94-005886 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Reyes P. Ramos Status: Closed Recommended Order on Friday, March 24, 1995.

Summary: Despite positive drug test proof failed to support conclusion that officer unlawfully ingested cocaine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5886

)

REYES P. RAMOS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on January 11, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108

STATEMENT OF THE ISSUE

At issue is whether respondent committed the offense alleged in the amended

administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By amended administrative complaint dated January 20, 1994, petitioner

charged that respondent, a certified law enforcement officer, violated the

provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-

27.0011(4)(c) and (d), Florida Administrative Code, by failing "to maintain the

qualifications established by Section 943.13(7), Florida Statutes, which require

that an officer in the State of Florida have good moral character." The

gravamen of petitioner's charge is its contention that "[o]n or about January

30, 1990, Respondent, Reyes P. Ramos, did unlawfully and knowingly be in actual

or constructive possession of a controlled substance named or described in

Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said

substance into his body."

Respondent filed an election of rights disputing the allegations set forth

in the amended administrative complaint, and on October 18, 1994, the matter was

referred to the Division of Administrative Hearings for the assignment of a

Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1),

Florida Statutes.

At hearing, petitioner called Peter Anta, Edward Moore, and Terry Hall,

Ph.D., as witnesses, and its exhibits 1-6 were received into evidence.

Respondent testified on his own behalf and also called Kathryn Estevez,

Christina Royo, Alejandro Suarez, Pedro Villa, and Rene Saldines as witnesses.

Respondent's exhibits 1-4, 7, 15 and 16 were received into evidence.

The transcript of the hearing was filed February 20, 1995, and the parties

were initially accorded until March 2, 1995, to file proposed recommended

orders; however, at respondent's request, that deadline was subsequently

extended. The parties' proposed findings of fact, contained within their

proposed recommended orders, are addressed in the appendix to this recommended

order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Reyes P. Ramos, was employed

as a law enforcement officer by the City of Opa-Locka Police Department, and was

duly certified by petitioner, Florida Department of Law Enforcement, Criminal

Justice Standards and Training Commission (Department), having been issued

certificate number 19-83-002-05 on October 29, 1983.

2. On January 30, 1990, respondent, as part of his annual physical

examination for the Opa-Locka Police Department, reported to Toxicology Testing

Services (TTS) and provided a urine sample to be analyzed for the presence of

controlled substances. Upon analysis, the sample taken from respondent proved

positive for the presence of the cocaine metabolite, benzoylecgonine, in a

concentration of 55 nanograms per milliliter. Such finding is consistent with

the ingestion of cocaine, as cocaine is the only drug commonly available that,

when ingested into the human body, produces the cocaine metabolite,

benzoylecgonine.

3. On February 5, 1990, the Opa-Locka Police Department notified

respondent that the analysis of his urine sample had proved positive for the

presence of cocaine, a controlled substance. In response, respondent offered to

provide another sample for further analysis.

4. Later that day, February 5, 1990, respondent provided a second sample

of urine to TTS to be analyzed for the presence of controlled substances. Upon

analysis, the second sample also proved positive for the presence of the cocaine

metabolite, benzoylecgonine, but this time at a concentration of 9.2 nanograms

per milliliter. Such reduced concentration is consistent with the initial

concentration of 55 nanograms per milliliter disclosed by the first sample,

assuming abstinence during the intervening period.

5. In concluding that the urine samples respondent gave proved positive

for the presence of cocaine metabolite, careful consideration has been given to

the collection, storage and handling procedures adopted by TTS, as well as its

testing methods. In this regard, the procedures and methods employed by TTS

were shown to provide reliable safeguards against contamination, a reliable

chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS),

a reliable measure of the concentration of cocaine metabolite in the body. 1/

6. While the testing demonstrates the presence of cocaine metabolite in

respondent's system, and therefore the presence of cocaine, it does not

establish how ingestion occurred. 2/ It may be reasonably inferred, however,

that such ingestion was proscribed by law, absent proof that the subject drug

was possessed or administered under the authority of a prescription issued by a

physician or that the presence of cocaine metabolite could otherwise be lawfully

explained.

7. In response to the testing which revealed the presence of cocaine

metabolite in his urine, respondent credibly denied the use of cocaine, and

offered the testimony of a number of witnesses who know him well to lend

credence to his denial. Those witnesses, who also testified credibly, observed

that respondent is a person of good moral character who, among other qualities

has the ability to differentiate between right and wrong and the character to

observe the difference, has respect for the rights of others, has respect for

the law, and could be relied upon in a position of trust and confidence.

Moreover, from the testimony of those witnesses who have known respondent for an

extended period of time, commencing well prior to the incident in question, it

may be concluded that, in their opinions, it is the antithesis of respondent's

character to have ingested or used cocaine.

8. Apart from his denial, respondent offered two possible explanations for

the presence of cocaine in his system: (1) that, during the week of January 18,

1990, he had been in contact with four to five K-9 training aids, which

contained pseudo-cocaine, while cleaning out his dog's possessions, and (2) that

he had been in contact with 10 bags of rock cocaine, during the course of duty,

in the early part of January 1990.

9. As to the first explanation, the proof demonstrates that respondent

was, and had been for some time, a canine officer with the City of Opa-Locka

Police Department, and had a dog named "Eagle" as his partner. "Eagle" was a

cross-trained drug and work dog.

10. In or about September 1988, respondent and his dog attended narcotic

detection training through the Florida Highway Patrol, and received training

aids, which contained "pseudo-cocaine," for use in training dogs in the

detection of cocaine. These aids were comprised of newborn baby socks, inside

of which was placed pseudo-cocaine. The socks were then closed at the top with

rubber bands and placed inside a folded towel, which was then rolled and taped.

According to respondent, he continued to use these aids 2-3 times a week, after

leaving the Florida Highway Patrol course, to keep his dog proficient.

11. Eagle died in early January 1990 and, according to respondent, the

week of January 18, 1990, respondent cleared a number of items that were used in

the care or training of Eagle from a small aluminum shed in his back yard.

Among those items were the training aids, which contained pseudo-cocaine.

12. According to respondent, he disposed of the training aids by cutting

the tape from the towels, removed the sock, and then shook the pseudo-cocaine

into a trash can, which caused some residue to become airborne and contact him.

Respondent's counsel theorizes that such contact with the pseudo-cocaine, as

well as the possibility that some residue could have been lodged under

respondent's fingernails, when coupled with the fact that respondent

occasionally bites his nails, could be an explanation for the positive reading

respondent received.

13. Notably, respondent offered no proof at hearing, through

representatives from the Florida Highway Patrol or otherwise, as to the chemical

composition of the pseudo-cocaine. Under such circumstances, there is no

showing of record that the pseudo-cocaine could have resulted in the positive

reading he received, and it would be pure speculation to conclude otherwise.

14. As to respondent's second explanation, that in early January 1990,

during the course of duty, he had been in contact with 10 bags of rock cocaine,

it likewise does not provide a rational explanation for his positive test

results. Notably, according to respondent, that rock cocaine was bagged and,

necessarily, he would not have had physical contact with the substance.

Moreover, even if touched such would not explain its ingestion, and, considering

the lapse of time from the event and his testing, is not a rational explanation

for the source of his positive results.

15. While the explanations respondent advanced at hearing were not

persuasive, such does not compel the conclusion that his testimony is to be

discredited. Indeed, if respondent never used cocaine, it is not particularly

telling that he could not offer a plausible explanation for what he perceived to

be an aberration.

16. Here, while the results of the urinalysis point toward guilt,

respondent's credible testimony, the character evidence offered on his behalf,

and respondent's employment record suggest otherwise.

17. With regard to respondent's employment history, the proof demonstrates

that respondent was on active duty with the United States military from 1966

until 1972, and with the Florida National Guard (FNG) from 1974 until 1983.

Prior to reverting to an inactive status with the FNG, respondent attended and

graduated from the Southeastern Institute of Criminal Justice, a police academy,

and was thereafter certified as a law enforcement officer.

18. Following certification, respondent was employed by the Village of

Indian Creek as a police officer for one year, and from January 1985 until his

severance in 1990 as a police officer with the City of Opa-Locka. Currently,

respondent is employed by the FNG, with the rank of Sergeant First Class, as a

military criminal investigator assigned to counter drug programs for the

Department of Justice.

19. From respondent's initial employment as a police officer through his

current employment, but for the incident in question, respondent has

consistently been recognized as a professional, loyal and dedicated police

officer who has also dedicated substantial personal time and resources to

community service. During this service, he was frequently commended for his

performance, and he has further demonstrated dedication to his profession

through continued training in the law enforcement field.

20. Among those who testified on his behalf, and spoke approvingly of

respondent's good moral character, were Christina Royo, a sworn law enforcement

officer with the Florida Department of Law Enforcement, and Alejandro Suarez, a

Sergeant First Class with the United States Military, employed as a criminal

intelligence analyst, and currently attached to respondent's FNG unit. Each of

these witnesses are employed in positions of trust involving sensitive areas of

law enforcement, and have known the respondent well for over fifteen years. In

their opinions, which are credible, respondent enjoys a reputation reflecting

good moral character and, it may be gleamed from their testimony, the use of

controlled substances by respondent would be most uncharacteristic.

21. Given the nominal amount of cocaine metabolite disclosed by testing

and the credible proof regarding respondent's character, the inference that

would normally carry petitioner's burden following proof of a positive test for

cocaine metabolite, that such finding reflected the unlawful ingestion of

cocaine, cannot prevail. Rather, considering the proof, no conclusion can be

reached, with any degree of certainty, as to the reason for the positive test

results. Accordingly, such results, standing alone, do not support the

conclusion that respondent unlawfully ingested cocaine or that he is lacking of

good moral character.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Section 120.57(1) and

120.60(7), Florida Statutes

23. This is a license disciplinary proceeding in which the Department

seeks to take action against respondent's certification as a law enforcement

officer based on its contention that he has failed to maintain an essential

requirement for certification, to-wit: good moral character. In cases of this

nature, petitioner bears the burden of proving its charges by clear and

convincing evidence. Ferris v. Turlington, 510 So.2d 292( Fla. 1987). "The

evidence must be of such 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." Slomowitz v. Walker, 492 So.2d 797, 800

(Fla. 4th DCA 1983).

24. Section 943.13, Florida Statutes, establishes the minimum

qualifications for certification as a law enforcement officer, which includes

the following requirement:

(7) Have a good moral character. . . .

25. Section 943.1395, Florida Statutes, establishes the bases for

disciplining the certification of a law enforcement officer. Pursuant to

subsection 943.1395(7) such certification may be revoked, suspended or otherwise

disciplined should the officer fail to maintain a good moral character as

required by Section 943.13(7), Florida Statutes.

26. Pertinent to this case, Rule 11B-27.0011(4), Florida Administrative

Code, defines a failure to maintain good moral character, as required by

subsection 943.13(7), as:

(c) The perpetration by the officer of an

act or conduct which:

1. significantly interferes with the rights

of others; or

2. significantly and adversely affects the

functioning of the criminal justice system or

an agency thereof; or

3. shows disrespect for the laws of the state

or nation; or

4. causes substantial doubts concerning the

officer's moral fitness for continued service; or

5. engage in conduct which violates the standards

of test administration, such as communication with

any other examinee during the administration of

the examination; copying answers from another

examinee or intentionally allowing one's answers

to be copied by another examinee during the

administration of the examination in accordance

with Rule 11B-30.009(3)(b), F.A.C.; or

6. engage in any other conduct which subverts

or attempts to subvert the CJSTC, criminal justice

training school, or employing agency examination

process in accordance with Rule 11B-30.009(2), F.A.C.

(d) The unlawful use of any of the controlled

substances enumerated in section 893.13, F.S. or

11B-27.00225, F.A.C.

Among the substances enumerated in Section 893.13, Florida Statutes, or 11B-

27.00225, Florida Administrative Code, are cocaine or cocaine metabolite.

27. Here, for the reasons set forth in the findings of fact, the

Department has failed to establish, by clear and convincing evidence, that

respondent committed any act proscribed by Rule 11B-27.0011(4)(c), which would

reflect adversely on his good moral character, or that he engaged in the

unlawful use of a controlled substance, as proscribed by Rule 11B-27.0011(4)(d).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be rendered dismissing the administrative

complaint filed against respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of

March 1995.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of March 1995.

ENDNOTES

1/ GCMS is accepted, scientifically, and the results it produces are

acknowledged to possess a 99.99 percent accuracy rate.

2/ Such testing also does not reveal when the cocaine was ingested or how much

was ingested. Those conclusions cannot be drawn from the test results because

the concentration of cocaine metabolite is influenced by, among other things, a

person's metabolism, how much cocaine was ingested, when it was ingested, and

how pure the cocaine was. [Tr. page 121]. It may be noted, however, that at 55

nanograms per milliliter, when tested, the concentration of cocaine metabolite

was "not a large reading," according to Dr. Hall, the Department's toxicology

expert. Indeed, absent cause to believe a person has ingested cocaine, the

cutoff, at the time in question, for any screening for the presence of cocaine

was established at 50 nanograms per milliliter.

In noting Dr. Hall's remarks, it should be observed that the transcript of

hearing at page 128, line 25, reflects the following question posed to Dr. Hall

and his response:

Q. Is 50 nanograms per milliliter reading?

A. No.

The Hearing Officer's notes reflect that the actual question posed and the

answer thereto should read as follows:

Q. Is 50 nanograms per milliliter a large reading?

A. No.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2 Adopted in paragraph 1.

3-23 Addressed in paragraphs 2 and 5, otherwise subordinate or unnecessary

detail.

24. Addressed in paragraph 3.

25-32. Addressed in paragraphs 4 and 5, otherwise subordinate or

unnecessary detail.

33-43. Addressed in paragraphs 7-14, otherwise subordinate or unnecessary

detail.

44. No relevant.

Respondent's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 17 and 18.

3. Unnecessary detail.

4-10. Addressed in paragraphs 9-13.

11. Addressed in paragraph 2, otherwise unnecessary detail.

12. Addressed in paragraph 2.

13. Addressed in paragraph 7.

14. No relevant.

15 & 17. Addressed in paragraphs 17-19.

18-26. Addressed in paragraphs 2, 4 and 5, otherwise subordinate or

unnecessary detail.

27. Addressed in paragraph 14.

28. Addressed in paragraph 13.

29. Addressed in paragraph 4.

30. Addressed in endnote 2, otherwise not relevant.

31. Addressed in paragraph 13. Moreover, the suggestion that the Florida

Highway Patrol provided respondent with "training aids" filled with cocaine,

much less that he was allowed to retain them, is rejected as inherently

improbable.

32. To the extent relevant, addressed in paragraph 13.

33. No relevant.

34-41. No relevant.

42. First sentence addressed in paragraph 4. Second sentence rejected as

not relevant or supported by competent proof.

43 & 44. Unnecessary detail.

45. Addressed in paragraphs 10 and 13.

46. Addressed in paragraph 14, otherwise not relevant.

47-60. Addressed in paragraphs 7, 16 and 20, otherwise constitutes mere

recitation of witnesses' testimony or unnecessary detail.

COPIES FURNISHED:

Karen D. Simmons, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

James C. Casey, Esquire

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108

A. Leon Lowry, II, Director

Division of Criminal Justice

Standards and Training

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

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 to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.