00-001286 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Louis D. Scarsella Status: Closed Recommended Order on Friday, January 12, 2001.

Summary: The commission presented sufficient evidence to show that Respondent tested positive for canabinoids on June 4 and 10, 1999. Respondent failed to present evidence of complete rehabilitation; therefore, the penalty is revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-1286

)

LOUIS D. SCARSELLA, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a

formal hearing in this matter on September 12-13, 2000, in

Fort Myers, Florida.

APPEARANCES

For Petitioner: Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Robert B. Burandt, Esquire

1714 Cape Coral Parkway, East

Cape Coral, Florida 33904-9620

STATEMENT OF THE ISSUE

Should Respondent's Law Enforcement Certificate be

revoked, suspended, or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 30, 1999,

and filed with the Division of Administrative Hearings

(Division) on March 28, 2000, the Criminal Justice Standards

and Training Commission (Commission) is attempting to revoke,

suspend, or otherwise discipline Respondent's Law Enforcement

Certificate.

As grounds therefor, the Commission alleges that

Respondent violated Section 943.1395(7), Florida Statutes, and

Rule 11B-27.0001(4)(d), Florida Administrative Code, in that

Respondent, on or about June 4, 1999, tested positive for a

controlled substance, cannabis (marijuana), by urine test

which reflected a positive reading consistent with or

indicative of the ingestion of a controlled substance listed

in Chapter 893, Florida Statutes. By an Election of Rights

dated February 21, 2000, Respondent denied the allegations

contained in the Administrative Complaint and requested a

formal hearing. By a Request for Assignment of Administrative

Law Judge dated March 28, 2000, the Commission referred the

matter to the Division for the assignment of an Administrative

Law Judge and for the conduct of a formal hearing.

The Commission presented the testimony of Steven P.

Furderer, Todd Everly, Bethany Iler, Stephen I. Merlin, M.D.,

Elizabeth Dulato-Burza, n/k/a Elizabeth Brunelli, Abel Natali,

M.D., and Charlene Golden. The Commission's Exhibits numbered

1 and 3 were admitted in evidence without objection. The

Commission's Exhibits numbered 2 and 4 were initially rejected

since they pertained to matters not alleged in the

Administrative Complaint. However, after reviewing the

proffer of, and the testimony surrounding, those exhibits, it

became clear that Exhibits 2 and 4 were only being offered to

bolster the allegations contained in the Administrative

Complaint relating to Exhibits 1 and 3. Therefore, the

Commission's Exhibits 2 and 4 were admitted in evidence.

Respondent testified on his own behalf and presented the

testimony of Steven Furderer, David Scarsella, John Fouchia,

John Michael Anderson, David Nye, Caroline Scarsella, William

Columbia, Randy Horner, and Kenneth Lieberman, Ph.D.

Respondent's Exhibits 1 through 4 were admitted in evidence.

Initially, Respondent's Exhibit 5 was rejected. However,

Respondent proffered Exhibit 5. After careful review of the

proffer of Exhibit 5, it is clear that the exhibit is relevant

to the reason Respondent submitted the urine specimen on June

4, 1999, and the urine specimen on June 10, 1999. Therefore,

Respondent's Exhibit 23 is admitted in evidence.

A Transcript of this proceeding was filed with the

Division on November 21, 2000. Respondent's Motion For

Extension of Time to file proposed recommended orders was

unopposed and the parties were given until 5:00 p.m. on

December 26, 2000, to file their proposed recommended orders.

The extension of time was granted with the understanding that

any time constraint imposed under Rule 28-106.216(1), Florida

Administrative Code, was waived in accordance with Rule 28-

106.216(2), Florida Administrative Code. The parties timely

filed their Proposed Recommended under the extended time

frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

1. The Commission is the agency of the State of Florida

charged with the responsibility for the certification and de-

certification of law enforcement officers.

2. At all times pertinent to this proceeding, Respondent

was a certified law enforcement officer having been certified

by the Commission on January 24, 1992, and issued law

enforcement certificate number 20445.

4. At all times pertinent to this proceeding, Respondent

was employed by the Cape Coral, Florida Police Department

(CCPD).

5. As a certified law enforcement officer, Respondent is

sworn to uphold the laws of the State of Florida, in both an

on-duty and off-duty capacity, and must follow a personal code

of conduct which precludes the use of marijuana in an on-duty

or off-duty capacity. Respondent was aware at the time he was

hired by the CCPD that law enforcement officers had to abide

by the Drug Free Workplace standards.

6. As part of the biannual physical examination required

by the CCPD, the Respondent, on June 4, 1999, presented to the

Lee Memorial Health Systems, a/k/a Lee Convenient Care, a

Collection Site as defined in Rule 59A-24.003(4), Florida

Administrative Code, for the purpose of giving a urine

specimen for drug testing.

7. Strict procedures were followed in the collection of

Respondent's urine specimen taken on June 4, 1999, in order

that the integrity and chain of custody of the specimen were

maintained. Respondent's urine specimen taken on June 4,

1999, was collected, identified, and forwarded to Diagnostic

Services Inc., d/b/a DSI Laboratories (DSI) in accordance with

the procedure set forth in Section 112.0455(8), Florida

Statutes, and Rule 59A-24.005, Florida Administrative Code,

for the purpose of testing for drugs.

8. DSI is a Forensic Toxicology Laboratory as that term

is defined in Rule 59A-24.003(8), Florida Administrative Code,

and is a certified, state and federally-licensed forensic

toxicology laboratory which conducted the tests of

Respondent's urine specimen taken on June 4, 1999.

Respondent's urine specimen given on June 4, 1999, was given

Specimen ID No. 11A, 292409 and Laboratory Accession No. 99-

157-0716.

9. When urine is tested for the presence of marijuana, a

positive result is indicated when the nanogram level of

cannabinoids, or THC, reaches a level of 50 or higher on the

initial screening, or immunoassay test. Rule 59A-

24.006(4)(e)1, Florida Administrative Code. If the

immunoassay test is positive, the sample is subjected to a

much more specific test, the Gas Chromatography/Mass

Spectrometry (GCMS) test. A result of a nanogram level of 15

or higher is a positive test result for the presence of

cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida

Administrative Code. The establishment of the cut-off levels

on the immunoassay or GCMS tests eliminates any possibility of

positive test results due to accidental ingestion.

10. Respondent's urine specimen of June 4, 1999, was

first subjected to the immunoassay test which reported a level

of 169 nanograms of THC in Respondent's urine. Respondent's

urine sample was then subjected to the GCMS test which

reported a result of the presence of 37 nanograms of THC in

Respondent's system.

11. Elizabeth Burza, n/k/a Elizabeth Brunelli, the

certifying scientist on the two tests conducted on

Respondent's urine specimen of June 4, 1999, reviewed and

approved the integrity of the chain of custody, that the

machines used to test the specimen were operating correctly,

and the accuracy of the positive result for cannabinoids in

Respondent's system.

12. On June 8, 1999, Ms. Brunelli certified that urine

specimen number 11A-292409 tested positive for presence of

cannabinoids. The urine specimen number and laboratory

accession number were that of Respondent's urine specimen

submitted on June 4, 1999.

13. Abel Natali, M.D. was the Medical Review Officer of

the tests conducted on the urine specimen number 11A-292409

submitted by Respondent on June 4, 1999. On June 9, 1999, Dr.

Natali reviewed and approved the testing procedures and

results thereof. Dr. Natali confirmed the conclusions of Ms.

Brunelli that the test results as to specimen number 11A,

292409 did not reflect abnormality, and accurately reflected a

positive reading of 37 nanograms of THC, cannabinoids, in

Respondent's system.

14. On June 10, 1999, Dr. Natali telephoned Respondent

to confirm that Respondent had tested positive for

cannabinoids. Dr. Natali inquired of Respondent as to any

valid reason for the positive test for marijuana, such as:

(1) was there a possibility that medical research had exposed

Respondent to marijuana and; (2) had Respondent ingested any

prescription or over-the-counter drugs which may have

contained marijuana. The purpose of these questions was to

allow the tested person to admit or deny use, and to allow the

Medical Review Officer to follow up on valid explanations for

exposure controlled substances.

15. Respondent told Dr. Natali that he had been exposed

to marijuana at a party where people were smoking marijuana

and that he had smoked marijuana. However, during his

testimony at the hearing, Respondent could not recall making

that statement to Dr. Natali, and denied smoking marijuana at

the party.

16. Dr. Natali advised Respondent that he would be

reporting the positive test results for marijuana to his

supervisor, and that Respondent could request a retest.

Respondent did not request a retest.

17. On June 10, 1999, the positive test results for

marijuana were reported to Lieutenant Everly, CCPD.

Subsequently, on June 10, 1999, Lieutenant Everly and

Lieutenant Furderer requested that Respondent submit another

urine sample for testing. Although Respondent was not told

that failure to submit another urine specimen would result in

his termination from CCPD, he was advised that failure to

submit another urine specimen could possibly result in his

termination from the CCPD. Respondent agreed to the submission

of a second urine specimen, and on June 10, 1999, Lieutenant

Furderer transported Respondent to DSI Laboratories where

Respondent submitted another urine specimen for testing.

18. The collection and testing of the second urine

specimen submitted by Respondent on June 10, 1999, and

identified as 11A, 303243, was handled in accordance with the

rules and statutes governing the collection and testing of

urine specimens for the purpose of determining the presence of

illegal drugs in the person's system.

19. Ms. Brunelli, certifying scientist, certified the

results of the two tests conducted on Respondent's second

urine specimen identified as number 11A,303243. Ms. Brunelli

certified specimen 11A, 303243 as being positive for the

presence of cannabinoids on the immunoassay test at a level of

209 nanograms, and on the GCMS test at a level of 56

nanograms.

20. Stephen I. Merlin, M.D., Medical Review Officer,

reviewed and approved the collection and testing procedures

used with Respondent's urine specimen submitted on June 10,

1999, and identified as 11A, 303243, and the positive results

of the tests (a nanogram level of 209 for the immunoassay test

and a nanogram level of 56 for the GCMS test) as reviewed and

approved by Ms. Brunelli. Dr. Merlin informed Respondent that

he had tested positive for cannabinoids, and inquired as to

whether Respondent had taken any prescription drugs containing

marinol, or if Respondent had been exposed to marijuana.

Respondent replied in the negative. Respondent did not

request a retest.

21. Respondent's only explanation for the presence of

cannabinoids in his system was the possible passive inhalation

of marijuana smoke at a party in a motel room on the weekend

prior to giving the first urine specimen on June 4, 1999.

22. While passive inhalation of marijuana smoke under

controlled conditions may possibly result in negigible amounts

of cannabinoids being detected in a person's urine, Respondent

failed to show that the conditions in that motel room were

such that it would have resulted in passive inhalation of

marijuana smoke by Respondent to the degree that his urine

would have reflected, upon testing, even negigible amounts of

cannabinoids, let alone the levels found in Respondent's

urine.

23. Respondent offered no evidence to demonstrate that

he may have accidentally ingested marijuana during this period

of time.

24. Respondent's June 4, 1990, and June 10, 1999, urine

specimens were disposed of on July 5, 2000. Prior to their

disposal, Respondent did not contact anyone and request that

the specimens be retain for retesting.

25. Subsequent to being notified of the results of the

second urine test, the CCPD terminated Respondent. However,

after the CCPD held an informal hearing, CCPD reinstated

Respondent. At the time of this hearing, Respondent was still

working with the CCPD, apparently in an administrative

capacity.

26. Respondent presented no evidence of complete

rehabilitation or substantial mitigating circumstances.

27. The nanogram levels for cannabinoids reported for

the initial and confirmation tests for the urine specimen

given by Respondent on June 4, 1999, and the nanogram levels

for cannabinoids reported for the initial and confirmation

tests for the urine specimen given by Respondent on June 9,

1999, exceeded the nanogram levels for cannabinoids set out in

Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for

positive testing.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

29. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the

Commission must establish facts upon which its allegations are

based by clear and convincing evidence. Department of Banking

and Finance, Division of Securities and Investor Protection

vs. Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

30. Section 943.1395(7), Florida Statutes, provides in

pertinent part as follows:

(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,. . . 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 section.

(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.

31. Rule 11B-27.011(4)(d), Florida

Administrative Code, provides as follows:

(4) For the purposes of the 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 943.12(7), F.S., is defined as:

* * *

(d) Testing positive for controlled

substances by conducting a urine or blood

test that results in a confirmed nanogram

level pursuant to Rule 11B-27.00225,

F.A.C., or is consistent with and

indicative of the ingestion of a controlled

substance pursuant to Chapter 893, F.S.,

and not having a specific nanogram level

listed in Rule 11B-27.00225, F.A.C., shall

be an affirmative defense to this provision

to establish that any such ingestion was

lawful. Any test of this kind relied upon

by the Commission for disciplinary action,

shall comply with the requirements for

reliability and integrity of the testing

process pursuant to Rule 11B-27.00225,

F.A.C.

32. Rule 11B-27.005(4)(5)(d),Florida

Administrative Code, provides in pertinent part as

follows:

(4) The Commission sets forth in

paragraphs (5) (a)--(d), of this rule

section, a range of disciplinary guidelines

from which disciplinary penalties shall be

imposed upon certified officers who have

been found by the commission to have

violated Section 943.13(7), F.S. . . .

(5) When the Commission finds that a

certified officer has committed an act that

violates Section 943.13(7), F.S., it shall

issue a final order imposing penalties

within the ranges recommended in the

following disciplinary guidelines:

* * *

(d) Notwithstanding paragraph (4) of this

rule section, 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 Rule 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

of revocation . (Emphasis furnished.)

33. The Commission has met its burden to show that

Respondent tested positive for cannabinoids on June 4, 1999,

and on June 10, 1999, and thereby failed to maintain "good

moral character" as defined by Rule 11B-27.011(4)(d), Florida

Administrative Code, and required to be maintained by

certified law enforcement officers by Section 943.1395(7),

Florida Statutes. Since the Respondent failed to present

clear and convincing evidence of complete rehabilitation and

substantial mitigating circumstances, the Commission is left

with no alternative but to revoke Respondent's law

enforcement certification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is recommended that the Commission enter a final

order revoking Respondent's Law Enforcement Certificate number

20445.

DONE AND ENTERED this 12th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2001.

COPIES FURNISHED:

Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Robert B. Burandt, Esquire

1714 Cape Coral Parkway, East

Cape Coral, Florida 33904-9620

A. Leon Lowry, II, Program Director

Division of Criminal Justice

Professional 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.