99-002824
Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs.
Richard D. Beach
Status: Closed
Recommended Order on Wednesday, April 25, 2001.
Recommended Order on Wednesday, April 25, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF LAW ENFORCEMENT, )
13CRIMINAL JUSTICE STANDARDS AND )
18TRAINING COMMISSION, )
21)
22Petitioner, )
24)
25vs. ) Case No. 99-2824
30)
31RICHARD D. BEACH, )
35)
36Respondent. )
38___________________________________)
39RECOMMENDED ORDER
41Pursuant to notice, a formal hearing was held in this case
52on January 25, 2001, in Daytona Beach, Florida, before the
62Division of Administrative Hearings, by its designated
69Administrative Law Judge, Diane Cleavinger.
74APPEARANCES
75For Petitioner : Gabrielle Taylor, Esquire
81Department of Law Enforcement
85Post Office Box 1489
89Tallahassee, Florida 32302-1489
92For Respondent : John A. Stanton, Esquire
99121 1/2 North Woodland Boulevard
104Suite 3
106Deland, Florida 32720
109STATEMENT OF THE ISSUE
113The issue in this proceeding is whether Respondent's
121corrections officer license is subject to suspension, revocation
129or other discipline.
132PRELIMINARY STATEMENT
134Prior to the hearing, the parties stipulated to the
143following : 1) Respondent was certified by the Criminal Justice
153Standards and Training Commission on August 19, 1991, and was
163issued Correctional Certificate No. 51168; 2) paragraph 2 of the
173Administrative Complaint; 3) the authenticity, accuracy, and
180relevancy of the positive drug tests administered on
188Respondent's urine sample submitted February 28, 1996; 4) the
197authenticity and relevancy of Respondent's independent negative
204drug test, submitted March 6, 1996; 5) the only testimony
214required as to the drug tests would be to the result and any
227interpretation thereof; 6) Joint Exhibits 1, 2, 3, and 4; 7)
238Respondent's Exhibit 1; and 8) Petitioner's Exhibits 1 and 2.
248At the hearing, the Petitioner pr esented the testimony of
258eight witnesses. The Respondent testified in his own behalf.
267After the hearing, the parties had ten days thereafter in
277which to file their proposed recommended orders. A joint motion
287was filed by the parties for an extension of time in which to
300file their proposed recommended orders. The motion was granted
309by the Administrative Law Judge, giving the parties until
318March 22, 2001. Petitioner filed its Proposed Recommended Order
327on March 22, 2001.
331FINDINGS OF FACT
3341. On Augu st 29, 1996, Petitioner filed an Administrative
344Complaint against Respondent alleging that Respondent's
350corrections officer license should be disciplined for alleged
358violations of Chapter 943, Florida Statutes. Specifically, the
366Administrative Complaint alleged that Respondent failed to
373maintain good moral character by testing positive for a
382controlled substance, marijuana, which was indicative of the
390illegal ingestion of a controlled substance listed in Chapter
399893, Florida Statutes. On September 5, 1996, Respondent filed
408an Election of Rights in which he disputed the allegations of
419the Administrative Complaint and requested an administrative
426hearing. Thereafter, the case was forwarded to the Division of
436Administrative Hearings for formal proceedings on June 23, 1999.
4452. The Respondent was employed as a correctional officer
454at Volusia Correctional Institution (VCI) in early 1991. A
463corrections officer is a special risk employee in a safety
473sensitive position. At the time of licensure Respondent passed
482his drug screen.
4853. In 1996, the month of February had 29 days.
4954. In February 1996, Warden Bruce Scherer received
503allegations of possible drug abuse by Respondent from Connie
512Beach, Respondent's (then) wife. Respondent's wife was also a
521corrections officer. Ms. Beach had been in the Warden's office
531asking for a day off to retrieve her belongings from the marital
543home due to personal problems with Respondent. Upon inquiry of
553the Warden, the Warden learned that Ms. Beach's brother Carroll
563Bradshaw had smoked marijuana with Respondent. The Warden
571called the brother by telephone. The brother confirmed he had
581smoked marijuana with Respondent several occasions. In
588response, the Warden asked Respondent to submit to a drug test.
5995. Respondent was co operative and agreed to submit to the
610drug test. Volusia Correctional Institution does not conduct
618random drug testing. At no time did Respondent question why he
629was being asked to submit to a drug test.
6386. Bolton accompanied Respondent to the Halifax Hospital
646facility to submit a urine specimen for drug testing.
6557. In testing specimens for marijuana, two tests are
664conducted; the first of these is an immunoassay screen, and the
675second is a gas chromatography/mass spectrometry (GCMS) test.
683The GCMS test is the more definitive test which specifically
693identifies THC, the major metabolite of marijuana. THC is also
703the part of marijuana which gives it its psycho-active
712properties. Cut-off levels are used in the testing process in
722order to exclude positive test results for persons who may have
733had accidental (or second-hand) exposure to marijuana.
7408. Respondent submitted his first urine sample for drug
749testing on February 28, 1996. On March 4, 1996, the results on
761the immunoassay screen came back positive for cannabinoid
769(marijuana). The sample first tested positive. It then tested
778about 300 nanograms of THC in the GCMS test.
7879. On March 19, 1996, a second test was conducted on
798Respondent's original urine sample. On March 20, 1996, the
807results of that test were received and reviewed by Dr. Hung
818Doan. The GCMS test showed 259 nanograms of THC. The result
829was confirmatory of the first as positive for marijuana.
83810. Dr. Hung Doan is a certified Medical Review Officer
848(MRO). He is certified as to his knowledge of drugs, their
859medical usage and ingestion. Dr. Doan is an expert in the
870field.
87111. Dr. Doan was the MRO who reviewed and certified the
882results of Respondent's two positive drug tests in 1996.
89112. The high levels of marijuana detec ted in the two
902positive tests of Respondent's urine sample conclusively
909establish that the results could not have been caused by
919accidental or passive inhalation of marijuana. The results did
928not rule out ingestion of marijuana since the evidence showed
938that about two cigarette sized amounts of marijuana would
947produce results similar to those found on Respondent's tests.
956However, the evidence did not show that Respondent had eaten any
967marijuana. Only multiple "accidental" exposures to, in
974conjunction with "accidental" ingestion of marijuana could
981possibly have resulted in the nanogram levels detected in
990Respondent's urine without his knowledge. Respondent did not
998produce any evidence beyond speculation to suggest that this
1007might have occurred in his case.
101313. Mr. Beach was notified of the first positive test on
1024March 4, 1996, by Mary Yochum, Dr. Doan's assistant.
1033Respondent's response to being told that he tested positive for
1043marijuana was "okay." He was concerned with the result but
1053could not go into detail over the phone because other officers
1064were present.
106614. On March 6, 1996, Respondent submitted a separate
1075urine sample for the purposes of having an independent drug
1085test. The results of that test were negative for marijuana.
1095However, this second test occurred seven days after the first
1105urine sample was given. The test only shows Respondent's level
1115of cannabinoid on the latter date had decreased or diluted
1125sufficiently to fall below the cut-off point for such tests.
1135Marijuana can clear the human body's system within days.
1144However, a chronic user of marijuana may take up to 75 days
1156before the drug clears the persons system. It depends on the
1167persons individual metabolism.
117015. Carroll Bradshaw is the ex-brother-in-law of
1177Respondent. Mr. Bradshaw is a known drug user and convicted
1187felon. He was last released from incarceration in 1998 after
1197serving time for a cocaine charge. He continues to use drugs to
1209date. Mr. Bradshaw regularly socialized, and smoked marijuana
1217with Respondent. However, he had not smoked marijuana for quite
1227a while before receiving the telephone call from the Warden.
123716. Respondent admittedly was familiar with the smell and
1246appearance of marijuana. Respondent would typically supply and
1254prepare the marijuana which he and his brother-in-law smoked
1263while socializing. Respondent kept his stash of marijuana on a
"1273paraphernalia" tray underneath his couch in his home.
1281Respondent's former mother-in-law, who was also familiar with
1289the look and smell of marijuana because of her son's problems,
1300witnessed Respondent smoking marijuana with her son and others.
1309She confirmed the testimony of her son and her daughter as to
1321Respondent's use of marijuana.
132517. Given these facts Petitioner has shown clear and
1334convincing evidence that Respondent violated Chapter 943,
1341Florida Statutes.
1343CONCLUSIONS OF LAW
134618. The Division of Administrative Hearings has
1353jurisdiction over the parties to and the subject matter of these
1364proceedings. Section 120.57(1), Florida Statutes.
136919. Section 943.13(7), Florida Statutes, provides that any
1377person employed or appointed as a correctional officer in the
1387State of Florida shall "[h ]ave good moral character as
1397determined by a background investigation under procedures
1404established by the commission."
140820. Section 943.1395(7), Florida Statutes, has authorized
1415Petitioner to revoke the certification of any officer who has
1425failed to maintain "good moral character . . . " as required by
1437Section 943.13(7), Florida Statutes, or, alternatively, to
1444impose specified, lesser penalties upon the officer.
145121. Section 943.1395, Florida Statutes (1995), establishes
1458the criteria for the revocation or discipline of an officer's
1468certificate upon a finding that the officer failed to maintain
1478good moral character:
1481(7 ) Upon a finding by the commission that a
1491certified officer has not maintained good
1497moral character, the definition of which has
1504been adopted by rule and is established as a
1513statewide standard, as required by s.
1519943.13(7), the commission may enter an order
1526imposing one or more of the following
1533penalties:
1534(a ) Revocation of certification.
1539(b ) Suspension of certification for a
1546period not to exceed 2 years.
1552(c ) Placement on a probationary status for
1560a period not to exceed 2 years, subject to
1569terms and conditions imposed by the
1575commission. Upon the violation of such
1581terms and conditions, the commission may
1587revoke certification or impose additional
1592penalties as enumerated in this subsection.
1598(d ) Successful completion by the officer of
1606any basic recruit, advanced, or career
1612development training or such retraining
1617deemed appropriate by the commission.
1622(e ) Issuance of a reprimand.
162822. In those cases where revocation or suspension of an
1638officer's certification is sought based upon the officer's
1646alleged failure to maintain "good moral character," the failure
1655must be established by clear and convincing evidence. See
1664Department of Banking and Finance, Division of Securities and
1673Investor Protection v. Osborne Stern and Company , 670 So. 2d
1683932, 935 (Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 292 (Fla.
16951987) ; McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA
17071995) ; Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA
17191994) ; Nair v. Department of Business and Professional
1727Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
173723. In Zemour, Inc. v. Division of Beverage , 347 So. 2d
17481102 (Fla. 1st DCA 1977), moral character was defined as
1758follows:
1759Moral character as used in this statute,
1766means not only the ability to distinguish
1773between right and wrong, but the character
1780to observe the difference; the observance of
1787the rules of right conduct, and conduct
1794which indicates and establishes the
1799qualities generally acceptable to the
1804populace for positions of trust and
1810confidence.
181124. In Florida Board of Bar Examiners Re: G.W.L. , 364 So.
18222d 454 (Fla. 1978), the Florida Supreme Court stated:
1831In our view a finding of lack of "good moral
1841character" should not be restricted to those
1848acts that reflect moral turpitude. A more
1855appropriate definition of the phrase
1860requires an inclusion of acts and conduct
1867which would cause a reasonable man to have
1875substantial doubts about an individual's
1880honesty, fairness, and respect for the
1886rights of others and for the laws of the
1895state and nation.
1898See also White v. Beary , 237 So. 2d 263, (Fla. 1st DCA 1970).
191125. Rule 11B-27.0011(4), Florida Administrative Code
1917(1995), provides a definition of "good moral character" for
1926purposes of implementation of disciplinary action upon Florida
1934correctional officers. The rule states in pertinent part:
1942(4 ) For the purposes of the Commission's
1950implementation of any of the penalties
1956specified in Section 943.1395(6) or (7),
1962F.S., a certified officer's failure to
1968maintain good moral character required by
1974Section 943.13(7), F.S., is defined as:
1980* * *
1983(d ) Testing positive for controlled
1989substances by conducting a urine or blood
1996test that results in a confirmed nanogram
2003level pursuant to the Rule 11B-27.00225,
2009F.A.C., or is consistent with and indicative
2016of the ingestion of a controlled substance
2023pursuant to Chapter 893, F.S. [ . . .]. Any
2033test of this kind relied upon by the
2041Commission for disciplinary action, shall
2046comply with the requirements for reliability
2052and integrity of the testing process
2058pursuant to Rule 11B-27.00225, F.A.C.
206326. Marijuana is a controlled substance under Section
2071893.03(1)(c )7, Florida Statutes.
207527. Respondent regularly smoked marijuana such that he
2083tested positive on an unannounced drug test on February 28,
20931996. By March 6, 1996, the level of marijuana in his system
2105was below the cut-off level of 50 nanograms of THC.
211528. There was no evidence of accidental or unknowing
2124ingestion of marijuana by the Respondent. Respondent thought
2132the positive tests were wrong. There was no evidence that
2142indicated the urine tests were incorrect or had been corrupted.
215229. Section 11B-27.005(6), Florida Administrative Code
2158(1998), sets out the range of disciplinary guidelines that shall
2168be imposed on officers who are determined to have violated the
"2179good moral character" requirement found in Section 943.13(7),
2187Florida Statutes, to wit:
2191(5 ) When the Commission finds that a
2199certified officer has committed an act which
2206violates Section 943.13(7), F.S., it shall
2212issue a final order imposing penalties
2218within the ranges recommended in the
2224following disciplinary guidelines:
2227* * *
2230(d ) Notwithstanding paragraph (4), below,
2236for the unlawful use by the officer of any
2245of the controlled substances enumerated in
2251section 893.13, F.S. or 11B-27.00225,
2256F.A.C., as described in 11B-27.0011(4)(d),
2261F.A.C., the action of the Commission, absent
2268clear and convincing evidence of the
2274complete rehabilitation and substantial
2278mitigating circumstances, shall be to impose
2284a penalty of revocation.
228830. There is no evidence of any rehabilitation by
2297Respondent, nor were any mitigating circumstances presented
2304under Section 11B-27.005(6), Florida Administrative Code, that
2311would justify a deviation from the penalty guidelines. Further,
2320Respondent presented no mitigating circumstances under Section
232711B-27.005(6), Florida Administrative Code, that would justify a
2335deviation from the penalty guidelines.
234031. Clear and convincing evidence established that
2347Respondent regularly used marijuana and that he lacks good moral
2357character, such that he should not be permitted to remain a
2368certified correctional officer.
237132. The penalty guideline for the offenses charged
2379pursuant to Section 11B-27.005(6), Florida Administrative Code,
2386is revocation.
2388RECOMMENDATION
2389Based upon the Findings of Fact and Conclusions of Law, it
2400is
2401RECOMMENDED:
2402That Respondent be found guilty of failing to maintain good
2412moral character, as required by Section 943.13(7), Florida
2420Statutes, and that Respondent's certification be revoked.
2427DONE AND ENTERED this 25th day of April, 2001, in
2437Tallahassee, Leon County, Florida.
2441___________________________________
2442DIANE CLEAVINGER
2444Administrative Law Judge
2447Division of Administrative Hearings
2451The DeSoto Building
24541230 Apalachee Parkway
2457Tallahassee, Florida 32399-3060
2460(850) 488- 9675 SUNCOM 278-9675
2465Fax Filing (850) 921-6847
2469www.doah.state.fl.us
2470Filed with the Clerk of the
2476Division of Administrative Hearings
2480this 25th day of April, 2001.
2486COPIES FURNISHED:
2488Gabrielle Taylor, Esquire
2491Department of Law Enforcement
2495Post Office Box 1489
2499Tallahassee, Florida 32302-1489
2502John Stanton, Esquire
2505121 1/2 North Woodland Boulevard
2510Suite 3
2512Deland, Florida 32720
2515Rod Caswell, Program Director
2519Division of Criminal Justice
2523Professionalism Services
2525Department of Law Enforcement
2529Post Office Box 1489
2533Tallahassee, Florida 32302-1489
2536Michael Ramage, General Counsel
2540Department of Law Enforcement
2544Post Office Box 1489
2548Tallahassee, Florida 32302-1489
2551James T. Moore, Commissioner
2555Department of Law Enforcement
2559Post Office Box 1489
2563Tallahassee, Florida 32302-1489
2566NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2572All parties have the right to submit written exceptions within
258215 days from the date of this Recommended Order. Any exceptions
2593to this Recommended Order should be filed with the agency that
2604will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 04/25/2001
- Proceedings: Recommended Order issued (hearing held January 25, 2001) CASE CLOSED.
-
PDF:
- Date: 04/25/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 03/22/2001
- Proceedings: Petitioner`s Proposed Recommended Order filed.
- Date: 02/22/2001
- Proceedings: Order Granting Additional Time in Which to File Proposed Recommended Orders issued.
- Date: 02/20/2001
- Proceedings: Joint Motion for Additional Time in which to File Proposed Recommended Orders (filed via facsimile).
- Date: 02/12/2001
- Proceedings: Transcript filed.
- Date: 01/25/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- Date: 01/19/2001
- Proceedings: Pretrial Stipulation (filed via facsimile).
- Date: 01/08/2001
- Proceedings: Amended Notice of Hearing issued. (hearing set for January 25, 2001; 10:00 a.m.; Daytona Beach, FL, amended as to location).
- Date: 07/28/2000
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued. (hearing set for January 25, 2001; 10:00 a.m.; Daytona Beach, FL)
- Date: 07/28/2000
- Proceedings: Motion for Continuance (filed by Respondent via facsimile).
- Date: 06/07/2000
- Proceedings: Notice of Hearing sent out. (hearing set for August 3, 2000; 10:00 a.m.; Daytona Beach, FL)
- Date: 05/23/2000
- Proceedings: (Petitioner) Response to Order filed.
- Date: 05/22/2000
- Proceedings: Response to Order (filed via facsimile).
- Date: 03/13/2000
- Proceedings: Order Granting Continuance and Placing Case in Abeyance sent out. (Parties to advise status by May 23, 2000.)
- Date: 03/10/2000
- Proceedings: Order Granting Motion for Continuance and Re-Scheduling Hearing (For Judge Signature) filed.
- Date: 03/10/2000
- Proceedings: (Respondent) Motion for Continuance filed.
- Date: 03/10/2000
- Proceedings: (Respondent) Motion for Continuance (filed via facsimile).
- Date: 03/07/2000
- Proceedings: Notice of Appearance (Taylor) filed.
- Date: 01/11/2000
- Proceedings: (K. Simmons) Notice of Appearance filed.
- Date: 10/27/1999
- Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for April 11, 2000; 10:00 a.m.; Daytona Beach, FL)
- Date: 10/25/1999
- Proceedings: (Respondent) Notice of Conflict in Scheduling filed.
- Date: 08/16/1999
- Proceedings: Notice of Hearing sent out. (hearing set for November 4, 1999; 10:00 a.m.; Daytona Beach, FL)
- Date: 08/03/1999
- Proceedings: (Petitioner) Response to Initial Order filed.
- Date: 06/29/1999
- Proceedings: Initial Order issued.
- Date: 06/24/1999
- Proceedings: Administrative Complaint filed.
- Date: 06/24/1999
- Proceedings: Election of Rights filed.
- Date: 06/24/1999
- Proceedings: Request for Assignment of Administrative Law Judge filed.