The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),1/ and Florida Administrative Code Rule 11B-27.0011(4)(d); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would come back positive or indicate any reason to distrust the drug test laboratory. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my 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 and numbers provided on this form and on the label affixed to each specimen bottle is correct." Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act 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. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for 20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive). Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455. No evidence of any prior disciplinary history was introduced for Officer Barcia.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of January, 2019.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
The Issue Whether Respondent raced animals that were impermissibly medicated or determined to have prohibited substances present, resulting in a positive test for such medications or substances in violation of section 550.2415(1)(a), Florida Statutes (2016),1/ as alleged in the administrative complaints; and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. Respondent is the holder of Pari-Mutuel Wagering Individual Occupational License No. 1572955-1021, which authorizes her to train greyhounds in Florida pursuant to section 550.105. Respondent has been licensed by Petitioner since 2009. At all times relevant to the charges at issue in these proceedings, Respondent was subject to chapter 550 and the implementing rules codified in Florida Administrative Code Chapter 61D-6. The Administrative Complaints As noted above, Petitioner served Respondent with four administrative complaints charging her with a total of seven counts of violating statutes and rules governing pari-mutuel racing by impermissibly medicating or administering prohibited substances to racing greyhounds for which she was the trainer of record for races held at the PBKC on specific dates between September 27, 2016, and January 28, 2017. DOAH Case No. 17-4870 On November 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-049902 and 2016-051419. This administrative complaint was assigned DOAH Case No. 17-4870. Count I of this administrative complaint, DBPR Case No. 2016-049902, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for dimethyl sulfoxide. Count II of this administrative complaint, DBPR Case No. 2016-051419, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4871 On November 30, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-053062 and 2016-053069. This administrative complaint was assigned DOAH Case No. 17-4871. Count I of this administrative complaint, DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Count II of this administrative complaint, also part of DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Count III of this administrative complaint, DBPR Case No. 2016-053069, charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. DOAH Case No. 17-4872 On December 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2016-056707. This administrative complaint was assigned DOAH Case No. 17-4872. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4873 On February 16, 2017, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2017-006845. This administrative complaint was assigned DOAH Case No. 17-4873. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. The Alleged Violations and Respondent's Defenses Racing Greyhound Urine Sample Collection and Testing PBKC is a facility operated by a permit holder authorized to conduct pari-mutuel wagering in Florida under chapter 550. Respondent trained and raced greyhounds at PBKC between September 27, 2016, and January 28, 2017, the time period relevant to these consolidated proceedings. All violations charged in the administrative complaints are alleged to have occurred at PBKC. To enforce the statutes and rules prohibiting the impermissible medication or administration of prohibited substances to racing greyhounds, Petitioner collects urine samples from racing greyhounds immediately before races in which they are participating. At the PBKC, urine samples from racing greyhounds are collected in a restricted area called the "ginny pit." Jessica Zimmerman, chief veterinary assistant for Petitioner, described Petitioner's urine sampling process. The samples are collected by veterinary assistants using clean cups that are unsealed immediately before being used to collect the samples. When each urine sample is collected, the veterinary assistant checks the identification number tattooed on the greyhound's ear and completes a PMW 503 form.5/ Here, the evidence establishes that the urine samples collected that have given rise to this proceeding were collected pursuant to this process.6/ The PMW 503 form shows the pari-mutuel wagering facility for which it was prepared——in these consolidated cases, for the PBKC——and lists the date, race, and post number of the greyhound; the greyhound's name and tattoo number; the time the sample was collected; the trainer's name; the collector's initials; and a unique sample number. Here, the completed PMW 503 forms and other evidence established that Respondent was the trainer of record for the following greyhounds that participated in specified races held on specific dates and from which urine samples were taken: ATASCOCITA ACURA, tattoo no. 6328024A, urine specimen no. 105889, twelfth race on September 27, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108583, second race on October 15, 2016; ATASCOCITA EDGE, tattoo no. 65280114G, urine specimen no. 108633, ninth race on October 19, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108304, tenth race on October 19, 2016; RCK MOHICAN, tattoo no. 65640124A, urine specimen no. 113568, eighth race on November 26, 2016; ATASCOCITA HAPPY, tattoo no. 65573124J, urine specimen no. 125184, ninth race on January 28, 2017. Once a urine sample has been collected, the container is sealed with tape to maintain the integrity of the sample, and a tag on which the sample number is written is attached to the container holding the collected urine sample.7/ The urine samples are placed in a freezer at a restricted area at Petitioner's office and held there until they are shipped to the University of Florida Racing Laboratory ("UF Lab")8/ for testing for the presence of impermissible medications or prohibited substances. Petitioner is in constant possession of the samples until they are shipped to the UF Lab. The containers in which the samples are shipped are securely locked. Here, the evidence established that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were collected, sealed, stored, and shipped to the UF Lab pursuant to the above-described protocol. Once the samples are received at the UF Lab, laboratory staff inspect the samples to ensure that the evidence tape has adhered to the sample cup, cross-check the sample numbers with those on the accompanying PMW 503 form, identify any discrepancies with respect to date and sample number and record them on a discrepancy form,9/ and log the samples into the Laboratory Information Management System. Thereafter, the samples are assigned an internal alphanumeric number and moved into a limited-access area, where they are stored while laboratory staff perform testing. The samples are stored in this area until they either are confirmed as positive for an impermissible medication or a prohibited substance——in which case they are moved to a specific freezer for storage——or confirmed as negative for a medication or prohibited substance and thereafter discarded. As part of the sample testing process, an aliquot is taken and tested for an impermissible medication or a prohibited substance. If the test initially indicates a positive result for an impermissible medication or a prohibited substance, a confirmatory test is performed to determine the quantity of the medication or substance in the sample. The confirmatory testing process entails running calibrated samples, positive controls to ensure that the extraction process was accurate, and negative controls to ensure that there is no carryover of the medication or substance through the confirmatory testing process. If the confirmatory testing process yields a positive result for an impermissible medication or prohibited substance, the documentation is subjected to a two-step supervisory review, followed by generation of a Report of Positive Result, which is transmitted to Petitioner. Here, the evidence establishes that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were logged, stored, and tested at the UF Lab pursuant to this protocol. The Association of Racing Commissioners International has adopted the Uniform Classification Guidelines for Foreign Substances ("ARCI Guidelines"). Classes range from class I drugs, which are stimulants without therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Caffeine is a central nervous system stimulant and class II drug. Under rule 61D-6.007(3)(a), levels of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of caffeine at a urinary concentration greater than 200 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theobromine is a diuretic, smooth muscle relaxant, and class IV drug. Under rule 61D-6.007(3)(b), levels of theobromine at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of theobromine at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theophylline is a bronchodilator, smooth muscle relaxant, and class III drug. Under rule 61D-6.007(3)(b), levels of theophylline at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or a prohibited substance. Conversely, levels of theophylline at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or a prohibited substance. Dimethyl sulfoxide is an anti-inflammatory agent and class IV drug. Dimethyl sulfoxide is a non-threshold drug, which means that it is not permitted to be in a racing greyhound's body at any concentration. Therefore, the detection of any concentration of dimethyl sulfoxide in a urine sample is reported to Petitioner as an impermissible medication or a prohibited substance. Pursuant to section 550.2415(1)(c), the finding of a prohibited substance in a race-day specimen taken from a racing greyhound constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race. Urine Specimen Test Results Urine Specimen No. 105889 - ATASCOCITA ACURA As noted above, urine specimen no. 105889 was collected by Petitioner's veterinary assistant from ATASCOCITA ACURA, tattoo no. 6328024A, before the twelfth race on September 27, 2016. UF Lab gas chromatography-mass spectrometry testing of urine specimen no. 105889 showed a urine concentration of 210 micrograms per milliliter of dimethyl sulfoxide. The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting this test result for urine specimen no. 105889. As discussed above, dimethyl sulfoxide is a non- threshold drug. Accordingly, the finding of 210 micrograms per milliliter of dimethyl sulfoxide in urine specimen no. 105889 establishes that ATASCOCITA ACURA carried an impermissible medication or a prohibited substance in its body during the twelfth race on September 27, 2016. Urine Specimen No. 108583 – ATASCOCITA DALT As noted above, urine specimen no. 108583 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the second race on October 15, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 4.343 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 728 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 1.578 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting these test results for urine specimen no. 108583. The findings of urine concentrations of 4.343 +/- 0.03 micrograms per milliliter of caffeine, 728 +/- 90 nanograms per milliliter of theobromine, and 1.578 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA DALT carried these impermissible medications or prohibited substances in its body during the second race on October 15, 2016. Notwithstanding that the test results for urine specimen no. 108583 showed the presence of theobromine and theophylline in ATASCOCITA DALT during the second race on October 15, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the second race on October 15, 2016. Urine Specimen No. 108633 – ATASCOCITA EDGE As noted above, urine specimen no. 108633 was collected by Petitioner's veterinary assistant from ATASCOCITA EDGE, tattoo no. 65280114G, before the ninth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 822 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 625 +/- 80 nanograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting these test results for urine specimen no. 108633. The findings of urine concentrations of 822 +/- 90 nanograms per milliliter of theobromine and 625 +/- 80 nanograms per milliliter of theophylline establish that ATASCOCITA EDGE carried these impermissible medications or prohibited substances in its body during the ninth race on October 19, 2016. Urine Specimen No. 108304 – ATASCOCITA DALT As noted above, urine specimen no. 108304 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the tenth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108304 showed a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine. This concentration exceeds the non-reportable level for this substance established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting this test result for urine specimen no. 108304. The finding of a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine establishes that ATASCOCITA DALT carried this impermissible medication or prohibited substance in its body during the tenth race on October 19, 2016. Urine Specimen No. 113568 – RCK MOHICAN As noted above, urine specimen no. 113568 was collected by Petitioner's veterinary assistant from RCK MOHICAN, tattoo no. 65640124A, before the eighth race on November 26, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.532 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 3.434 +/- 0.09 micrograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.374 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated December 13, 2016, reporting these test results for urine specimen no. 113568. The findings of 8.532 +/- 0.03 micrograms per milliliter of caffeine, 3.434 +/- 0.09 micrograms per milliliter of theobromine, and 8.374 +/- 0.08 micrograms per milliliter of theophylline establish that RCK MOHICAN carried these impermissible medications or prohibited substances in its body during the eighth race on November 26, 2016. Notwithstanding that the test results for urine specimen no. 113568 showed the presence of theobromine and theophylline in RCK MOHICAN during the eighth race on November 26, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non- reportable level during the eighth race on November 26, 2016. Urine Specimen No. 125184 – ATASCOCITA HAPPY As noted above, urine specimen no. 125184 was collected by Petitioner's veterinary assistant from ATASCOCITA HAPPY, tattoo no. 655731245, before the ninth race on January 28, 2017. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration greater than 1.25 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 988 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 2.129 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated February 10, 2017, reporting these test results for urine specimen no. 125184. The findings of urine concentrations of greater than 1.25 micrograms per milliliter of caffeine, 988 +/- 90 nanograms per milliliter of theobromine, and 2.129 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA HAPPY carried these impermissible medications or prohibited substances in its body during the ninth race on January 28, 2017. Again, it is noted that notwithstanding that the test results for urine specimen no. 125184 showed the presence of theobromine and theophylline in ATASCOCITA HAPPY during the ninth race on January 28, 2017, at concentrations above the non- reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the ninth race on January 28, 2017. Respondent's Defenses Respondent denied having administered any impermissible medications or prohibited substances to the racing greyhounds that are the subject of these proceedings. Respondent also questioned, on three grounds, the accuracy of the test results showing the presence of impermissible medications or prohibited substances in the greyhounds that are the subject of these proceedings. First, Respondent disputes whether the urine specimens that yielded the positive test results were taken from the greyhounds that are the subject of these proceedings. She noted that under Petitioner's previous practice, when a urine sample was taken from a dog, the trainer was able to be present to verify that the animal from which the sample was collected was trained by him or her. She testified that now, under Petitioner's current sampling practice, the trainer is not able to be present so cannot verify the identity of the animal from which the sample is taken. This argument is not persuasive.10/ As previously discussed, Zimmerman described the process by which urine samples are collected from racing greyhounds for prohibited substances testing. As part of the urine sampling protocol, the identity of the greyhound from which the sample is collected is determined pursuant to an identification number tattooed on the dog's ear and that identification number is recorded both on the PMW 503 form and on the urine sample card that is transmitted to the UF Lab for testing. As previously noted, the evidence shows that this protocol was followed in collecting urine samples from the racing greyhounds that are the subject of these proceedings. Apart from mere conjecture,11/ Respondent did not present any evidence to show that the urine specimens for which positive test results were obtained were not collected from the greyhounds specifically identified herein, on the dates and at the times pertinent to these proceedings. Respondent presented evidence to show that conditions at the PBKC made it possible for racing greyhounds to ingest foods and beverages that could cause urine specimens from those animals to test positive for impermissible medications or prohibited substances. Specifically, Respondent testified that foods, such as chocolate, and beverages, such as coffee, sodas, and Red Bull, are available to purchase at the PBKC; that PBKC personnel consume these foods and beverages at many locations within the facility; that these foods and beverages are often left unattended in areas where they are accessible to the racing greyhounds; and that the greyhounds sometimes consume these foods and beverages. Jamie Testa corroborated Respondent's testimony. She echoed that PBKC personnel consume food and beverages in the PBKC facility and leave unfinished food and beverages in various locations, including in the weigh-in area, that are accessible to the greyhounds. She recounted one occasion on which she observed a veterinarian at the PBKC spill coffee and not clean up the spill, leaving it accessible for consumption by greyhounds. She described these conditions at PBKC as pervasive and continuing. In her words, "it's not just from one day. It's every day." On cross-examination, Testa acknowledged that greyhounds are muzzled during the weigh-in process, although she nonetheless asserted that this "doesn't mean that the dogs cannot pick up anything that's on the ground." However, she conceded that she did not witness the greyhounds that are the subject of these proceedings consuming food or beverages during the weigh-in or at any other times on the dates and at the times relevant to these proceedings. Arthur Agganis also corroborated Respondent's testimony that PBKC personnel often consume food and beverages in close proximity to the racing greyhounds, and that food and coffee is sometimes spilled on the ground. Agganis testified that on one occasion he observed a greyhound eat food off of the ground. On cross-examination, Agganis acknowledged that he did not witness any food or spilled coffee at the PBKC on the dates relevant to these proceedings. Respondent also presented an exhibit consisting of eight photographs ostensibly taken inside the PBKC.12/ The photographs depict vending machines from which chocolate bars and other snacks and sodas can be purchased, employees eating food, and unattended soda containers and beverage cups placed on tables and on the floor. On cross-examination, Respondent acknowledged that she took some, but not all, of the photographs, and some of the photographs were provided to her by other persons. She did not identify which photographs she took and which were provided to her by other persons. She also did not identify the specific locations within the PBKC facility in which the photographs ostensibly were taken; she did not identify the persons who took the photographs; and she did not present any testimony by these persons to establish that the photographs were, in fact, taken in the PBKC or that they accurately depict conditions within the PBKC. She also did not present any evidence establishing that the photographs were taken on the dates and at the times when the greyhounds that are the subject of these proceedings raced. In fact, she acknowledged that none of the photographs were taken on those dates, but instead were taken during a timeframe spanning from three months to one week before the final hearing. Respondent's argument that the positive test results are due to the greyhounds that are the subject of these proceedings having ingested foods or beverages at the PBKC rather than having been purposely administered those substances, is unpersuasive. Respondent did not present any evidence to show that the conditions described in Testa's and Agganis' testimony or portrayed in the photographs accurately depicted the conditions present at the PBKC on the specific dates and at the specific times during which the greyhounds that are the subject of these proceedings raced. Most important, even if the evidence showed that these conditions existed at the PBKC on the dates and at the times the greyhounds that are the subject of these proceedings raced, no evidence was presented showing that the greyhounds actually ingested anything at the PBKC that may have caused the positive test results. To the contrary, Respondent, Testa, and Agganis all acknowledged that they did not witness the greyhounds that are the subject of these proceedings ingest any foods or beverages at the PBKC on the dates and at the times pertinent to these proceedings. Respondent also argues that the urine samples taken from the greyhounds that are the subject of these proceedings could have been collected in contaminated containers, resulting in false positive test results for impermissible medications or prohibited substances. Specifically, Respondent testified: "I was able to see two people, like the females from the State, the ones who do——who collect the urine with their coffee cup." Testa also testified that on occasion, she observed veterinary assistants collecting urine samples by placing a urine sample collection cup on the sand in the ginny pit, which could cause cross-contamination of the urine sample. Respondent's testimony that she observed Petitioner's veterinary assistants collect urine samples from greyhounds using coffee cups is neither credible nor persuasive. In fact, Respondent herself testified that trainers do not have access to the ginny pit, so are unable to observe the urine collection process. These contradictions render Respondent's testimony incredible. Further, there is no evidence showing that Petitioner's veterinary assistants placed the urine collection cups on the sand in the ginny pit when collecting urine samples from the greyhounds that are the subject of the proceedings on the pertinent dates and at the pertinent times. Rather, the evidence establishes that Petitioner's veterinary assistants consistently follow an established protocol in collecting urine specimens for testing, which includes using clean, sealed cups that are unsealed immediately before the sample is collected, and then resealed with evidence tape and tagged with the sample number. The credible, persuasive evidence shows that Petitioner's veterinary assistants followed this protocol in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to these proceedings. There is no credible, persuasive evidence showing that this protocol was not followed by Petitioner's veterinary assistants in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to this proceeding. Findings of Ultimate Fact Regarding Violations Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting a positive test for dimethyl sulfoxide. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Aggravating or Mitigating Factors Petitioner presented evidence proving that Respondent was disciplined in 2011 for two violations involving the administration of class III drugs to racing greyhounds. These violations are relevant to determining the applicable penalty ranges in rule 61D-6.012. The violations charged in the administrative complaints filed on November 28 and 30, 2016, and December 28, 2016, occurred sufficiently close together in time such that Respondent was not informed of the violations in these complaints in time to enable her to take corrective measures. However, by the time the administrative complaint dated February 16, 2017, was filed, Respondent was on notice of the violations charged in the previously served administrative complaints, so she had sufficient time before the January 28, 2017, race to take appropriate corrective measures. This constitutes an aggravating factor in determining appropriate penalties. The evidence establishes that the caffeine level in RCK MOHICAN on November 26, 2016, was approximately 42 times the permissible limit for that substance established in rule 61D- 6.007(3)(a). As noted above, caffeine is a class II drug, which means that there is a high potential that its administration would affect the greyhound's performance. This constitutes an aggravating factor in determining appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter final orders in these proceedings as follows: For DOAH Case No. 17-4870, finding that Respondent committed two violations of section 550.2451(1)(a) and imposing a penalty consisting of a $1,500 fine and suspending Respondent's license for 75 days; For DOAH Case No. 17-4871, finding that Respondent committed three violations of section 550.2415(1)(a) and imposing a penalty consisting of a $1,750 fine and suspending Respondent's license for 60 days; For DOAH Case No. 17-4872, finding that Respondent committed one violation of section 550.2415(1)(a) and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days; and For DOAH Case No. 17-4873, finding that Respondent committed one violation of section 550.2415 and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days. DONE AND ENTERED this 27th day of December, 2017, in Tallahassee, Leon County, Florida. S Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2017.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985, and issued certificate number 19-85-502-01, which she still holds. On January 31, 1990, Respondent was employed by Metro-Dade County as a correctional officer and held the rank of corporal. She had been employed as a Metro-Dade County correctional officer for the previous five years. On January 31, 1990, Respondent reported to Mount Sinai Medical Center (Center) in Miami Beach, Florida for a biannual physical examination required by her employer. Respondent had approximately two weeks advance notice of this examination. At about 9:18 a.m., in a private area of the Center, as part of her examination, Respondent urinated into a sterile urine sample cup that had been provided by the Center. She then delivered the cup containing her urine sample to Phyllis Miller, an employee of the Center's laboratory. Miller immediately capped the sample cup and labeled it with bar code number 417002 and the laboratory reference number 83278, thus making it uniquely identifiable. At about 4:14 p.m., the sealed sample cup containing Respondent's urine was delivered to Toxicology Testing Services' (TTS's) laboratory in Miami and placed in secure storage. At about 8:00 p.m., TTS laboratory employee Monica Hernandez retrieved the sample cup. Hernandez dispensed a portion of the urine sample from the cup and then performed an initial chemical screen to determine if there was evidence of any controlled substances or their metabolites in the urine. On March 8, 1990, at about 5:00 p.m., a portion of the remaining urine in the cup was dispensed and a confirmation analysis of the urine was performed. 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. Respondent's urine was analyzed by gas chromatography-mass spectrometry, an extremely reliable confirmatory testing method. This confirmatory testing revealed the presence of benzoylecgonine in Respondent's urine in a concentration of 588 nanograms per milliliter. Benzoylecgonine is a metabolite that is produced when cocaine is introduced into the body. Cocaine is the only substance known to produce benzoylecgonine. The results of the testing of Respondent's urine sample were consistent with, and indicative of, Respondent's voluntary ingestion of cocaine sometime within a two month period prior to giving the sample. 2/ At the time of the final hearing in the instant case, Respondent was no longer employed by Metro-Dade County as a correctional officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of her unlawful use of cocaine on or about January 31, 1990; and (2) revoking her certification, based upon such a finding. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of December, 1991. STUART M. LERNER 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 27th day of December, 1991.
The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
