The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody Control Form and on the label affixed to each specimen bottle was correct. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of cannabinoid. It did not change the positive result; it merely quantified it. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). Respondent's certification be revoked. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 27th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie B. Ward 1043 Booker Street Sebring, Florida 33870 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This cause concerns the issue of whether the Petitioner should impose disciplinary sanctions against the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. Specifically the issues concern whether the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by a certified law enforcement officer and, if he has not, what discipline is warranted.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing (certification) of law enforcement officers and with enforcing the practice standards embodied in Chapter 943 Florida Statutes and pendent rules. It regulates the practice of law enforcement officers through the enactment of regulatory standards and enforcement of such standards by rulemaking, as well as by implementation of policy decisions. The Respondent was certified as a law enforcement officer on June 17, 1982. He was issued certificate number 02- 331-00. The Respondent was employed as a police officer by the City of Gainesville Police Department at all times pertinent to this proceeding. Early on the morning of January 2, 1988, the Respondent returned from a trip to Atlanta, Georgia, of several days duration. He returned directly to his residence at the Gardenia Apartments, an apartment complex in Gainesville, Florida. On that morning, Sergeant Louis Aceveda of the Gainesville Police Department responded to a call to investigate a complaint of loitering and a possible illicit drug transaction at the apartment complex. Sergeant Aceveda is a narcotics investigator for that police department. Shortly after his arrival at the Gardenia Apartments complex, Sergeant Aceveda coincidentally encountered the Respondent, a fellow police officer, when the Respondent was driving into the parking lot of the complex. They engaged in a brief conversation about Sergeant Aceveda's purpose at the site and the Sergeant asked the Respondent if he could use the restroom in the Respondent's apartment. The Respondent readily agreed. Upon entering the Respondent's apartment the Sergeant smelled an aroma of burnt marijuana. No one else was present in the apartment at that time other than Sergeant Aceveda and the Respondent. The Sergeant made his way to the only restroom in the apartment and closed the door. Once he was in the restroom he observed a partially-burned marijuana cigarette in an ashtray lying in plain view on the top of the toilet tank. He confiscated that cigarette remnant, placed it in his pocket, and left the Respondent's apartment without revealing his discovery to the Respondent. After leaving the apartment he reported the incident to his supervisors and fellow investigators. Later that same day, Detective Drayton McDaniel of the Gainesville Police Department Narcotics and Organized Crime Section executed a probable cause affidavit in support of a search warrant application in order to attempt a search of the Respondent's apartment. The affidavit was based on Sergeant Aceveda's observations made earlier that day. It was presented to a county judge who found probable cause and issued a search warrant for the Respondent's apartment. At approximately 7:50 p.m. on January 2, 1988 Detective McDaniel and several other officers met the Respondent outside his apartment. Detective McDaniel knew the Respondent as a fellow police officer. He read the search warrant to the Respondent and the Respondent exhibited no specific reaction, asked no questions and made no comments concerning the search. Detective McDaniel and the officers assisting him then entered the apartment and began the search. Detective McDaniel collected, packaged and placed identification on certain seized items found during the search. Sergeant A. W. Smith, the Respondent's former supervisor, assisted with the search. He found a metal can top which contained approximately one tenth of a gram of marijuana (cannabis) as well as "rolling papers" commonly used to roll marijuana cigarettes. This material was in plain view on top of the Respondent's dresser in his bedroom. The Respondent's police badge and identification had been placed almost in contact with the metal can top on top of the dresser also. Investigator Richard Brooks of the Alachua County Sheriff's office also assisted in the search. He found an ashtray in the Respondent's bedroom which contained three marijuana cigarettes. Inside a drawer in the dresser Detective McDaniel found a black ceramic smoking pipe containing the residue of cannabis in the bowl. Sergeant Smith found a closed, purple handbag in the same bedroom on top of a chest at the foot of the bed. Inside the handbag was the Respondent's service revolver, issued to him by the Gainesville Police Department, as well as a small bag containing 1.5 grams of cannabis. Detective McDaniel found two cannabis cigarettes in the Respondent's automobile after he had obtained the Respondent's consent to search it. Sergeant Smith found four partially smoked marijuana cigarettes weighing approximately a tenth of a gram which were in a metal tray on the top of a dresser in the Respondent's bedroom. These were in plain view. Sergeant Smith also found a round tray under the dresser in the Respondent's bedroom which contained .1 gram of cannabis. During this lengthy search the Respondent was present. Despite this he made no statements nor asked any questions of his fellow police officers, who were known to him, while they were searching his home and his vehicle. However when Detective McDaniel discovered a small bag of suspected cocaine in his vehicle the Respondent indicated to him that his fingerprints would not be found on the bag. Other than this he was heard to make no comment during the entire search. After the search was concluded Detective McDaniel told him that he would be arrested. Again he made no statement. On January 4, 1988 Investigator Raymond Griffin of the Gainesville Police Department Internal Affairs Unit conducted an administrative interview of the Respondent. The Respondent was asked to submit to a urinalysis to determine if he had used narcotics but refused to do so. On January 5, 1988 the Respondent resigned his position with the Gainesville Police Department after having worked in that capacity for five and one- half years. On May 31, 1988 he entered a plea of nolo contendere on the charge of possession of cannabis before the County Court, In And For Alachua County. The Respondent maintained in his testimony that he had been to Atlanta on a vacation trip for several days, during which time his brother and some of his friends had used his apartment, apparently as a place for temporary residence and to "party". The Respondent indicated that he felt that his brother or other persons occupying the premises temporarily, during his brother's possession of them, had left the marijuana cigarettes and remnants of them on the premises. The Respondent maintained that he was gathering these items to begin investigating their origin and who might be responsible for them and that this was why he had the marijuana in the purple handbag and on top of his dresser. He had no explanation for the marijuana cigarette remnants from the bathroom or under the dresser or from his vehicle, however. The same is true of the discovery of the cocaine in his vehicle. The Respondent maintained that he was unable to locate his brother to secure his testimony for this proceeding because at some point after the Respondent's arrest and resignation from the Gainesville Police Department, and before this hearing, the Respondent's brother was convicted of a felony, and sentenced and incarcerated in the state prison system. The Respondent professed not to know his whereabouts at the time of the hearing. The Respondent's version of events concerning his gathering the marijuana in his bedroom as evidence, for purposes of conducting an investigation concerning its origin is not accepted. It is not credible to believe that a police officer of five and one-half years experience would gather marijuana and place it on his dresser in a convenient location, in the belief that persons not normally using his apartment had left those items there, without conducting a thorough search of his apartment so that he would have discovered the other marijuana remnants and also gathered them into a central location for preservation as evidence. If he had really intended gathering the marijuana in his bedroom as evidence, he would certainly have discovered that which was found in the bathroom, under the dresser and the marijuana smoking pipe from the dresser drawer. The fact that these other items were discovered not gathered and preserved in one location for transmittal to the police department, and the origination of an investigation, belies the Respondent's story in this regard. In fact, it appears that the Respondent was simply in possession of an illegal substance, marijuana, in his apartment and the search was conducted and the discoveries made before he could dispose of it. His story is further belied by the fact that cocaine and marijuana cigarettes were found in his automobile, which does not fit his description of events concerning his gathering of evidence to investigate who might have left the marijuana lying around the apartment. He was in possession of his automobile during the Atlanta trip. Further, his possession of the marijuana in question in the apartment was shown by the fact that he was present at home in the residence when the search warrant was served and the marijuana was lying around, or most of it was, in plain view. It is, thus, difficult to believe that he was unaware of its presence and did not have dominion and control over it. The fact that the marijuana in his apartment was under his dominion and control and, therefore, his possession, is corroborated by the fact that marijuana was found, along with cocaine, in his vehicle, which points to the fact that all the illegal substances found were possessed by the Respondent with his knowledge. There was certainly no evidence that Respondent's brother or other unknown persons had used his vehicle and left marijuana and cocaine therein unbeknownst to the Respondent. In summary, the marijuana being in plain view in the apartment at several different locations indicates that it was in the Respondent's actual possession, that he knew of it, and that he simply was surprised before he could discard it or otherwise dispose of it.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement revoking the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings Of Fact: 1-28. Accepted. Respondent's Proposed Findings Of Fact: Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, and not entirely supported by the clear and convincing evidence of record. Accepted. Accepted. 5-13. Accepted. 14. Accepted, but not itself materially dispositive of the issues presented for adjudication. Copies furnished to: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Horace N. Moore, Sr. Attorney at Law Post Office Box 2146 Gainesville, FL 32602 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the 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, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
Findings Of Fact Respondent is a certified corrections officer, certificate number 68527. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine. The positive test was observed by Sgt. Farless and Respondent. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance. The area Respondent was traveling through is known as a high drug area with a high crime rate. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent, Kalangie J. Serrano, is a state certified correctional officer holding certificate No. 186788. In the early morning hours of February 9, 2002, Respondent was observed by Orlando Police Department Officer Jonathan Cute sitting in the driver's seat of Respondent's automobile. As Officer Cute approached the vehicle, he smelled a strong odor of marijuana coming from the vehicle and observed smoke in the passenger compartment of the automobile. As Officer Cute approached the vehicle, he noticed Respondent place something onto the center console of the vehicle. As Respondent exited the vehicle at Officer Cute's request, Officer Cute observed and smelled a cloud of marijuana smoke in the interior of the vehicle and determined that the object placed on the vehicle's console was a red metal pipe typical, in his experience, of the type of pipe used for smoking marijuana. Noting the presence of a burning residue in the pipe and suspecting it to be marijuana, Officer Cute performed a field test on the substance which tested positive determining that the substance was cannabis. Officer Cute arrested Respondent and charged him with possession of less than 20 grams of cannabis and possession of drug paraphernalia. No admissible evidence was received as to any determination of the charges filed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement Criminal Justice Standards and Training Commission, enter a final order finding that Respondent, Kalangie J. Serrano, violated Subsection 893.147(1), Florida Statutes, and, as a result, failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and that he be placed on probation for two years, be required to submit to drug testing, be enrolled in drug prevention education, and such other associated penalties as Petitioner deems appropriate. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kalangie J. Serrano 4340 Lauren Lane Titusville, Florida 32780 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), 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 corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp 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 Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
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 corrections officer be suspended for a period of 90 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 18th day of October, 2012, 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 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
