12-002250PL Criminal Justice Standards And Training Commission vs. Anthony W. Hatcher Status: Closed Recommended Order on Thursday, October 18, 2012.

Summary: Petitioner proved that Respondent tested positive for marijuana on a random drug test. Recommend 90 days suspension followed by probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) )

TRAINING COMMISSION, )

)

Petitioner, )

vs. ) Case No. 12-2250PL

)

ANTHONY W. HATCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 31, 2012, a duly-noticed hearing was conducted by

video teleconferencing with sites in Tallahassee and Pensacola,

Florida, before Lisa Shearer Nelson, an administrative law judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Anthony W. Hatcher, pro se

STATEMENT OF 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?

PRELIMINARY STATEMENT

On May 9, 2012, the Florida Department of Law Enforcement,

or “the Commission”), filed an Administrative Complaint against

Respondent, Anthony Hatcher (“Respondent” or “Hatcher”),

charging him with violating section 943.1395(7) and rule 11B-

27.0011(4)(d), by failing to maintain the qualifications

established in section 943.13(7). The charges are based on the

factual allegation that on or about December 9, 2011, Respondent

tested positive for marijuana in a random drug test.

Respondent disputed the allegations in the Administrative

Complaint and requested a hearing pursuant to section 120.57(1).

On June 25, 2012, the case was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge.

On July 5, 2012, a Notice of Hearing by Video

Teleconference was issued, scheduling the hearing for August 31,

2012. The hearing proceeded as scheduled. Petitioner presented

the testimony of Juston Day, Ajai Saini and Neil J. Dash, M.D.

Petitioner’s Exhibits 1-5 were admitted into evidence.

Respondent testified on his own behalf and presented the

testimony of James Holland and Linda Jernigan, and Respondent’s

Exhibit 1 was admitted into evidence. The one-volume Transcript

was filed with the Division on September 17, 2012, and both

parties timely submitted Proposed Recommended Orders that have

been carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent has been a certified

corrections officer.

2. As a certified corrections officer employed by the

Department of Corrections, Respondent was subject to random drug

testing.

3. 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.

4. Respondent gave the specimen by urinating in a specimen

cup provided to him by Juston Day, an employee of Labcorp.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2012).

19. This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to discipline Respondent's

certification as a corrections officer. Petitioner bears the

burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep't of Banking and Fin. v. Osborne Sterne & Co. , 670 So. 2d

932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

20. As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson

, 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

21. The Administrative Complaint contains the following

factual allegations:

2. On or about December 9, 2011, the

Respondent, Anthony W. Hatcher, did then

test positive for a controlled substance,

Marijuana, by blood and/or urine test which

reflected a positive reading consistent with

the indicative of the ingestion of a

controlled substance listed in Chapter 893,

F.S.

3. The actions of the Respondent did

violate the provisions of section

943.1395(7), Florida Statutes, and Rule 11B-

27.0011(4)(d), Florida Administrative Code,

in that Respondent has failed to maintain

the qualifications established in section

943.13(7), Florida Statutes, which require

that a Correctional Officer in the State of

Florida have good moral character.

22. Section 943.1395(7) and (8) provides:

(7) Upon a finding by the commission that a

certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status for

a period not to exceed 2 years, subject to

terms and conditions imposed by the

commission. Upon the violation of such

terms and conditions, the commission may

revoke certification or impose additional

penalties as enumerated in this subsection.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

(8)(a) The commission shall, by rule, adopt

disciplinary guidelines and procedures to

administer the penalties provided in

subsections (6) and (7). The commission

may, by rule, prescribe penalties for

certain offenses. The commission shall, by

rule, set forth aggravating and mitigating

circumstances to be considered when imposing

the penalties provided in subsection (7).

(b)1. The disciplinary guidelines and

prescribed penalties must be based upon the

severity of specific offenses. The

guidelines must provide reasonable and

meaningful notice to officers and to the

public of penalties that may be imposed for

prohibited conduct. The penalties must be

consistently applied by the commission.

23. The Commission has defined "good moral character" for

purposes of section 943.1395(7) in Florida Administrative Code

Rule 11B-27.0011(4). At the time of the alleged offense, rule

11B-27.0011(4) provided in pertinent part:

(4) For the purposes of the Criminal

Justice Standards and Training Commission’s

implementation of any of the penalties

specified in section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

* * *

(d) A certified officer’s unlawful

injection, ingestion, inhalation, or other

introduction of any controlled substance, as

defined in section 893.03, F.S., into his or

her body as evidenced by a drug test in

accordance with sections 112.0455, 440.102,

or 944.474, F.S.

24. The drug test taken by Respondent was administered in

a manner consistent with sections 112.0455, 440.102, and

944.474, as required.

25. Petitioner has proven the violation alleged, i.e.,

that Respondent tested positive for a controlled substance, in

this case, marijuana, by clear and convincing evidence. It is

not necessary for Petitioner to demonstrate that Respondent

engaged in the illicit use of marijuana. It need only

demonstrate that he in fact tested positive for marijuana at a

level consistent with the ingestion of the drug.

26. The Commission has established disciplinary guidelines

for the imposition of penalties for failure to maintain good

moral character. At the time of the offense in this case,

Florida Administrative Code Rule 11B-27.005(5)(d) provided:

(d) Notwithstanding subsection (4) of this

rule section, for the unlawful use by a

certified officer of any controlled

substances specified in section 893.13,

F.S., or Rule 11B-27.00225, F.A.C., pursuant

to paragraph 11B-27.0011(4)(d), F.A.C., the

action of the Commission, absent clear and

convincing evidence of complete

rehabilitation and substantial mitigating

circumstances, shall be to impose a penalty

ranging from prospective suspension to

revocation.

27. The undersigned has carefully considered the

Disciplinary Guidelines, as well as the aggravating and

mitigating factors specified in rule 11B-27.005. It is noted

that the Department did not present any evidence of prior

discipline, or any evidence of suspicion that Respondent was

using illicit drugs. Based on the totality of the evidence, the

penalty imposed should be at the lower end of the guideline

range, but a penalty is required that will both deter other

officers from engaging in the illicit use of drugs and allow

Respondent to return to employment in law enforcement under

supervision.

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

[phone]

Fax Filing [phone]

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

[e-mail]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.