The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
Findings Of Fact Respondent is a certified corrections officer, certificate number 68527. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine. The positive test was observed by Sgt. Farless and Respondent. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance. The area Respondent was traveling through is known as a high drug area with a high crime rate. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.
The Issue Was Respondent lawfully terminated from his position as a waste water treatment plant operator.
Findings Of Fact 1. Respondent was employed by the Board as a waste water treatment plant operator since at least August 19, 1999. 2. On the night of August 9, 2000, Respondent was present at a dwelling located at 6079 Hilburn Road, Pensacola, Florida. This is a dwelling which is leased by Nicholas Monteleone. 3. Deputy James Newton of the Escambia County Sheriff's Office, along with other officers, executed a search warrant at the dwelling located at 6079 Hilburn Road on August 9, 2000. The apparent target of the warrant was Nicholas Monteleone and the crime giving rise to the search warrant was possession and distribution of LSD, a controlled substance. 4. Deputy Newton was stationed at the rear exit of the dwelling during the execution of the warrant. When the officers executing the warrant knocked on the front door of the dwelling, Deputy Newton observed three individuals run out of the back door. 5. Deputy Newton observed the second individual reach into his pants pocket, pull out an object, and throw it on the ground. This individual was identified by Deputy Newton as being the Respondent. Deputy Newton retrieved the object, which was determined to be a small bag containing an unknown substance. The matter in the bag was field tested for controlled substances. The test revealed the presence of cocaine. 6. Charles Peterson is the assistant director of maintenance services for the Board and as such, is Respondent's supervisor. 7. Mr. Peterson learned of Respondent's arrest on August 10, 2000. Subsequent to a meeting between Mr. Peterson, Dr. Douglas Garber, who is the Board's Assistant Superintendent for Human Resources; Mark Pursell; and the Board's risk manager, it was determined that reasonable suspicion existed to believe Respondent possessed cocaine in his body. They decided to require that Respondent submit to a drug test. 8. Mr. Peterson, Dr. Garber, Mark Pursell, and the risk Manager determined that Mr. Peterson should escort Respondent to the Baptist Medical Park Occupational Health facility in Pensacola, Florida. This decision occurred while Respondent was on leave. Mr. Peterson complied with this instruction on August 22, 2000. 9. At the facility Respondent provided a urine sample and signed a statement certifying as follows: "I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct." 10. Although the sample collector, Cynthia Watkins, deviated from the facility procedures for urine collection, the procedures she used were sufficient to ensure that the urine collected was in fact Respondent's. Her logs indicated that Respondent was the only person from whom she collected urine on August 22, 2000. A proper chain of custody was prepared and the sample was sent to Rapid-Net, a drug testing laboratory in Miami, Florida. 11. On August 30, 2000, the laboratory determined that Respondent's urine contained cocaine metabolite. On August 31, 2000, a medical review officer certified this finding. 12. Respondent had signed a document, on August 19, 1999, certifying that he had received the Board's notice to employees regarding the drug-free workplace policy. Respondent had further certified that he understood that compliance with the policy was a condition of employment. At the hearing Respondent asserted that he was fully aware of this policy prior to the incidents giving rise to this hearing. 13. The Board's "NOTICE TO EMPLOYEES REGARDING DRUG-FREE WORKPLACE PROGRAM" states as follows: "It is a violation of the policy of the School Board for any employee to manufacture, distribute, dispense, possess or use drugs whether in the workplace or away from the workplace including non-working hours." 14, The policy further recites that the Board may require an employee to submit to a drug test upon reasonable suspicion. 15. Respondent took voluntary drug tests and results were determined on August 31, 2000, September 6, 2000, and December 31, 2000. All of these drug tests were negative for controlled substances. 16. The Respondent possessed drugs within his body on August 22, 2000, as demonstrated by a urinalysis based on reasonable suspicion. This possession violated the Board's drug-free workplace policy. It is the consistent practice of the Board to terminate employees who are found to be involved with illegal drugs.
Conclusions For Petitioner: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 For Respondent: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered terminating Respondent, Constantine V. Varazo, from his employment by the Escambia County School Board. DONE AND ENTERED this 1e(G day of June, 2001, in Tallahassee, Leon County, Florida. Y L. HOOPKR ) 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 /“@*day of June, 2001. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
Findings Of Fact 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner School Board has just cause to terminate the Respondent's employment as a teacher, with reference to a positive drug test for purported use of marijuana.
Findings Of Fact The Respondent has been employed at Dolores S. Parrott Middle School (DSPMS) as a teacher for a total of seven years, including the 2008-2009 school year. The Respondent taught Health, Career Education, and Physical Education. A large component of the Health curriculum is drug use prevention. It includes, as a portion of its curriculum and discussion, the subject of marijuana use. The Respondent was the S.T.A.N.D. (Students Taking Action on Drugs) sponsor at the school for several years prior to the 2008-2009 school year. He was thus responsible for providing students with information about the dangers of using and abusing drugs and the possible consequences related thereto. His position as the Health teacher and the S.T.A.N.D. sponsor made him a role model for students regarding the subject of drug use and drug abuse prevention. The principal at DSPMS for the 2008-2009 school year was Leechele Booker. She has been principal at that school for two years and was an assistant principal and teacher for some twelve years prior to that with the Hernando County School District. In her capacity as principal she is responsible for supervising and evaluating employees, enforcing policy and procedures, as well as investigating alleged violations of policies, law and recommending any resultant disciplinary measures to the District. On March 11, 2009, an unidentified woman called the principal at DSPMS and left a voice mail message identifying herself as "Michelle". She requested that the principal return her call concerning one of the teachers at the school. The principal returned the call to the number that the woman had left. Since no one answered that call, the principal left a message identifying herself. Ms. Booker received a return call approximately thirty minutes later. When Ms. Booker took the call the woman identified herself as Michelle, and acknowledged receiving the message which Principal Booker had left on the voicemail. The person identified as Michelle thereupon informed the principal that she had knowledge of one of the teachers at DSPMS engaging in recent use of marijuana. She claimed to have observed him smoking marijuana over the past weekend and told the principal of her concern at seeing that conduct by one of the teachers. Michelle also advised Ms. Booker that the teacher's fiancée was present when the teacher was smoking marijuana. She identified the teacher's fiancé as a woman named "Brenda." She then stated that the teacher's name was "Mike" and that he was the Health teacher at DSPMS. Ms. Booker then realized that there was only one teacher by that name at the school, the Respondent, Michael Provost. She was already aware that the Respondent's fiancée's name was Brenda, having met her on several occasions. The principal ended the call by advising Michelle that she would investigate the matter and thanked her for the information. She did not request any additional contact information from Michelle. She did not learn additional facts concerning where the Respondent had been seen using marijuana, when it occurred, how Michelle knew the Respondent, or the nature of her relationship with the Respondent. It is likely, although not clear from the record, that Principal Booker did not want to reveal to the caller what her thoughts might be concerning the identity of the teacher who was the subject of the complaint. After ending the phone call with Michelle, Ms. Booker met with Assistant Principals Gary Buel and Nancy Vasquez. She told them of the phone call and the nature of it and they discussed what actions should be taken, based upon the Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace." Ms. Booker then contacted the district office of the Petitioner and spoke with the secretary in "Human Resources." She was thereby advised that an investigation would have to be conducted and that Heather Martin, the Administrator for the Department of Human Resources, would have to be involved. After contact with the district office, Principal Booker and Ms. Vasquez discussed the matter and agreed that they had "reasonable suspicion," under the above-referenced policy, to require the Respondent to take a drug test. The Petitioner maintains that that reasonable suspicion is based upon the information provided in the phone call with Michelle, as well as the fact that the principal was aware that the Respondent was having financial difficulties and needed to be paid for extra-curricular duties immediately, rather than waiting for the normal payment process. He was known to have requested permission to leave work early more frequently than other employees. Ms. Booker called the Respondent to her office to report the allegations lodged against him by the caller. She advised him of the phone call and the reference to smoking marijuana. She informed him that she believed she had reasonable suspicion to have him drug-tested. She told him that Mr. Buel would escort him to the testing facility. The principal then left her office, but was called back because the Respondent had some questions for her. She located a Union representative, Marlene Richie, who accompanied her back to the office to confer with the Respondent. When the principal and Ms. Richie arrived at the office, the principal informed her of the allegations against the Respondent. Ms. Richie made some phone calls to Sandra Armstrong, the Executive Director of the Teachers Association and Joe Vitalo, the Union President. After these phone conversations, Ms. Richie informed Ms. Booker that the Respondent wished to speak to her alone. Ms. Booker spoke with the Respondent alone, in her office, and he informed her that he had been smoking marijuana and told her that the test would be positive. The Respondent admitted his marijuana use because he respected the principal, and it was in everyone's best interest for him to be honest and candid about his problem. He was not coerced or under any pressure to make the admission. He made the admission voluntarily. The Union representative, Ms. Richie, then rejoined Ms. Booker and the Respondent in the office, and the Respondent informed Ms. Richie of what he had told Ms. Booker concerning his marijuana use. Ms. Booker informed the Respondent that he would still need to have drug testing, and she also discussed the Employee Assistance Program ("EAP"). The Respondent volunteered to enroll in the EAP program and made an appointment to see a counselor. The Respondent had not requested assistance or a referral to the EAP before the conversation with the principal on this day, when he admitted his marijuana use. There are two means of referring employees to the EAP under the district's drug and alcohol policy; either self- referral by the employee or referral by management. Under this policy, no disciplinary action is taken when an employee self- refers to the program, or when he or she admits to a drug or alcohol problem and is referred to EAP by a manager. The Petitioner maintains that the Respondent did not volunteer that he had a drug or alcohol problem until confronted with the principal's suspicion and direction to take a drug test. At the same time, however, the Petitioner acknowledges that the Respondent's admission concerning his marijuana use was not because he felt coerced. The Petitioner maintains that, in its view, the request for EAP assistance was not a voluntary request and that therefore, under the Petitioner's policy, disciplinary action can still be taken. The preponderant, persuasive evidence, based upon credibility of the witnesses, including the Respondent, demonstrates that the request for EAP assistance was a voluntary one and was done in conjunction with the principal voluntarily discussing the availability of the EAP program to the Respondent. The Respondent was under no pressure or coercion when he made the admission. In fact, the Respondent, as well as the Petitioner, have presented substantial argument concerning whether there was even "reasonable suspicion," under relevant case law, for the principal to order a drug test. Because of the findings made, and conclusions reached herein, the question of whether "reasonable suspicion" for drug testing existed is immaterial, in light of the District's Policy 6.33 and Section 112.0455, Florida Statutes (2008). After meetings and conversations with Union representatives, the Respondent agreed to the drug test and the results were received on March 18, 2009. They indicated that the test was positive for the presence of marijuana. The Respondent was suspended with pay on March 12, 2009, pending the outcome of an investigation. The Respondent was advised in writing of his suspension at the time of his meeting with the principal and through a letter from the Superintendent. A pre-determination conference was scheduled for March 20, 2009, after the receipt of the drug test results. This was to provide the Respondent an opportunity to dispute any of the information collected through the investigation, before discipline was recommended. The Respondent attended the conference and again admitted to using marijuana and stated that he was aware of the Drug and Alcohol-Free Workplace Policy. He explained that his drug use was the result of personal problems he was experiencing. Following the pre-determination conference, and before making a disciplinary recommendation to the Superintendent, Ms. Martin attempted to contact the informant Michelle, to confirm her story. It was important for Ms. Martin to ensure that she had a name and phone number of the informant since the District does not act on anonymous complaints. A complaint is deemed anonymous if the District has no contact information and no name. Ms. Martin called the number that Michelle had left with the principal and the phone was answered by someone who said it was "Chrissy's phone." Ms. Martin asked for Michelle and a different person came on the line and identified herself as Michelle. The phone number and phone in question were registered to a Chrissy Campbell. Chrissy Campbell is married to the Respondent's fiancée's brother. The Respondent and Campbell are acquainted with each other but do not get along. Ms. Martin advised Michelle that she was calling in reference to the complaint received earlier by the principal. She stated that the District was conducting an investigation and asked if Michelle was willing to provide additional information. At that point, Michelle refused to give any additional information. In her conversation with Michelle, Ms. Martin did not use the Respondent's name, nor did she indicate the call concerned a drug test. After her conversation with Michelle, Ms. Martin reviewed the drug test results and the personnel file, including the Respondent's disciplinary history, before making a recommendation for discipline to the Superintendent. The Respondent's personnel file contained three additional discipline records. In 2005, he received a written warning concerning a violation of the Professional Code of Ethics regarding an inappropriate comment. In 2007, he was reprimanded in writing, stripped of his S.T.A.N.D. sponsor duties and suspended without pay for ten days for failing to properly handle a student's reported drug use. In 2008, he received a Letter of Direction for failing to follow the curriculum and being too personal with students. Ms. Martin took that disciplinary history into consideration in making her recommendation to the Superintendent for termination of employment. By letter of March 23, 2009, the Superintendent advised the Respondent of his recommendation to the School Board that the Respondent be terminated from employment. This proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County dismissing its Petition for Termination of Employment and reinstating the employment of the Respondent with attendant provision of back pay and all related benefits. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2009 COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Wayne S. Alexander, Superintendent School Board of Hernando County, Florida 919 North Broad Street Brooksville, Florida 34601 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida, and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.; § 1001.32, Fla. Stat. (2016). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a two-year probationary period, and required Respondent to submit to substance abuse treatment. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who was at work. Respondent’s calls were not answered by Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.” At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows: I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day. And she asked me for pain pills or if I had any, and I said no.[1/] Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication. Mr. Long then contacted the school board’s office of human resources to report what he had been told by Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.” Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.” During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/ At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit to drug testing pursuant to the school board’s drug-free workplace policy. Reasonable Suspicion Indicators Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows: Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy. Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting Abnormal or erratic behavior Evidence of possession, dispensation, or use of a prohibited substance Industrial accident requiring medical attention Physical altercation or assault Odors and/or Appearance Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess very flushed very pale Jerky eye movements Unfocused, blank stare Dilated or constricted pupils Dry mouth, frequent swallowing or wetting lips Bloodshot or watery eyes Behavior and Speech Slurred or incoherent speech Breathing difficulty or irregularity Loss of physical control, dizzy or fainting Unsteady walk, poor coordination Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude Irritable, moody, belligerent or aggressive demeanor Nausea or vomiting Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness Rambling, loud, fast, silly or repetitious speech Talkative, cursing, other inappropriate speech Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions Mr. Carter and Ms. Anderson each completed a checklist. None of the indicators listed above were checked by either Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4, 2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing. Morphine and Imitrex Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and] [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her 2016-2017 annual contract with the School Board. DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2017.
The Issue Has Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2012), by driving a vehicle while impaired, and if so, what penalty should be imposed?
Findings Of Fact Respondent, James H. Rogers, is a corrections officer certified by the State of Florida Criminal Justice Standards and Training Commission. Mr. Rogers was issued correctional certification number 41789 on September 6, 1989. Respondent was driving a vehicle in Lowndes County, Georgia, early in the morning on March 23, 2013, when he failed to stop at a red light when making a right-hand turn. Georgia State Trooper (then Cadet) Jason Fletcher and Corporal Chris Kelch were on road patrol in the area and observed Respondent’s failure to come to a complete stop. They made the decision to pull Mr. Rogers over for the observed traffic offense. Trooper Fletcher was a new cadet at the time of the stop. In fact, March 23, 2013, was during the first month of his field training, and he was accompanied by a field training officer, Corporal Kelch. At the time of the stop, Trooper Fletcher had approximately two years of experience as a police officer and sheriff’s deputy before attending trooper school. Trooper school is 32 weeks long. Trooper Fletcher had completed his classroom portion of training and was completing his field training. Corporal Kelch graduated from Trooper School in August 2007, and acted as Trooper Fletcher’s field training officer. Both men have training in traffic-related issues and field sobriety and roadside evaluation. Corporal Kelch is a certified breath-test operator for the State of Georgia. Fletcher and Kelch stopped Respondent at approximately 2:34 a.m. When they pulled Respondent over, his car was on the entrance ramp to Interstate 75. There is a limited shoulder on the road and the ramp has a downward slope. Trooper Fletcher got out of his patrol car and approached the driver’s side of Respondent’s car. Corporal Kelch also got out and was at the rear passenger side of Roger’s vehicle. When Trooper Fletcher made contact with Respondent, he immediately smelled the odor of alcohol on Respondent’s breath and noticed that his speech was somewhat slurred. While Respondent has a decidedly “southern drawl,” not all of the speech pattern heard on the audio portion of the dash-cam video of the encounter can be attributed to his accent. When Trooper Fletcher asked Mr. Rogers to exit his car, he was a little unsteady on his feet. Corporal Kelch also observed that his eyes were bloodshot and watery. Upon Respondent’s exit from the car, Corporal Kelch went over to shut the car door for safety reasons and confirmed that the car had no other occupants. Trooper Fletcher asked Respondent if he had been drinking, and Mr. Rogers responded by naming the locations he had visited that night. He admitted to having about one and one-half drinks. There are multiple field sobriety tests available to patrol officers when investigating a person for impaired driving. Some of those require a subject to walk and turn, or to stand on one leg. However, given the uneven terrain where the traffic stop was made, both officers deemed it unadvisable to use those field sobriety tests, because they are meant to be performed on a level surface. Moving to another location to conduct the field sobriety tests was not an option because it would require either leaving Mr. Rogers’ car unattended with no patrol lights to alert other drivers that it was on the entrance ramp, or allowing Mr. Rogers, a possibly impaired driver, to get back behind the wheel. Trooper Fletcher attempted to perform a horizontal gaze nystagmus test, but Mr. Rogers was unable or unwilling to follow the directions given to him, so the test was not completed. Trooper Fletcher continued to talk to Mr. Rogers during the stop, and eventually Respondent admitted that driving was not a good decision, and that he had consumed more alcohol than he had originally indicated, including both beer and mixed liquor. Although he admitted drinking both beer and mixed drinks, he could not recall what type of mixed drinks he had consumed. Based upon Respondent’s original failure to stop at the traffic light, the smell of alcohol on his breath, his slurred speech and unsteady gait, his inability to follow directions, and his admission to drinking several alcoholic drinks, both officers believed Mr. Rogers was impaired. As a result, Trooper Fletcher placed him under arrest for driving under the influence (DUI). Respondent was handcuffed and Trooper Fletcher read him the Georgia Implied Consent notice before placing him in the back of the patrol car. Mr. Rogers remained in the patrol car with his hands cuffed behind his back while the officers inventoried his car and arranged for a tow truck to remove it from the interstate ramp. Trooper Fletcher then drove to the jail. While in the car, both men were able to observe Mr. Rogers through the rearview mirror and were able to hear any sounds that he might make. The first encounter with Mr. Rogers occurred at approximately 2:34 a.m., and a breath-alcohol test was administered to him at approximately 3:51 a.m. The officers were able to observe Mr. Rogers for more than the required 20-minute waiting period before administering the test. Respondent had no access to any alcoholic beverages from the time he was stopped until the alcohol breath test was administered. There was no evidence he tried to insert anything in his mouth, or that he tried to vomit or regurgitate anything that he previously ingested. Trooper Fletcher and Corporal Kelch were able to observe him both in the patrol car and in the jail for more than 20 minutes leading up to the administration of a breath-alcohol test. In order to have a valid sample, a person must blow a minimum of 1.1 liters of deep lung air into the tube of the machine. An average male can usually exhale approximately 3.1 liters of air. Mr. Rogers’ first sample was invalid because he did not provide sufficient volume for a successful test. There was no indication that Respondent had a medical problem that would prevent him from providing enough air for the test. Ultimately, Mr. Rogers was able to provide two valid breath samples at approximately 3:51 a.m. A breath-alcohol test consists of two breath samples. The breath-alcohol test administered to Mr. Rogers had readings for breath-alcohol levels of .125 and .124g/ml. The intoxilyzer instrument was working properly at the time of Respondent’s breath samples. It had been inspected by Donald Whitaker, the area supervisor responsible for the inspection and maintenance of breath-testing instruments in Lowndes County, the day before. It remained in good working order at its next scheduled inspection. Mr. Rogers was charged with failure to obey a traffic control device and driving under the influence. In his answers to requests for admissions, Respondent admitted that on or about November 20, 2007, he was adjudicated guilty for the offense of driving under the influence by the County Court for the Third Judicial District in and for Hamilton County, Florida. He also admitted receiving a Letter of Acknowledgement from the Criminal Justice Standards and Training Commission regarding a charge of Pled Guilty to Driving Under the Influence in CJSTC Case No. 25499. No evidence was submitted to establish the meaning or significance of a “Letter of Acknowledgement.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent violated section 943.1395(7) as defined in rule 11B- 27.0011(4)(b). It is further recommended that the Commission suspend Respondent’s certification for a period of one year, followed by three years of probation, subject to such terms and conditions as the Commission may in its discretion deem appropriate. DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Charles Marcus Collins, Esquire Collins Law Firm Post Office Box 541 Monticello, Florida 32345 (eServed) Dean Register, Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas Kirwan, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed)
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
