STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2363

)

DIANE O'CONNOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 29, 2000, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: Thomas W. Brooks, Esquire

Meyer & Brooks

2544 Blairstone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Respondent should be terminated from employment with Petitioner for failing a drug screen.

PRELIMINARY STATEMENT

On May 10, 2000 Respondent received a Notice of Disciplinary Action from the Escambia County School Board. The Notice charged her with violating the Board's drug-free work place policy and unlawful use of a controlled substance. The Board's action was based solely on a drug screen given to Respondent which had a positive result for drugs. On May 16, 2000, the School Board voted to terminate Respondent from employment based on the Notice of Disciplinary Action.

Respondent's termination became effective May 17, 2000.

Respondent disagreed with the Board's employment action and requested a formal administrative hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called two witnesses and offered eight exhibits into evidence. Respondent testified in her own behalf and offered three exhibits into evidence.

After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on December 11, 2000 and December 12, 2000, respectively.

FINDINGS OF FACT

1. Respondent, Diane O'Connor, is a fifty-one-year-old woman who was employed with the Escambia County School Board as a school bus driver. She has been a school bus driver for several years. As part of her employment in a safety-sensitive

   position, Respondent was generally aware of the Board's Drug Free Workplace Policy, Escambia County School Board

   Rule 6Gx17-2.33, and that she was subject to random drug testing. In fact, Respondent had been subjected to five or six random drug tests in the past. Respondent's past tests were negative since Respondent does not use marijuana or other illegal drugs.

2. In 1999, Respondent began taking Hemp Seed Oil after she experienced chest pains at Baptist Hospital in Pensacola because she was concerned for her health. Mr. Kevin Kerish, a friend of Ms. O'Connor's recommended that she take Hemp Seed Oil for her general health. He said it made him feel better. Respondent purchased her first bottle of Hemp Seed Oil in Pensacola. However, all subsequent bottles were acquired from a distributor in California.

3. Hemp Seed Oil is a food product. It is not a controlled substance. There was no evidence to show and it is highly doubtful, that Hemp Seed Oil has any psycho-active properties.

4. On April 26, 2000, Respondent was subjected to a random drug test on her urine. The urine sample was split into two separate specimens.

5. On May 3, 2000, she was informed by Dr. James Barnshaw, the Medical Review Officer, that the urine specimen she provided

   was reported as positive for marijuana. The sample contained a concentration for 9-THC (11-nor-delta9-tetrahydrocannabinol) of

   35 ng/mL (nanograms per milliliter). 9-THC is the major metabolite of the active ingredient in marijuana. It is also a metabolite for legal hemp products.

6. Hemp is one of a variety of plants that originates from Cannabis Sativa (commonly called Marijuana). In one form cannabis produces hemp fiber, an ancient source of rope. Currently, hemp fiber is a practical source of fabric from which many clothing accessories can be made. Additionally, various health food products derived from hemp are commercially available. In particular, Hemp Seed Oil, like the oil being taken by Respondent, has a very high content of polyunsaturated fats (essential amino acids and fatty acids). These fats are used to maintain a healthy lifestyle and are used in the treatment of a variety of diseases. Neither hemp fiber or Hemp Seed Oil contains significant amounts of any substance with psychoactive properties.

7. During her phone interview with Dr. Barnshaw on May 3, 2000, Respondent denied using marijuana. Through the questioning of Dr. Barnshaw she revealed that she had been taking Hemp Seed Oil since August or September 1999.

   Dr. Barnshaw told Respondent that Hemp Seed Oil can cause a

   positive test result for THC and was possibly the cause of her positive test result.

8. Dr. Barnshaw notified the Escambia County School District of Respondent's test result on May 4, 2000. The explanation offered by Respondent for the positive test result was not acceptable to the School Board. However, other than to maintain a strict policy on drugs, no explanation for the School Board's or Medical Review Officer's reasoning on rejecting Respondent's explanation was introduced into evidence.

9. The bottle of Hemp Seed Oil produced by Respondent at the hearing contained a warning in very small print that ingestion of the Oil could cause a positive drug test. Respondent neither saw nor read that warning until after she tested positive. A friend actually pointed the label warning out to her.

10. On May 9, 2000, Respondent requested that the split urine specimen be analyzed. On May 22, 2000, the original result was re-confirmed positive for marijuana with metabolite concentrations at 63 ng/mL9-THC.

11. Respondent ceased consumption of the oil immediately upon notification of the positive test result and upon being informed that the oil may have been its cause.

12. On May 10, 2000, Respondent was given a Notice of Disciplinary Action which specified the charges against her as

    violating the employer's Drug Free Workplace Policy

    
    

    (Rule 6Gx17-2.23) and committing misconduct involving the unlawful use of a controlled substance. It further notified her that she would be dismissed on May 17, 2000. At the May 16, 2000, School Board meeting, the Escambia County School Board terminated Respondent, effective May 17, 2000.

13. Dr. Palm is a pharmacology professor at Florida A & M University. He is an expert in his field. Based on his expert opinion, the ingestion of 2-3 tablespoons of Hemp Seed Oil

    (30-45 mL) on a daily basis will cause a positive test result for THC in the amounts found in Respondent's urine samples.

14. The Board has a non-mandatory policy that allows an employee to notify management of any prescription drugs or other medications an employee is taking that could inhibit their ability to drive. The policy does not cover substances which may impact a drug test. Respondent was aware of the Board's policy only with respect to prescription drugs. Respondent's consumption of Hemp Seed Oil never had any affect on her ability to drive. Respondent never thought the oil could affect a drug screen. Therefore, she never reported her use of Hemp Seed Oil to anyone. Since Hemp Seed Oil does not have any affect on a person's ability to drive, it is not a substance covered by the Board's reporting policy. Moreover, the Board's reporting

    policy is non-mandatory. Therefore, Respondent did not violate the Board's reporting policy.

15. Respondent's positive drug test was based upon consumption of Hemp Seed Oil, not marijuana or any other controlled substance. The Board's rule prohibits use of controlled substances and substances which may affect a person's ability to drive. Except in cases of deliberate tampering, it does not prohibit use of substances which may affect a drug test. The driver's manual states that:

    Any employee testing positive for a controlled substance or found to have performed a safety-sensitive function with a BAC of 0.04 or greater will be terminated from employment with the School district.

    
    

    However, the manual is not a rule and was not shown to be part of Rule 6Gx17-2.33. Since Respondent did not violate

    Rule 6Gx 17-2.33, she should be reinstated with back-pay and benefits.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

17. The Petitioner has the burden of proving by a preponderance of the evidence, based upon the charges alleged that it had just cause to terminate the employment of Respondent.

18. Escambia County School Board Drug-Free Workplace Rule 6Gx17-2.33(1) states:

    Personnel of the School Board shall not manufacture, distribute, dispense, possess or use on or in the workplace any alcoholic substance, any intoxicating or auditory, visual, or mental altering chemical or substance or narcotic drug, hallucinogenic drug, amphetamine, barbiturate, marijuana or any other controlled substance, as defined by Federal or State law or rule, or any counterfeit of such drugs or substances all being collectively referred to as drugs.

    
    

19. In this case, the Petitioner failed to establish by a preponderance of the evidence that Respondent's positive drug test was caused by a controlled substance. Therefore, Respondent should be reinstated with back-pay and benefits.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the charges against Respondent should be dismissed and

she should be reinstated with full back-pay and employment benefits plus interest from the date of May 17, 2000.

DONE AND ENTERED this 30th day of January, 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 (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001.

COPIES FURNISHED:

Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Thomas W. Brooks, Esquire Meyer & Brooks

2544 Blairstone Pines Drive Tallahassee, Florida 32302

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Jim May, Superintendent Escambia County School Board

215 West Garden Street Pensacola, Florida 32501

Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

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.

Docket for Case No: 00-002363

Orders for Case No: 00-002363