94-004174 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Jo Anne Thornton Status: Closed Recommended Order on Friday, August 18, 1995.

Summary: Respondent tested positive for cocaine at level slightly above cut-off; unlawful use not established,but test raised doubts about character that justify probable/random testing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

vs. ) CASE NO. 94-4174

)

JO ANNE THORNTON, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December

20, 1994, before J. Stephen Menton, a duly designated Hearing Officer of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

Law Offices of Slesnick & Casey

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent committed the offenses alleged

in the administrative complaint filed by Petitioner and, if so, what

disciplinary action should be taken.

PRELIMINARY STATEMENT

In an Administrative Complaint dated March 29, 1994, Petitioner charged

Respondent, a certified correctional officer, with violating 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 a certified officer in

the State of Florida have good moral character." Specifically, the

Administrative Complaint alleged that on or about August 5, 1993, Respondent,

while employed as a Correctional Officer with the Metro-Dade Corrections and

Rehabilitation Department, did "unlawfully and knowingly be [sic] 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

her body."

Respondent filed an Election of Rights form disputing the allegations set

forth in the Administrative Complaint and requesting a hearing. The case was

referred to the Division of Administrative Hearings which noticed and conducted

a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of three witnesses:

Patricia Tumani, a Medical Assistant at Mount Sinai Medical Center; Dr. Terry

Hall, Director of Toxicology Testing Service, who was accepted as an expert in

toxicology; and Commander Miriam Carames of the Metro-Dade Corrections and

Rehabilitation Department. Petitioner offered eight exhibits into evidence, all

of which were accepted. Petitioner's Exhibits 5 and 6 were compilations of

records and test results prepared regarding a urine sample provided by

Respondent on August 5, 1993. Respondent objected to the admissibility of those

reports on the grounds that they had not been produced to Respondent prior to

the hearing. Those objections were overruled. However, Respondent was granted

an opportunity to supplement the record in this case to respond to those

exhibits. No such supplemental evidence has been presented.

Respondent testified on her own behalf and also presented the testimony of

seven other witnesses: Corporal Carl Nowell of the Metro-Dade Corrections and

Rehabilitation Department; Fire fighter Lindsey Plummer of the Metro-Dade Fire

Department; Sergeant Nita Thomas of the Metro-Dade Corrections and

Rehabilitation Department; Corporal Sadie Hicks of the Metro-Dade Corrections

and Rehabilitation Department; Angela Wilcox of the Metro-Dade Housing and Urban

Development Authority; Robert Shotwell; and Bishop Robert Thornton, a Pastor

with the Pentecostal Church of God. Respondent offered twenty-two (22) exhibits

into evidence, all of which were accepted except Respondent's Exhibits 12, 18

and 19 which were either withdrawn or not offered. Petitioner's relevancy

objections to Respondent's Exhibits 8, 9 and 14-17 were overruled. Petitioner's

hearsay objections to Respondent's Exhibits 1 and 2 were noted and the documents

were accepted in accordance with Section 120.58, Florida Statutes. Respondent's

Exhibit 20 was a copy of a portion of the Collective Bargaining Agreement

between the Dade County Police Benevolent Association and Metropolitan Dade

County. Respondent's Exhibit 21 was a copy of certain rules adopted by

Petitioner. At the hearing, there was some question whether Respondent's

Exhibit 20 and 21 were copies of the actual contract provisions and rules in

place at all times pertinent to this proceeding. Petitioner was given an

opportunity subsequent to the hearing to clarify these issues and/or object to

the Exhibits. No further information or objections were submitted within the

time provided.

A transcript of the proceedings has been filed. Some corrections to the

transcript were submitted on February 13, 1995. Notwithstanding, the transcript

is still not a completely accurate record of the proceeding. In reviewing the

transcript, it is clear that there are still an inordinate number of errors.

The undersigned has relied on his own recollection and notes where the

transcript was inaccurate or indecipherable. Both parties have filed proposed

recommended orders. A ruling on each of the parties' proposed findings of fact

is contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing and the

entire record in this proceeding, the following findings of fact are made:

1. Respondent is a certified correctional officer in the State of Florida

having been issued certificate # 84145 on April 23, 1991. Respondent was

employed as a correctional officer with the Metro-Dade Corrections and

Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to

obtaining her certification as a correctional officer, Respondent worked for the

State Corrections Department for approximately seven (7) years as a clerk and

later as a technician. No evidence has been presented in this case as to any

prior disciplinary action taken against Respondent or any other job related

problems.

2. By memorandum dated July 9, 1993, Respondent was notified of her

biannual physical which was to include a drug/alcohol screening. The scheduled

date for the physical and screening was August 5, 1993 at 9:00 a.m.

3. On August 5, 1993, Respondent presented at Mount Sinai Medical Center

for her physical. She filled out and signed a Consent & Release Form and a

Specimen Collection Checklist & Chain of Custody Form. She then submitted a

urine sample for testing.

4. Respondent's urine sample was handled in accordance with a standard set

of procedures for dividing, labelling and sealing the specimen. Respondent had

an opportunity to observe the splitting of the sample and she initialed the

containers after they were sealed.

5. Respondent's urine specimens were transported by courier to Toxicology

Testing Service ("TTS") for routine screening.

6. The evidence established that TTS has adopted adequate procedures to

track the chain of custody of the urine samples it receives and protect the

integrity of the samples. There is no evidence in this case that there are any

gaps or breaks in the chain of custody for Respondent's samples, that the

integrity of the samples was ever compromised, that the testing procedures were

not followed and/or that the equipment was contaminated or not working properly.

7. After Respondent's samples were received at TTS, an immunoassay

screening test was performed on a portion of one of the samples. That screening

test was positive for the presence of cocaine at a level that was barely over

the minimum threshold level of 50 Nanograms per milliliter. 1/

8. After the initial screening test was determined to be positive,

Respondent's sample was analyzed with a confirmatory testing procedure which

utilized gas chromatography/mass spectrometry ("GCMS"). 2/

9. On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a

final report indicating that Respondent's urine had tested positive for cocaine.

Specifically, the Report stated that, upon analysis, the urine sample provided

by Respondent tested positive for the presence of the cocaine metabolite,

benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS

test results of Respondent's urine are consistent with the ingestion of cocaine

because cocaine is the only drug commonly available that, when ingested into the

human body, produces the cocaine metabolite, benzoylecgonine.

10. While the testing by TTS demonstrated the presence of cocaine

metabolite in Respondent's system, it does not establish how ingestion occurred.

Absent proof that the 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, unlawful ingestion is a reasonable

inference. However, it is also possible that the ingestion was involuntary

and/or unknowing. 3/

11. M-D CR and Respondent were notified on August 11, 1993 that the urine

sample Respondent provided on August 5, 1993 tested positive for cocaine.

Respondent has not worked as a correctional officer since that date.

12. Upon notification of the test results, Respondent vehemently denied

using drugs. She took immediate steps to try to prove her innocence.

13. Respondent contacted the Dade County Police Benevolent Association

(the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a

drug screen at the 50 Nanogram per milliliter level on a urine sample provided

by Respondent.

14. On August 12, 1993, Respondent provided a urine sample to Consulab.

Respondent claims that the results of that test did not reveal the presence of

cocaine or cocaine metabolite in her urine. 4/

15. The Consulab test result reported by Respondent is not necessarily

inconsistent with the results reported by TTS because the levels detected by TTS

were relatively small and any cocaine in Respondent's system could have been

fully metabolized during the time between the two tests.

16. On September 2, 1993, the PBA, on behalf of Respondent, requested a

retest of Respondent's August 5, 1995 urine sample. Prior to the retest,

Respondent was present and able to inspect the seal on the container from the

split sample of her August 5, 1993 urine specimen.

17. On or about September 9, 1993, Dr. Terry Hall issued a final report on

the retest of Respondent's August 5 urine sample. The retest was positive for

cocaine metabolite at a level of 67 Nanograms per milliliter. This result is

consistent with the earlier GC/MS test result.

18. On or about August 19, 1993, Respondent's employer, the M-D CR, issued

a Disciplinary Action Report to Respondent based on the TTS reports. The Report

advised Respondent that proceedings were being initiated to dismiss her from

employment.

19. On or about November 5, 1993, Director Charles A. Felton of the M-D CR

dismissed Respondent from her employment with the M-D CR.

20. By letter dated November 9, 1993, Commander Miriam Carames, Employee

Discipline Coordinator for the M-D CR advised the Florida Department of Law

Enforcement ("FDLE") of Respondent's termination.

21. On or about November 22, 1993, Respondent wrote a personal letter to

Director Felton explaining her side of the events leading to her termination and

proclaiming her innocence.

22. In accordance with the PBA's collective bargaining agreement,

Respondent requested an arbitration hearing on her dismissal.

23. The arbitration hearing on Respondent's termination was conducted on

December 21, 1993. The decision of Arbitrator Charles A. Hall of the American

Arbitration Association was rendered on February 1, 1994 and issued by letter

dated February 9, 1994. That decision found that Respondent should be returned

to full duty, without loss of pay, providing she agreed to six months of random

drug testing.

24. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino

overturned the decision of Arbitrator Charles A. Hall and ordered Respondent

dismissed from her employment with the M-D CR. That decision is currently being

appealed.

25. There is no evidence that Respondent has had any problems or

difficulties in carrying out her responsibilities as a correctional officer.

From Respondent's initial employment as a clerk with the state corrections

department through her employment as a correctional officer beginning in 1991,

Respondent has consistently been recognized as a professional, loyal and

dedicated employee. Her job evaluations have always been satisfactory or

better. Respondent received the State of Florida Department of Corrections,

Circuit 11, Employee of the Year Award for 1988. She has further demonstrated

dedication to her profession through continued training in the law enforcement

field.

26. Respondent's coworkers and supervisors testified that Respondent has a

reputation for integrity, honesty and fairness in the treatment of inmates and

coworkers. They also testified that she respects the rights of others, respects

the law and has a reputation for overall good moral character and has never been

observed to be impaired, or known to use drugs.

27. Respondent is the mother of 3 teenage girls and has been very active

in her Church. She has devoted substantial personal time and resources to

community service.

28. Respondent strongly denies taking or ingesting cocaine.

29. Respondent provided no explanations at hearing for the positive test

results. She was at a loss to provide a plausible explanation for what she

perceives to be an aberration.

30. Respondent presented the testimony of a number of witnesses who know

her well to lend credence to her denial. Those witnesses testified credibly

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 can be relied upon in a position of trust and confidence. Those

witnesses, who have known Respondent for an extended period of time commencing

well before the incident in question, believe it is the antithesis of

Respondent's character to have ingested or used cocaine.

31. In summary, the results of the urinalysis create a suspicion of

unlawful drug use. However, the test results alone do not conclusively

establish unlawful use. The results could have been due to some unknown test

failure or inadvertent ingestion. After considering the nominal amount of

cocaine metabolite disclosed by testing, the evidence presented regarding

Respondent's character, as well as her employment record, the evidence is not

clear and convincing that Respondent has unlawfully ingested cocaine. While no

conclusion can be reached, with any degree of certainty, as to the reason for

the positive test results, the test results cannot and should not be ignored.

Without a plausible explanation for the test results, those results do raise

some unanswered questions and doubts as to Respondent's character which do

provide a basis for action by the Commission under its rules.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1) and

120.60(7), Florida Statutes.

33. In this license disciplinary proceeding, Petitioner bears the burden

of proving the charges against Respondent 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).

34. In this case, Petitioner seeks to take action against Respondent's

certification as a correctional officer based on a contention that she has

failed to maintain the essential requirements for certification. Section

943.13, Florida Statutes, establishes the minimum qualifications for

certification as a correctional officer. Those qualifications include a

requirement that certified officers "have a good moral character . . . ."

Pursuant to Section 943.1395(7), Florida Statutes, an officer's certification

may be revoked, suspended or otherwise disciplined if the officer fails to

maintain a good moral character as required by Section 943.13(7), Florida

Statutes.

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

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

943.13(7), and provides as follows:

(c) The perpetration by the officer of an

act or conduct which:

* * *

4. causes substantial doubts concerning the

officer's moral fitness for continued service; or

* * *

(d) The unlawful use of any of the controlled

substances enumerated in section 893.13, F.S.

or 11B-27.00225, F.A.C. [emphasis added]

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

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

36. The evidence established that Respondent's August 5, 1993 urine sample

contained the cocaine metabolite, benzoylecogonine. Respondent's sample was

divided, screened and tested twice with consistent results. The metabolite

found in Respondent's urine is produced in the human body as a result of the

body's processing of cocaine.

37. The TTS test results on Respondent's August 5, 1993 urine sample was

the only evidence presented by the Department that Respondent committed any act

proscribed by Rule 11B-27.0011(4)(c) and/or (d). At 71 Nanograms per milliliter

on the first test and 67 Nanograms per milliliter on the retest of the split

sample, the concentration of cocaine metabolite found in Respondent's urine was

not a large reading, as conceded by Dr. Hall, the Department's toxicology

expert. Respondent's positive drug test results could certainly be a

consequence of the deliberate use of cocaine, but the results could also be due

to some undiscovered flaw in testing, the presence of some other substance that

evidenced a positive result, or unknowing or unwitting ingestion of the drug.

The minimal levels reflected in the TTS tests, the lack of a positive result on

the test conducted by Consulab a week later, the absence of any evidence of

symptoms of drug use by Respondent, her satisfactory and better job evaluations

and the evidence of her good character are sufficient to overcome the inference

that the TTS test results are due to the unlawful use of cocaine by Respondent.

5/ Thus, Petitioner has not clearly and convincingly established that the

Respondent committed a violation of Rule 11B-27.0011(4)(d), Florida

Administrative Code. Nonetheless, the TTS test results do raise some doubts

regarding Respondent's moral fitness for continued service under Rule 11B-

27.0011(4)(c)4.

38. Respondent has not provided any basis to discredit the TTS test

results nor has Respondent provided any explanation for the results of the drug

test. There was a clear chain-of-custody to insure the integrity of

Respondent's submitted sample and the seals on the specimen bottles submitted to

TTS for analysis were not broken prior to the aliquots being removed for

testing. Accordingly, while the scientific evidence standing alone does not

provide clear and convincing evidence that Respondent unlawfully ingested

cocaine, it does raise some doubts as to her moral character. Respondent has

volunteered to submit to random drug tests. Such tests should be incorporated

in any disciplinary action imposed on Respondent.

39. Petitioner has sought permanent revocation of Respondent's

certification as a correctional officer. Permanent revocation is a harsh

penalty reserved for egregious cases where rehabilitation is improbable. See

The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978). If the evidence had

clearly and convincingly established that Respondent had unlawfully used

cocaine, revocation would perhaps be warranted. Under the circumstances of this

case, however, such a penalty is not appropriate. No conclusive evidence was

presented to show Respondent unlawfully and knowingly was in actual constructive

possession of cocaine and/or how the substance was introduced into her body.

40. There is no question that the position of Correctional Officer is one

of great public trust. The public has a right to expect that those who enforce

the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So.2d

1322 (Fla. 5th DCA 1989). Respondent presented credible testimony from her

supervisors and other coworkers, her landlord, her pastor and others that she is

a person who obeys and respects the law and does not touch alcohol or drugs, and

has never evidenced any signs of drug use. There is no evidence that Respondent

has significantly interfered with the rights of others or significantly and

adversely affected the functioning of the criminal justice system or an agency

thereof. There is also no conclusive evidence that she has shown disrespect for

the laws of the state or nation. The TTS test results considered in the context

of the other evidence do not provide a basis for concluding that the public is

threatened by Respondent's continued licensure.

41. Respondent has consistently and vehemently denied the use of cocaine

since she was first notified of the alleged positive urine test on August 11,

1993. When informed of the positive test results, Respondent immediately

arranged for a test by another lab. Respondent claims the results of the

subsequent screening by Consulab based on a urine sample from Respondent on

August 12, 1993 did not reveal the presence of any illegal drugs. The results of

this subsequent test were not authenticated at the hearing in this case. In any

event, the lack of a positive result from the screening test of the August 12,

1993 sample is not necessarily inconsistent with the positive results for the

August 5, 1993 urine sample because the level of the cocaine metabolite in the

urine decreases over time.

42. Rule 11B-27.005(4)(a) - (t), Florida Administrative Code sets forth

the mitigating factors to be considered in this case. The applicable factors

are as follows: (a) Respondent did not use her official authority to

facilitate misconduct; (b) there was no showing of misconduct by Respondent

while she was performing her duties; (c) Respondent has not worked since the

test results were reported, (her case is an appeal); (d) Respondent has

presented significant evidence of her good character at the hearing; (e) there

is no evidence of any other violations by Respondent; (f) there is no evidence

of prior disciplinary action taken against Respondent by the Commission; (g)

there is no danger to the public so long as Respondent is and remains drug-free;

(h) Respondent was certified for more than two (2) years without incident prior

to the TTS test results; (i) there has been no actual damage, physical or

otherwise, caused by the alleged misconduct; (j) The penalty sought by

Petitioner, if imposed, would end Respondent's chosen career as a correctional

officer; (k) Respondent has indicated a willingness to comply with any and all

orders of the Commission; (l) revocation or suspension would dramatically

impact on Respondent's livelihood and her ability to meet her obligations as the

mother of three teenaged daughters; (m) no other penalties have been imposed on

Respondent for other misconduct; (n) there is no evidence of pecuniary benefit

or self-gain by Respondent; (o) Respondent has indicated she will comply with

the terms and conditions of any Commission-ordered probation; (p) the alleged

misconduct was not motivated by unlawful discrimination; (q) there have been no

prior Letters of Guidance; and (r) Respondent has been terminated by the

employing agency (an appeal of the termination is pending).

43. Respondent points out that different cutoff values are used by various

law enforcement agencies at the county, state and federal levels for drug

screening of urine samples and the confirmation of positive screening results.

In this regard, Respondent questions whether the levels of cocaine metabolite

found in Respondent's urine sample were in fact a legal positive reading for the

purposes of a decertification proceeding. Specifically, Respondent notes that

Rule 11B-27.00225, Florida Administrative Code, is the only provision in any of

the rules or statutes cited in the Administrative Complaint that references a

specific test level. This argument is not persuasive since the levels that

establish the presence of a controlled substance. The levels set forth in Rule

11B-27.00225(3)(b) are simply minimum sensitivity standards that labs must meet

in order for their results to be accepted by the Commission. 6/

44. Without question, Respondent's screening and confirmation test results

were well below the cutoff levels used by some other law enforcement agencies

and well below the sensitivity standards required for labs by the Criminal

Justice Standards and Training Commission. The absence of any consistent or

standard minimum levels or cutoffs for drug testing by the law enforcement

community may raise some due process and/or equal protection questions which are

beyond the scope of this proceeding.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that there are some

doubts regarding Respondent's moral fitness for continued service in accordance

with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be

placed on probation for two years subject to random drug testing.

DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon

County, Florida.

___________________________________

J. STEPHEN MENTON

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 18th day of August, 1995.

ENDNOTES

1/ The evidence indicates that many law enforcement agencies use a threshold

screening level for cocaine of 300 Nanograms per milliliter, with 150 Nanograms

per milliliter the cutoff for the confirmation test. See also, Rule 27-

00225(3)(b), Florida Administrative Code, which sets minimum sensitivity

standards for laboratory screening tests at 300 Nanograms per milliliter for

immunoassay screens and 150 Nanograms per milliliter for confirmation tests.

Thus, if Respondent's employer had used the higher cutoff levels utilized by

other law enforcement agencies, both the screening test and confirmation test on

Respondent's sample would have been reported as showing no detectable presence

of cocaine or any other illegal drug.

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

acknowledged to possess a 99.99 percent accuracy rate.

3/ The 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.

4/ A report from Consulab dated August 13, 1993 indicating that no cocaine

metabolites were detected was marked as Respondent's Exhibit 2 at the hearing in

this matter. That Report was not authenticated, but was accepted under the

provisions of Section 120.58, Florida Statutes. See Bass v. Criminal Justice

Standards Training Commission, 627 So.2d 132 (Fla. 3rd DCA 1993)

5/ The courts have recognized that a positive drug test on a urine sample does

not automatically warrant a conclusion that the person tested has unlawfully

ingested the drug in question. For example, on April 1, 1994, a three (3) judge

panel of the Circuit Court of the 11th Judicial Circuit in and for Dade County,

Florida, sitting in its appellate capacity, rendered a decision in a case which

is factually similar to Respondent's case. The Court ordered M-D CR to

reinstate an employee who had been terminated after her urine specimen tested

positive for cocaine metabolite. See Bannister v. Metropolitan Dade County,

Case No. 92-327 AP (opinion filed April 1, 1994). The court concluded that a

dismissal based solely on the results of a toxicology report, without

consideration of other factors including the employee's work record, deprived

the employee of due process.

6/ For cocaine, the Rule requires that a lab be able to test at a minimum

sensitivity of 300 Nanograms per milliliter for an immunoassay screening test.

(The results of the screening test on Respondent's August 5 sample was 64

Nanograms per milliliter). For a confirmation test, a lab must be able to test

at a minimum sensitivity of 150 Nanograms per milliliter. (The results on the

confirmation tests on Respondent's August 5 sample were 71 and 67.) Without

question, Respondent's screening and confirmation test results were well below

the cutoff levels used by some other law enforcement agencies and well below the

sensitivity standards required for labs by the Criminal Justice Standards and

Training Commission. The absence of any consistent or standard minimum levels

or cutoffs for drug testing by the law enforcement community may raise some due

process and/or equal protection questions which are beyond the scope of this

proceeding.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4174

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Adopted in substance in findings of fact 1.

2. Adopted in substance in findings of fact 1.

3. Adopted in substance in findings of fact 2.

4. Adopted in substance in findings of fact 3.

5. Addressed in findings of fact 4 and 6.

6. Adopted in pertinent part in findings of fact 4-6.

7. Adopted in pertinent part in findings of fact 4-6.

8. Adopted in pertinent part in findings of fact 4-6.

9. Adopted in pertinent part in findings of fact 4-6.

10. Adopted in pertinent part in findings of fact 4-6.

11. Adopted in pertinent part in findings of fact 4-6.

12. Adopted in pertinent part in findings of fact 4-6.

13. Adopted in pertinent part in findings of fact 4-6.

14. Adopted in pertinent part in findings of fact 4-6.

15. Adopted in pertinent part in findings of fact 4-6.

16. Adopted in substance in findings of fact 8.

17. Adopted in substance in findings of fact 8 and 9.

18. Adopted in substance in findings of fact 6.

19. Adopted in substance in findings of fact 6.

20. Adopted in substance in findings of fact 9.

21. Adopted in substance in findings of fact 9.

22. Adopted in substance in findings of fact 9.

23. Adopted in substance in findings of fact 16.

24. Addressed in findings of fact 6.

25. Adopted in substance in findings of fact 17.

26. Addressed in findings of fact 6.

27. Adopted in substance in findings of fact 17.

28. Adopted in substance in findings of fact 17.

29. Adopted in substance in findings of fact 11.

30. Adopted in substance in findings of fact 12.

31. Adopted in substance in findings of fact 18, 19 and 24.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Adopted in substance in findings of fact 1 and 2.

2. Adopted in substance in findings of fact 3.

3. Adopted in substance in findings of fact 5.

4. Adopted in substance in findings of fact 9.

5. Addressed in the preliminary statement.

6. Adopted in substance in findings of fact 16 and 17.

7. Adopted in substance in findings of fact 13.

8. Subordinate to findings of fact 14.

9. Adopted in substance in findings of fact 11.

10. Rejected as unnecessary.

11. Adopted in substance in findings of fact 18.

12. Adopted in substance in findings of fact 19.

13. Adopted in substance in findings of fact 20.

14. Adopted in substance in findings of fact 21.

15. Adopted in substance in findings of fact 23.

16. Addressed in footnote 5.

17. Adopted in substance in findings of fact 24.

18. Rejected as unnecessary.

19. Adopted in pertinent part in findings of fact 25 and 26.

20. Adopted in pertinent part in findings of fact 25 and 26.

21. Adopted in pertinent part in findings of fact 25 and 26.

22. Adopted in pertinent part in findings of fact 25 and 26.

23. Adopted in pertinent part in findings of fact 25 and 26.

24. Subordinate to findings of fact 28.

25. Adopted in substance in findings of fact 27.

26-39. Adopted in pertinent part in findings of fact 25, 26 and

30.

COPIES FURNISHED:

A. Leon Lowry, II, Director

Div. of Crim. Just. Stds & Trng.

Post Office Box 1489

Tallahassee, FL 32302

Michael Ramage

General Counsel

Fla. Dept. of Law Enforcement

Post Office Box 1489

Tallahassee, FL 32302

Karen D. Simmons, Esq.

Fla. Dept of Law Enforcement

Post Office Box 1489

Tallahassee, FL 32302

James C. Casey, Esq.

Law Offices of Slesnick & Casey

10680 NW 25th Street

Suite 202

Miami, FL 33172-2108

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 10 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.