department. Ms. Bailey was, in her opinion, difficult to talk to and as a result of these instructions, she followed this new procedure from the time of the instruction on through January, 1983. During this period, she saw Mr. Rosenau and Mr. Hooper also do the same thing. Although Ms. Hinds was quite definite in her testimony regarding the conversation with Ms. Bailey, she is significantly less sure of her testimony regarding control of drugs on the ward. For example, she cannot recall ever signing any proof of use forms. She contends that the LPNs and technicians did not sign off on the drug book. They would tell the Respondent what was used and she made the entries. When cocaine was to be used, she got it from a bottle in the Respondent's office. Helen Williams also worked under Respondent in the endoscopy section until January, 1983 assisting doctors with bronchoscopy procedures. When she first came to work in this section, she did not know that cocaine was being used. She recalls that in a conversation shortly after she came to work, Respondent told her they were using 4 percent xylocaine solution in place of a cocaine solution because they had done it one time with Dr. Varraux and he did not notice and as a result, they continued to follow this procedure. However, Ms. Williams, though she subsequently heard from Rosenau that substitutions were being made, never saw it done nor did she ever substitute. Though she says she advised Respondent she didn't think this substitution was a good idea, Respondent is supposed to have replied that this is the way it was done. Ms. Williams accepted Ms. Bailey's word when told that there was no cocaine on the unit and that cocaine was not being used even though the drug book at the time showed 27 cc of cocaine solution unused and on the unit. She discussed this with Ms. Bailey and concluded that if her supervisor knew about it, that was sufficient, and she did not report this to anyone else. She also did not report her knowledge of the substitutions being made to anyone else because she did not feel it was her place to do so since Respondent was the section head and knew about it. Ted Hooper, also an endoscopy technician, did bronchoscopies with Dr. Varraux for several years and toward the end, substituted xylocaine for cocaine in these procedures without telling the doctor what he was doing. He had seen Rosenau substitute xylocaine while he was watching procedures to learn how to do them before becoming a technician. When he asked Bailey about this, he says, she responded that it was done, for one reason, because it was cheaper for the patient. She also told him it was all right to do this as it had already been taken care of. She did not tell him, outright, to make the substitution but because she had said it was taken care of, he thought it was permissible. However, he also contends that he observed cocaine being used by Hinds and others in Dr. Varraux' cases after he became a technician in July, 1982. James E. Hardy, in October, 1982, employed as a transporter in the Endoscopy section of ORMC, also assisted in bronchoscopies, working at times with Dr. Varraux and he was aware of the practice of substituting xylocaine for cocaine in these procedures. When he first went to work in the section, he says, he was asked to substitute by Respondent who told him it was being done because it was cheaper for the patient but refused to do so. To his knowledge, however, he does not recall seeing the substitution actually performed. On one bronchoscopy he recalls, which he set up, cocaine was used which he got from Respondent. Mr. Rosenau testified at the March, 1985 hearing. He clearly indicated that xylocaine was substituted for cocaine in the procedures performed by Dr. Varraux and the cocaine they had on hand was rarely taken from the drug locker. He absolutely denies that during all the period of time he was working with Respondent, he ever discussed with her or admitted to her that he had substituted xylocaine for cocaine nor did Respondent ever tell him to do this. In fact, he cannot recall how this practice got started. Here it should be noted that Rosenau, Hardy, and Hooper were all friends of Mr. Rogers and at least Rosenau and Hardy owed their employment at the time to him. Respondent was recognized by Dr. Bone as partially responsible for the growth of the Endoscopy section at ORMC. He recalls her as being an exceptional nurse: reliable, dependable, and proficient - a perfectionist who did an excellent job. He had complete confidence in her ability and in her honesty and integrity. If he asked her to do something, she did it more reliably than others. Because of her perfectionist nature, however, she may have alienated people and turned them away, but he never had any doubts about her nor did he ever have any reports from other doctors that she did not do her job well. He worked with her until she left the hospital. She was a "take charge" person but never exceeded her authority or deviated from prescribed procedures or doctors' orders. This opinion of Respondent is shared by Christina Stephens who worked under Respondent for a period of time. She found the Respondent to be stern, regimented as to order of procedures, and very organized, but she never saw any irregularities by the Respondent in carrying out doctor's orders. As to Mr. Rosenau, however, of whom she also had some knowledge, she found him to be somewhat unprofessional in his patient care and actions and brought this to the attention of the supervisor by written report on several occasions. This was, however, several years prior to the time in issue here and she has not worked with him since 1976 nor does she have any knowledge of his performance since that time. Respondent began work at ORMC after she was a student in the respiratory therapy program there at the request of Mr. Rogers. She started as a pulmonary rehabilitation technician part time. At that time, there were only two employees in the section. When, after a few months, the supervisor left, Respondent took over. Over a period of time, new procedures were introduced including gastroenterology and Respondent was trained in them as she went. She began doing more of the latter than pulmonary rehabilitation even though she remained head of that section. She was then asked to help set up an Endoscopy section and started doing those procedures as well. Rosenau was working on the floor in the respiratory therapy section and was having trouble with his supervisor. As a result he wanted to come to work in the Endoscopy section and Respondent arranged a transfer for him even though he had little experience in endoscopy and none in gastroenterology. When she first started working with gastroenterology, the patient and his medication were brought into the section. When the procedure was finished, the unused medication was sent back with the patient. As the section got bigger however, and more procedures were accomplished, this practice began to hold things up. The physicians requested that medications be kept in the section for their use. Respondent resisted this because she did not feel there were sufficient safeguards available to maintain proper control. Nonetheless, the physicians pushed for it but the change did not happen until Dr. Varraux became insistent that the medications be kept there. He worked through Rogers and Holton to get a narcotics box installed on the section. When this was done Mr. Holton gave two sets of keys to the box to Mr. Rogers who immediately turned one set over to the Respondent and gave one set to Rosenau. When Dr. Varraux decided to use cocaine for anesthesia he discussed it with Rogers and Holton since Respondent did not have the authority to request it. As a result, the pharmacy began dispensing 60 ml bottles of cocaine solution for use in bronchoscopies with a control sheet accompanying it to be kept in the locked portion of the bronchoscopy cart. Again, Respondent and Rosenau both had access to this cart. In fact, Rosenau had access to every key that Respondent had except the one to her desk. According to the Respondent, she had difficulty with Rosenau regarding drugs on several occasions when he would draw narcotics into syringes, a procedure he was neither trained nor authorized to do. In the Spring of 1982, bronchoscopies were done by nurses who would give valium but cocaine was administered by Rosenau only. However, when cocaine was used, Respondent would sign off on the sheets along with others whose names appeared on the form as administers of the drug. In mid-1982 bronchoscopies were transferred to the respiratory therapy section, by then headed by Rosenau, but this did not seem to work out and after a short period, the procedure was returned back to the endoscopy section, with Rosenau still doing them under the overall supervision of Respondent. Respondent contends that she did not train people to do the bronchoscopy procedures. Rosenau had been doing this for months before all of this took place. Ms. Hinds came to work in late July, 1982, and Respondent had no control over bronchoscopies at that point as they were in Rosenau's section. As to Hardy, she characterized him as an errand boy who was never trained to do bronchoscopies and with whom she never discussed them. She did, however, have a discussion with Rosenau on one occasion about cocaine. She relates that on this particular instance, Rosenau advised her in confidence that he had substituted Xylocaine for cocaine by mistake on a bronchoscopy performed by Dr. Varraux and wanted to get it off his chest. He assured her that if she would give him another chance, he would never let it happen again. Here, even though Rosenau had a previous disciplinary record which she had discussed with Rogers, she decided to take no action because she felt it would be fruitless. Rogers had taken no corrective action against Rosenau in the past and she had no reason to believe he would do so now. Rosenau, as was seen above, denies this conversation but no doubt it did occur. Respondent does not know why she was terminated and was shocked by the action. Rogers had mentioned something about cocaine and had given her an opportunity to resign but she refused. She claims to know nothing about the dilution of the cocaine solution. She claims to know nothing of the substitutions of xylocaine for cocaine other than that reported to her by Rosenau. She categorically denies ever telling Hinds, Williams, or anyone else to substitute xylocaine for cocaine. Counsel for Respondent spent considerable time attempting to establish that the charges against her are the result of a plot by Rogers, Rosenau and others at the hospital to remove her from her position. At best, the evidence shows a lack of control within the respiratory therapy section. There does appear to be a decided relationship between Mr. Rogers and Mr. Rosenau but Respondent has failed to establish that this relationship manifested itself in a plan to bring about her unjustified separation. The evidence establishes that xylocaine was substituted for cocaine and there is some substantial evidence to indicate the Respondent had some knowledge or information indicating that this was being done. There is no credible evidence, however, to establish that Respondent herself substituted xylocaine for cocaine or instructed or directed anyone else to do so. At worst hers is a sin of omission rather than commission.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character". The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989. The issues are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number 02-86-002-02. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird. Respondent was not a participant in the detail to which the two officers were assigned that evening. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs). On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled. The story would be more plausible if it were not for ensuing events. After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police. He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet. The parties' prehearing stipulation establishes the following: On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.] At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely identifiable as the Respondent's urine sample. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital Toxicology Laboratory by Mr. Wallace. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed an initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine. Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine. Both benzoylecgonine and ecgonine are unique metabolites of cocaine. The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement. Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.
Recommendation Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate. RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 James E. Lyons 415 18th Street, S.E. Winter Haven, FL 33880 Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
