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.

Summary: Respondent showed Petitioner failed to maintain good moral character by failing drug screen by testing positive for marijuana and regularly smoking marijuana.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 99-2824

)

RICHARD D. BEACH, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on January 25, 2001, in Daytona Beach, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner : Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent : John A. Stanton, Esquire

121 1/2 North Woodland Boulevard

Suite 3

Deland, Florida 32720

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent's

corrections officer license is subject to suspension, revocation

or other discipline.

PRELIMINARY STATEMENT

Prior to the hearing, the parties stipulated to the

following : 1) Respondent was certified by the Criminal Justice

Standards and Training Commission on August 19, 1991, and was

issued Correctional Certificate No. 51168; 2) paragraph 2 of the

Administrative Complaint; 3) the authenticity, accuracy, and

relevancy of the positive drug tests administered on

Respondent's urine sample submitted February 28, 1996; 4) the

authenticity and relevancy of Respondent's independent negative

drug test, submitted March 6, 1996; 5) the only testimony

required as to the drug tests would be to the result and any

interpretation thereof; 6) Joint Exhibits 1, 2, 3, and 4; 7)

Respondent's Exhibit 1; and 8) Petitioner's Exhibits 1 and 2.

At the hearing, the Petitioner pr esented the testimony of

eight witnesses. The Respondent testified in his own behalf.

After the hearing, the parties had ten days thereafter in

which to file their proposed recommended orders. A joint motion

was filed by the parties for an extension of time in which to

file their proposed recommended orders. The motion was granted

by the Administrative Law Judge, giving the parties until

March 22, 2001. Petitioner filed its Proposed Recommended Order

on March 22, 2001.

FINDINGS OF FACT

1. On Augu st 29, 1996, Petitioner filed an Administrative

Complaint against Respondent alleging that Respondent's

corrections officer license should be disciplined for alleged

violations of Chapter 943, Florida Statutes. Specifically, the

Administrative Complaint alleged that Respondent failed to

maintain good moral character by testing positive for a

controlled substance, marijuana, which was indicative of the

illegal ingestion of a controlled substance listed in Chapter

893, Florida Statutes. On September 5, 1996, Respondent filed

an Election of Rights in which he disputed the allegations of

the Administrative Complaint and requested an administrative

hearing. Thereafter, the case was forwarded to the Division of

Administrative Hearings for formal proceedings on June 23, 1999.

2. The Respondent was employed as a correctional officer

at Volusia Correctional Institution (VCI) in early 1991. A

corrections officer is a special risk employee in a safety

sensitive position. At the time of licensure Respondent passed

his drug screen.

3. In 1996, the month of February had 29 days.

4. In February 1996, Warden Bruce Scherer received

allegations of possible drug abuse by Respondent from Connie

Beach, Respondent's (then) wife. Respondent's wife was also a

corrections officer. Ms. Beach had been in the Warden's office

asking for a day off to retrieve her belongings from the marital

home due to personal problems with Respondent. Upon inquiry of

the Warden, the Warden learned that Ms. Beach's brother Carroll

Bradshaw had smoked marijuana with Respondent. The Warden

called the brother by telephone. The brother confirmed he had

smoked marijuana with Respondent several occasions. In

response, the Warden asked Respondent to submit to a drug test.

5. Respondent was co operative and agreed to submit to the

drug test. Volusia Correctional Institution does not conduct

random drug testing. At no time did Respondent question why he

was being asked to submit to a drug test.

6. Bolton accompanied Respondent to the Halifax Hospital

facility to submit a urine specimen for drug testing.

7. In testing specimens for marijuana, two tests are

conducted; the first of these is an immunoassay screen, and the

second is a gas chromatography/mass spectrometry (GCMS) test.

The GCMS test is the more definitive test which specifically

identifies THC, the major metabolite of marijuana. THC is also

the part of marijuana which gives it its psycho-active

properties. Cut-off levels are used in the testing process in

order to exclude positive test results for persons who may have

had accidental (or second-hand) exposure to marijuana.

8. Respondent submitted his first urine sample for drug

testing on February 28, 1996. On March 4, 1996, the results on

the immunoassay screen came back positive for cannabinoid

(marijuana). The sample first tested positive. It then tested

about 300 nanograms of THC in the GCMS test.

9. On March 19, 1996, a second test was conducted on

Respondent's original urine sample. On March 20, 1996, the

results of that test were received and reviewed by Dr. Hung

Doan. The GCMS test showed 259 nanograms of THC. The result

was confirmatory of the first as positive for marijuana.

10. Dr. Hung Doan is a certified Medical Review Officer

(MRO). He is certified as to his knowledge of drugs, their

medical usage and ingestion. Dr. Doan is an expert in the

field.

11. Dr. Doan was the MRO who reviewed and certified the

results of Respondent's two positive drug tests in 1996.

12. The high levels of marijuana detec ted in the two

positive tests of Respondent's urine sample conclusively

establish that the results could not have been caused by

accidental or passive inhalation of marijuana. The results did

not rule out ingestion of marijuana since the evidence showed

that about two cigarette sized amounts of marijuana would

produce results similar to those found on Respondent's tests.

However, the evidence did not show that Respondent had eaten any

marijuana. Only multiple "accidental" exposures to, in

conjunction with "accidental" ingestion of marijuana could

possibly have resulted in the nanogram levels detected in

Respondent's urine without his knowledge. Respondent did not

produce any evidence beyond speculation to suggest that this

might have occurred in his case.

13. Mr. Beach was notified of the first positive test on

March 4, 1996, by Mary Yochum, Dr. Doan's assistant.

Respondent's response to being told that he tested positive for

marijuana was "okay." He was concerned with the result but

could not go into detail over the phone because other officers

were present.

14. On March 6, 1996, Respondent submitted a separate

urine sample for the purposes of having an independent drug

test. The results of that test were negative for marijuana.

However, this second test occurred seven days after the first

urine sample was given. The test only shows Respondent's level

of cannabinoid on the latter date had decreased or diluted

sufficiently to fall below the cut-off point for such tests.

Marijuana can clear the human body's system within days.

However, a chronic user of marijuana may take up to 75 days

before the drug clears the persons system. It depends on the

persons individual metabolism.

15. Carroll Bradshaw is the ex-brother-in-law of

Respondent. Mr. Bradshaw is a known drug user and convicted

felon. He was last released from incarceration in 1998 after

serving time for a cocaine charge. He continues to use drugs to

date. Mr. Bradshaw regularly socialized, and smoked marijuana

with Respondent. However, he had not smoked marijuana for quite

a while before receiving the telephone call from the Warden.

16. Respondent admittedly was familiar with the smell and

appearance of marijuana. Respondent would typically supply and

prepare the marijuana which he and his brother-in-law smoked

while socializing. Respondent kept his stash of marijuana on a

"paraphernalia" tray underneath his couch in his home.

Respondent's former mother-in-law, who was also familiar with

the look and smell of marijuana because of her son's problems,

witnessed Respondent smoking marijuana with her son and others.

She confirmed the testimony of her son and her daughter as to

Respondent's use of marijuana.

17. Given these facts Petitioner has shown clear and

convincing evidence that Respondent violated Chapter 943,

Florida Statutes.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.57(1), Florida Statutes.

19. Section 943.13(7), Florida Statutes, provides that any

person employed or appointed as a correctional officer in the

State of Florida shall "[h ]ave good moral character as

determined by a background investigation under procedures

established by the commission."

20. Section 943.1395(7), Florida Statutes, has authorized

Petitioner to revoke the certification of any officer who has

failed to maintain "good moral character . . . " as required by

Section 943.13(7), Florida Statutes, or, alternatively, to

impose specified, lesser penalties upon the officer.

21. Section 943.1395, Florida Statutes (1995), establishes

the criteria for the revocation or discipline of an officer's

certificate upon a finding that the officer failed to maintain

good moral character:

(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.

22. In those cases where revocation or suspension of an

officer's certification is sought based upon the officer's

alleged failure to maintain "good moral character," the failure

must be established by clear and convincing evidence. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987) ; McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

1995) ; Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

1994) ; Nair v. Department of Business and Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

23. In Zemour, Inc. v. Division of Beverage , 347 So. 2d

1102 (Fla. 1st DCA 1977), moral character was defined as

follows:

Moral character as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confidence.

24. In Florida Board of Bar Examiners Re: G.W.L. , 364 So.

2d 454 (Fla. 1978), the Florida Supreme Court stated:

In our view a finding of lack of "good moral

character" should not be restricted to those

acts that reflect moral turpitude. A more

appropriate definition of the phrase

requires an inclusion of acts and conduct

which would cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and respect for the

rights of others and for the laws of the

state and nation.

See also White v. Beary , 237 So. 2d 263, (Fla. 1st DCA 1970).

25. Rule 11B-27.0011(4), Florida Administrative Code

(1995), provides a definition of "good moral character" for

purposes of implementation of disciplinary action upon Florida

correctional officers. The rule states in pertinent part:

(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 943.13(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 the 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. [ . . .]. 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.

26. Marijuana is a controlled substance under Section

893.03(1)(c )7, Florida Statutes.

27. Respondent regularly smoked marijuana such that he

tested positive on an unannounced drug test on February 28,

1996. By March 6, 1996, the level of marijuana in his system

was below the cut-off level of 50 nanograms of THC.

28. There was no evidence of accidental or unknowing

ingestion of marijuana by the Respondent. Respondent thought

the positive tests were wrong. There was no evidence that

indicated the urine tests were incorrect or had been corrupted.

29. Section 11B-27.005(6), Florida Administrative Code

(1998), sets out the range of disciplinary guidelines that shall

be imposed on officers who are determined to have violated the

"good moral character" requirement found in Section 943.13(7),

Florida Statutes, to wit:

(5 ) When the Commission finds that a

certified officer has committed an act which

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), below,

for the unlawful use by the officer of any

of the controlled substances enumerated in

section 893.13, F.S. or 11B-27.00225,

F.A.C., as described in 11B-27.0011(4)(d),

F.A.C., the action of the Commission, absent

clear and convincing evidence of the

complete rehabilitation and substantial

mitigating circumstances, shall be to impose

a penalty of revocation.

30. There is no evidence of any rehabilitation by

Respondent, nor were any mitigating circumstances presented

under Section 11B-27.005(6), Florida Administrative Code, that

would justify a deviation from the penalty guidelines. Further,

Respondent presented no mitigating circumstances under Section

11B-27.005(6), Florida Administrative Code, that would justify a

deviation from the penalty guidelines.

31. Clear and convincing evidence established that

Respondent regularly used marijuana and that he lacks good moral

character, such that he should not be permitted to remain a

certified correctional officer.

32. The penalty guideline for the offenses charged

pursuant to Section 11B-27.005(6), Florida Administrative Code,

is revocation.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That Respondent be found guilty of failing to maintain good

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

Statutes, and that Respondent's certification be revoked.

DONE AND ENTERED this 25th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of April, 2001.

COPIES FURNISHED:

Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

John Stanton, Esquire

121 1/2 North Woodland Boulevard

Suite 3

Deland, Florida 32720

Rod Caswell, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

James T. Moore, Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

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.