08-003529PL Criminal Justice Standards And Training Commission vs. Vivian Valderrama Status: Closed Recommended Order on Tuesday, December 9, 2008.

Summary: Law enforcement officer tested positive for metabolites of cocaine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-3529PL

)

VIVIAN VALDERRAMA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 16, 2008, in Orlando, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jaime Roberto, Esquire

16877 East Colonial Drive

Orlando, Florida 32820

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007), 1

and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if

so, what discipline should be imposed.

PRELIMINARY STATEMENT

On March 18, 2008, Petitioner, Criminal Justice Standards

and Training Commission (Commission), filed an Administrative

Complaint alleging that Respondent, Vivian Valderrama

(Ms. Valderrama), violated Subsections 943.1395(7) and

943.13(7), Florida Statutes, and Florida Administrative Code

Rule 11B-27.0011(4)(d), by testing "positive for a controlled

substance, Cocaine, by a urine test which reflected a positive

reading consistent with and indicative of the ingestion of a

controlled substance listed in Chapter 893 F.S." Ms. Valderrama

requested an administrative hearing, and the case was received

from the Commission by the Division of Administrative Hearings

on July 21, 2008.

The final hearing was originally scheduled for

September 24, 2008. On September 8, 2008, the Commission made

an ore tenus motion for a continuance. The motion was granted,

and the final hearing was rescheduled for October 16, 2008.

On July 22, 2008, the Commission served Ms. Valderrama with

Petitioner's First Set of Request for Admissions.

Ms. Valderrama failed to respond to the request for admissions,

and an Order was entered on September 9, 2008, deeming the

request for admissions to be admitted.

At the final hearing, the Commission called Seth Howard,

D.O., as its witness. Petitioner's Exhibit 1 was admitted in

evidence. Ms. Valderrama testified in her own behalf and called

Ivonne Schelmety as her witness. Respondent's Exhibit A was

admitted in evidence.

The Transcript was filed on November 14, 2008. At the

final hearing, the parties agreed to file their proposed

recommended orders within ten days of the filing of the

Transcript. Petitioner filed its Proposed Recommended Order on

November 24, 2008. As of the date of this Recommended Order,

Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. Ms. Valderrama was certified as a law enforcement

officer in the State of Florida by the Commission on

September 29, 2004, and was issued Law Enforcement Certificate

No. 243605.

2. From September 27, 2004, to November 9, 2007,

Ms. Valderrama was employed by the Osceola County Sheriff's

Office.

3. On or about October 17, 2007, at approximately

1:00 p.m., Ms. Valderrama reported to the Osceola County

Sheriff's Office Administration Building for random drug testing

pursuant to the terms of her employment and provided a urine

sample under controlled conditions. A lab technician was the

only other person in the restroom with Ms. Valderrama during the

collection process.

4. Ms. Valderrama provided the specimen by urinating in a

sterile, previously unused specimen cup, which she subsequently

provided to a lab technician who immediately sealed the sample.

Neither the sample cup, nor the urine sample it contained, had

been tampered with, altered, or adulterated since the initial

collection of the urine sample and had remained sealed and

maintained in the chain of custody until unsealed by a qualified

laboratory personnel at Total Compliance Network, a licensed

drug testing laboratory contracted by Florida Hospital Centra

Care to conduct random employee drug screens for the Osceola

County Sheriff's Office. The laboratory analysis of

Ms. Valderrama's urine specimen was found by qualified Quest

Diagnostic's laboratory personnel and a Total Compliance Network

medical review officer to be positive for Cocaine metabolites in

a concentration of 2046 nanograms per milliliter.

5. The minimum level of detection for Cocaine is 150

nanograms per milliliter.

6. On October 27, 2007, Ms. Valderrama discussed her test

results with Dr. Seth Portnoy, the licensed medical review

officer for Total Compliance Network. Ms. Valderrama could not

provide Dr. Portnoy with any medical reason for the positive

test result and did not challenge the positive test results.

7. The procedures and methods employed in the handling and

analysis of Ms. Valderrama's urine specimen provided reliable

safeguards against contamination, a reliable chain-of-custody,

and produced, through gas chromatography/mass spectrometry, a

reliable, scientifically-accepted measure of the concentration

of Cocaine metabolite in the body. The laboratory standards and

practices observed in conjunction with the collection,

preservation, shipment, handling and analysis of

Ms. Valderrama's urine specimen, for the purpose of testing for

drugs, were in conformance with the applicable provisions of

Florida Administrative Code Chapter 59A-24 and consistent with

the requirements for reliability and integrity of the testing

process pursuant to Florida Administrative Code Rule

11B-27.00225.

8. Cocaine is rapidly metabolized by the body and can be

usually detected for two to three days after ingestion. Because

the minimum detection level for Cocaine is 150 nanograms per

milliliter and Ms. Valderrama's test results showed a level of

2046 nanograms per milliliter, it was Dr. Portnoy's expert

opinion that the tests results were indicative of ingestion of

Cocaine. Dr. Portnoy's opinion is credited.

9. Ms. Valderrama had drunk some herbal tea prior to

giving her urine sample. She feels that the ingestion of the

herbal tea could have resulted in the positive test for Cocaine.

There was no expert testimony to establish that the ingestion of

the herbal tea would result in the positive drug test.

Additionally, based on Dr. Portnoy's credible expert opinion,

the metabolite detected in Ms. Valderama's urine could only

result from Cocaine.

10. Cocaine is listed as a Schedule II controlled

substance in Chapter 893, Florida Statutes.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

12. The Commission has the burden of establishing the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). Clear and

convincing evidence has been described by the courts as follows:

[C]lear 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 explicit and

the witness must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

13. The Commission has alleged that Ms. Valderrama

violated Subsections 943.1395(7) and 943.13(7), Florida

Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b)

by testing positive for Cocaine consistent with and indicative

of the ingestion of a controlled substance listed in

Chapter 893, Florida Statutes.

14. Subsection 943.1395(7), Florida Statutes, 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.

15. Subsection 943.13(7), Florida Statutes, provides that

law enforcement officers shall "[h]ave a good moral character as

determined by a background investigation under procedures

established by the commission."

16. Florida Administrative Rule 11B-27.0011(4)(d),

provides:

(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) Testing positive for controlled

substances by 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.

17. Florida Administrative Code Rule 11B-27.00225,

provides that an analysis of a urine sample for the presence of

controlled substances or metabolites shall be consistent with

the procedures for drug testing set forth in Florida

Administrative Code Rule Chapter 59A-24. Florida Administrative

Code Rule 59A-24.006(4)(f)1., requires that drug testing

laboratories shall report a drug test result of 150 nanograms

per milliliter of benzoylecgonine as a positive test result for

the presence of Cocaine. Dr. Portnoy's credible testimony was

that Ms. Valderrama's test results of 2046 nanograms per

milliliter for the metabolite for Cocaine is indicative of

ingestion of Cocaine.

18. Subsection 893.03(2)(a)4., Florida Statutes, lists

Cocaine as a Schedule II controlled substance.

19. Ms. Valderrama has failed to maintain good moral

character as set forth in Florida Administrative Code Rule

11B-27.0011(4)(d). The Commission has established by clear and

convincing evidence that Ms. Valderamma tested positive for

Cocaine, and the test results were consistent with and

indicative of the ingestion of a controlled substance pursuant

to Chapter 893, Florida Statutes. Ms. Valderrama did not

establish that the ingestion of the Cocaine was lawful.

20. The Commission has established by clear and convincing

evidence that Ms. Valderrama has violated Subsections 943.13(7)

and 943.1395(7), and Florida Administrative Code Rule

11B-27.0011(4)(d).

21. Florida Administrative Code Rule 11B-27.005 provides

the range of penalties for disciplinary actions, and Florida

Administrative Code Rule 11B-27.005(5) provides:

(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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Vivian Valderrama violated Subsections 943.13(7) and

943.1395(7), Florida Statutes, and Florida Administrative Code

Rule 11B-27.0011(4)(d), and revoking her certification.

DONE AND ENTERED this 9th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 9th day of December, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

COPIES FURNISHED :

Michael Crews, 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

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Jaime Roberto, Esquire

16877 East Colonial Drive

Orlando, Florida 32820

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.