Vernice L. BROWN, Appellant,
v.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
District Court of Appeal of Florida, Fourth District.
W. George Allen of Law Offices of W. George Allen, Fort Lauderdale, for appellant.
D. David Sessions, Assistant General Counsel, Tallahassee, for appellee.
WARNER, Judge.
The appellant challenges a final order of the Criminal Justice Standards and Training Commission ("Commission") revoking his criminal justice certification for testing positive for cocaine metabolites in a drug test. The Commission overruled the Hearing Officer's recommendation that the administrative complaint for revocation be dismissed based upon the Hearing Officer's conclusion that the Petitioner had failed to establish by clear and convincing evidence that the appellant had possessed cocaine. Because we find that the Commission improperly reweighed the facts, we reverse.
The Hearing Officer made the following findings of fact relevant to this appeal:
5. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug testing for all police officers employed by the City of Pompano Beach Police Department.
6. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992.
7. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station.
8. Ms. Bobkier, a WCMC employee with four and a half years experience, was *978 responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992.
9. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as D0482663-5.
10. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried.
11. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992.
12. The courier presumably took the samples to NHL where they were given ascension [sic] numbers by a NHL employee. Neither the courier nor the "ascension" [sic] employee testified at the hearing.
13. The ascension [sic] number assigned to sample D0482663-5 was XXXXXXX-X.
14. According to Dr. Donald R. Stalons, the director of NHL, testing on ascension [sic] sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m.
15. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing.
16. According to the test results for ascension [sic] sample no. 3303217-5, such sample was positive for cocaine metabolite.
17. The "ascension number" [sic] referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.
Based on these findings, the officer made the following relevant conclusions, which were designated conclusions of law:
22. The Petitioner bears the burden of proof in this matter to establish, by clear and convincing evidence, that the Respondent has failed to meet the foregoing standard. The administrative complaint is the framework for such alleged failure. In this case, the Petitioner alleged that Respondent had been in actual or constructive possession of cocaine. Petitioner failed to prove such allegation.
23. Considering only Petitioner's witnesses, the evidence failed to establish that Respondent's urine sample tested positive for cocaine. According to Ms. Bobkier, the sample was taken during the day of September 24, 1992, then transported by courier to the testing location that evening. According to the testing center's director, the sample purported to be Respondent's was tested during the afternoon on September 24, 1992. This discrepancy has not been explained. Obviously, if Ms. Bobkier's account of the day's events was accurate, the sample that was tested was not Respondent's. Petitioner must establish the proper evidentiary trail to connect Respondent to the sample that tested positive for cocaine metabolite.
The Petitioner filed exceptions to the Hearing Officer's recommendation that the administrative complaint be dismissed. In the exceptions, the Petitioner recited the above evidence and then detailed further evidence which appeared in the record. Petitioner then concluded that "[t]he recommended order clearly indicates that the only obstacle to a finding that Respondent's urine tested positive for cocaine is the discrepancy concerning the time the sample was tested and/or the time that the sample was transported from WCMC to NHL." Relying on Southern Bakeries, Inc. v. Florida Unemployment Appeals Comm'n,
It is black letter law that an agency may not reweigh evidence submitted to an administrative hearing officer, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew. Heifetz v. Department of Business Regulation,
The Commission's reliance on Southern Bakeries, Inc. was misplaced. While that case is factually similar, the legal issue is different. In that case, the hearing officer had rejected the urine test on the sole basis that the Commission had failed to present the proper witnesses to authenticate the chain of custody or that the test was positive. Thus, the record showing that the test was positive for drugs was not admitted. The second district held that the business records exception to the hearsay evidence rule, section 90.803(6), Florida Statutes (1987), did not require the testimony of each person involved in the taking and analyzing of the sample in order to admit the report of the test results into evidence. In Southern Bakeries, the court dealt with the refusal to admit relevant evidence. In the instant case, we deal with the weight given by the Hearing Officer as trier of fact to admitted evidence. See Gavin v. Promo Brands USA, Inc.,
Having found that the Commission improperly reweighed evidence contrary to Heifetz, we reverse and remand for entry of an order approving the Hearing Officer's report.
GLICKSTEIN and SHAHOOD, JJ., concur.