94-000238 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Tedd R. Williams Status: Closed Recommended Order on Friday, August 19, 1994.

Summary: Respondent's certification revoked for use of cocaine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0238

)

TEDD B. WILLIAMS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this

case on June 28, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dawn P. Whitehurst, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Mr. Tedd B. Williams, Pro Se

466 East Evanston Circle

Fort Lauderdale, Florida 33312

STATEMENT OF THE ISSUES

Whether Respondent is guilty of violating Sections 943.13(7), and

943.1395(6), (7) Florida Statutes, and Rule 11B-27.0011(4)(d), Florida

Administrative Code, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 10, 1993, Petitioner, Criminal Justice Standards and Training

Commission (Commission), filed an Amended Administrative Complaint against

Respondent, Tedd B. Williams (Williams), alleging that Williams violated

Sections 943.1395(6),(7) and 943.13(7), Florida Statutes, and Rule 11B-

27.0011(4)(d), Florida Administrative Code. On January 6, 1994, Williams filed

a request for an administrative hearing. The case was referred to the Division

of Administrative Hearings on January 12, 1994, for assignment to a Hearing

Officer. The case was originally assigned to Hearing Officer Michael M. Parrish

and was transferred to Hearing Officer Susan B. Kirkland for final hearing.

At the final hearing, the Commission moved that the Amended Administrative

Complaint be further amended to accurately reflect Williams' name as Tedd B.

Williams rather than Tedd R. Williams. Without objection the motion was

granted. The Commission also requested that it be allowed to take the testimony

of Dr. Howard Taylor via telephone. Respondent had no objection and the

testimony of Dr. Taylor was taken via telephone.

At final hearing, the Commission presented the following witnesses: Diane

Argenti, Sergeant William Robshaw, Dr. Howard Taylor, Dr. James Byrnes, Sergeant

Larry Rogers, and Allen Greenspan. Petitioner's Exhibits 1-4 were admitted into

evidence. Respondent testified on his own behalf and presented no exhibits.

The parties agreed to file proposed recommended orders within 15 days from

the date of the filing of the transcript. The transcript was filed on July 28,

1994. The Commission filed its Proposed Recommended Order on August 9, 1994.

Respondent did not file a Proposed Recommended Order. The Petitioner's proposed

findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Tedd B. Williams (Williams), was certified by Petitioner,

Criminal Justice Standards and Training Commission (Commission), on March 13,

1985, and was issued Corrections Certificate Number 03-85-502-01.

2. Williams' social security number is 128-50-2456.

3. In September, 1992, Williams was employed by the Broward County

Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of

the Sheriff's Office is assigned an employee identification number. Williams'

employee identification number was 3973.

4. The Sheriff's Office had implemented a drug testing policy by which a

computer would randomly select employees to be tested for drug use. The

employees selected would be given notice and would be required to give a urine

sample, which would be analyzed by a laboratory. The Sheriff's Office

contracted with Sunshine Medical Center (Sunshine) for the collection and

testing of the urine samples.

5. Williams was selected by the computer for drug testing. On September

30, 1992, Williams gave a urine sample for testing. The specimen identification

number assigned to Williams' sample was 1052539-4.

6. Williams' specimen number, employee number, and social security number

were placed on a collector's form which accompanied the specimen to the

laboratory.

7. Williams certified on the collector's form that the label on the bottle

in which the specimen was placed bore the identification number of 1052539-4 and

the bottle was sealed in his presence with tamper evident tape.

8. Williams indicated on the collector's form that he had taken the

following medications within the previous 30 days: Tylenol, Penicillin,

vitamins, amino acids and yohimbe bark.

9. Sunshine sent Williams' specimen to National Health Laboratories

(National) for forensic testing. The specimen bottle arrived on October 2,

1992, at National in a sealed bag with the bottle seal intact and bearing

specimen identification number 1052539-4.

10. Williams' specimen was tested at National. The test results were

positive for cocaine metabolite. The gas chromatography/mass spectrometry

(GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML).

Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze

Williams' specimen is 100 percent accurate for the detection of cocaine

metabolite. National conducted a second analysis which confirmed the positive

result.

11. National reported the test results to Sunshine. Dr. James Byrnes, who

was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to

discuss the positive test results and to ascertain whether any medications

Williams had taken prior to the testing could have caused the test results to be

positive. Williams advised Dr. Byrnes that he did take some products related to

his weight lifting program and he showed the products to the doctor. Based on a

review of the labels on the bottles, Dr. Byrnes could not document that the use

of the products would cause the test results to be positive for cocaine

metabolite and concluded that there was no reason for the positive drug test for

cocaine, other than Williams' own use of cocaine.

12. On October 15, 1992, Sergeant William Robshaw, who was assigned to

Internal Affairs at the Sheriff's Office, met with Williams, who provided

Sergeant Robshaw with samples of supplements and vitamins that he had been

taking. Sergeant Robshaw received the following from Williams: a bottle of

"Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng

Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a

bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills.

13. The samples were submitted to the Sheriff's Office crime laboratory,

where they were analyzed by Allen Greenspan. The samples tested negative for

the presence of cocaine.

14. Mr. Greenspan prepared a report of his analysis, which was forwarded

to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at

National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples

would not produce a positive test result for cocaine metabolite. Dr. Taylor,

who was qualified as an expert in forensic toxicologist, opined that only the

ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML

of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine

will remain in the body two to three days after ingestion.

15. Williams did not contest the presence of cocaine in his body, only

whether he willfully ingested cocaine. Williams offered no plausible

explanation of how he came to ingest cocaine, other than willfully.

Accordingly, I find that Williams did willfully ingest cocaine within at least

two to three days prior to giving a urine sample for testing on September 30,

1992.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

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

Florida Statutes.

17. The Commission has the burden of establishing the essential elements

of the Amended Administrative Complaint by clear and convincing evidence.

Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. In the Amended Administrative Complaint, the Commission alleged that

Williams failed to maintain the qualifications established in Section 943.13(7),

Florida Statutes, which requires that a correctional officer in the State of

Florida have good moral character. Additionally, the Commission alleged

Williams violated Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-

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

19. Section 943.13(7), Florida Statutes provides:

On or after October 1, 1984, any person

employed or appointed as a full-time, part-

time, or auxiliary law enforcement officer

or correctional officer . . . shall:

* * * *

(7) Have a good moral character as determined

by a background investigation under procedures

established by the commission.

20. Rule 11B-27.0011(4)(d), Florida Administrative Code (1992), provides:

(4) For the purpose of the Commission's imple-

mentation of any of the penalties enumerated in

subsection 943.1395(6) or (7), F.S., a certified

officer's failure to maintain a good moral

character, as required by subsection 943.13(7),

F.S., is defined as:

* * * *

(d) The unlawful use of any of the controlled

substances enumerated in 11B-27.00225 F.A.C.

21. Cocaine and cocaine metabolite are among the substances enumerated in

Rule 11B-27.00225, Florida Administrative Code.

22. Petitioner did establish by clear and convincing evidence that

Williams did unlawfully use cocaine and as such failed to maintain good moral

character as required by section 943.13(7), Florida Statutes and as defined in

Rule 11B-27.00225, Florida Administrative Code.

23. Section 943.1395(6), Florida Statutes, sets forth the penalties for an

officer who is not in compliance with Section 943.13(4), Florida Statutes, or

who intentionally files a false affidavit established in Sections 943.13(8),

943.133(2), or 943.139(2). As a statute setting forth the penalties for

violations of other statutes, the statute is not a statute which Williams

could violate. Additionally, Section 943.1395(6) is not pertinent to this

proceeding because Williams was not charged with a violation of any of the

statutes set forth in Section 943.1395(6).

24. Section 943.1395(7), Florida Statutes, sets forth the penalties for a

violation of Section 943.13(7), Florida Statutes. As such, Section 943.1395(7)

is not a statute which Williams could violate except as to the violation of the

terms and conditions of probationary status, which is not at issue in this

proceeding.

25. Section 943.1395(7), Florida Statutes provides:

(7) Upon a finding by the Comission 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.

26. Having considered the facts of the instant case in light of the

disciplinary guidelines set forth in Rule 11B-2.005, Florida Administrative

Code, and given the serious nature of the offense and the lack of any

compelling, mitigating circumstances, I conclude that revocation of

certification is a justified penalty.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice and Standards and Training Commission

enter a final order (1) finding Tedd B. Williams guilty of having failed to

maintain "good moral character," in violation of Section 943.13(7), Florida

Statutes, by his unlawful use of cocaine and (2) revoking his certification

based on such a finding.

DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon

County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 19th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238

To comply with the requirements of Section 120.59(2), Florida Statutes

(1993), the following rulings are made on the Petitioner's proposed findings of

fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraphs 2-25: Accepted in substance.

3. Paragraph 26: Rejected as subordinate to the facts

actually found.

COPIES FURNISHED:

Dawn P. Whitehurst, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Mr. Tedd B. Williams

466 East Evanston Circle

Fort Lauderdale, Florida 33312

A. Leon Lowry, II, Director

Division of Criminal Justice

Standards and Training

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage

General Counsel

Division of Criminal Justice

Standards and Training

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.