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
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent, Kalangie J. Serrano, is a state certified correctional officer holding certificate No. 186788. In the early morning hours of February 9, 2002, Respondent was observed by Orlando Police Department Officer Jonathan Cute sitting in the driver's seat of Respondent's automobile. As Officer Cute approached the vehicle, he smelled a strong odor of marijuana coming from the vehicle and observed smoke in the passenger compartment of the automobile. As Officer Cute approached the vehicle, he noticed Respondent place something onto the center console of the vehicle. As Respondent exited the vehicle at Officer Cute's request, Officer Cute observed and smelled a cloud of marijuana smoke in the interior of the vehicle and determined that the object placed on the vehicle's console was a red metal pipe typical, in his experience, of the type of pipe used for smoking marijuana. Noting the presence of a burning residue in the pipe and suspecting it to be marijuana, Officer Cute performed a field test on the substance which tested positive determining that the substance was cannabis. Officer Cute arrested Respondent and charged him with possession of less than 20 grams of cannabis and possession of drug paraphernalia. No admissible evidence was received as to any determination of the charges filed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement Criminal Justice Standards and Training Commission, enter a final order finding that Respondent, Kalangie J. Serrano, violated Subsection 893.147(1), Florida Statutes, and, as a result, failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and that he be placed on probation for two years, be required to submit to drug testing, be enrolled in drug prevention education, and such other associated penalties as Petitioner deems appropriate. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kalangie J. Serrano 4340 Lauren Lane Titusville, Florida 32780 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are: (1) whether Petitioner, Nu Way Drywall, LLC, was in violation of the workers' compensation requirements of Sections 440.107 and 440.38, Florida Statutes (2007),1 by failing to secure workers' compensation coverage for its subcontractors and/or employees of its subcontractors; and (2) if yes, what penalty should be assessed against Petitioner.
Findings Of Fact On April 15, 2008, Germaine Green, a compliance investigator for the Department, conducted a random compliance check of a work site where an office building was under construction. The work site was located at 698 South Tamiami Trail in Osprey, Florida. During the compliance check, Ms. Green observed three men hanging metal framing for the interior walls. One of the men at the work site identified himself as Ted Webb and told Ms. Green that he was in charge of the framing work being done and that the other two men working with him were his sons. Mr. Webb told Ms. Green that his company, Ted Webb, Inc., had workers' compensation coverage through an employee leasing company, Howard Leasing. Ms. Green telephoned the leasing company and was told that the contract with Ted Webb, Inc., had been terminated or had lapsed in December 2007. Ms. Green then checked the Department's computerized database known as Coverage and Compliance Automated System (CCAS). The information maintained in CCAS allowed Ms. Green to determine whether Mr. Webb or his sons had workers' compensation coverage or exemptions from such coverage. After checking CCAS, Ms. Green determined that Mr. Webb and his company did not have workers' compensation coverage and that Mr. Webb and his employees had no exemption from such coverage. Upon making this determination, Ms. Green issued a Stop-Work Order. Mr. Webb advised Ms. Green that Nu Way Drywall, LLC ("Nu Way"), had subcontracted with him or Ted Webb, Inc., to perform the framing services at the work site. Under Florida law, a subcontractor that does not have workers' compensation coverage becomes the "statutory employee" of the contractor that hired the subcontractor. Upon being told that Mr. Webb was working for Nu Way, Ms. Green checked CCAS to determine if that company had active workers' compensation exemptions for any of its employees. Ms. Green's review of CCAS revealed that Nu Way had an exemption for only one person, Alex Rivera, the managing member of the company. Ms. Green contacted Mr. Rivera to determine whether he had received documentation that Mr. Webb had workers' compensation coverage prior to Mr. Webb's beginning work on the Osprey project. Mr. Rivera reported that he had received information in the past that indicated that Mr. Webb had workers' compensation coverage. However, Mr. Rivera told Ms. Green that he had obtained information regarding Mr. Webb's workers' compensation coverage before Mr. Webb began work on the subject work site. At all times relevant to this proceeding, Nu Way had workers' compensation coverage through an employee leasing company, Employee Leasing Solutions. However, when Ms. Green called the leasing company, she was advised by someone with the company that Mr. Webb and his two sons were not listed on the employee roster for Nu Way. Therefore, they were not covered by Nu Way's workers' compensation coverage. Employee leasing companies provide workers' compensation coverage for their clients, but coverage is provided only to employees that the client company specifically identifies. Because Mr. Rivera could not provide proof that Mr. Webb and his sons had workers' compensation coverage pursuant to Chapter 440, Ms. Green issued a Stop-Work Order for Specific Worksite Only ("Stop-Work Order") to Nu Way on April 15, 2008. The Stop-Work Order was posted at the work site and served on Mr. Rivera on April 16, 2008. On the day that Ms. Green served the Stop-Work Order on Mr. Rivera, she also served on him a Request for Production of Business Records for Penalty Assessment Calculation ("Request for Business Records"). The Request for Business Records requested that Mr. Rivera provide the business records of Nu Way to the Department so that it could determine the employer's payroll for the period of April 17, 2005, through April 16, 2008, for the calculation of the penalty provided in Subsection 440.107(7). In response to the Department's Request for Business Records Documents, Mr. Rivera provided Nu Way's business records, which included Nu Way's canceled checks. In auditing the business records, Ms. Green discovered that in addition to making payments made to Ted Webb, Inc., in 2006 and 2008, Nu Way had also made payments to two other companies that did not have valid workers' compensation coverage for their employees when they worked for Nu Way. According to its business records, Nu Way paid Santis Drywall and Construction (Santis) $36,890.00 between July 28 and August 11, 2006, and paid Hernandez Chico Drywall (Hernandez) $260,972.50 between March 17 and April 28, 2006. During the time period Nu Way made those payments to Santis and Hernandez, neither of those companies had valid workers' compensation coverage. After auditing Nu Way's business records, Ms. Green prepared a spreadsheet that included the payments made to uninsured subcontractors or companies during the relevant time period of April 17, 2005, through April 16, 2008. Ms. Green calculated the penalty by dividing the payroll for each uninsured subcontractor by 100 and then multiplied that number (the dividend) by the "approved manual rate" for drywall work for the year in question. Each product of 1/100 of the payroll and the approved manual yielded the "evaded premium" that Nu Way should have paid for each uninsured subcontractor in the years in question. The amount of the "evaded premiums" were then multiplied by 1.5 and then added together to determine the total penalty amount. Applying the formula prescribed in Subsection 440.107(7)(d), Ms. Green determined that the total penalty assessment against Nu Way was $76,215.95. On April 17, 2008, Mr. Rivera was served with the Amended Order of Penalty Assessment, which showed that the total penalty assessment against Nu Way was $76,215.95. That same day, Mr. Rivera, on behalf of Nu Way, entered into an agreement with the Department to pay ten percent of the penalty assessment in one lump sum payment and to make 60 interest-free payments for the balance. After Mr. Rivera signed the agreement, the Department issued an Order of Conditional Release from the Stop- Work Order ("Order of Conditional Release"). The Order of Conditional Release allowed Nu Way to resume work at the work site, subject to his complying with the terms of the agreement. When Ms. Green served the Amended Order of Penalty Assessment on Mr. Rivera, she discussed the penalty assessment with him and also allowed him to review the spreadsheet for accuracy. Mr. Rivera reviewed the spreadsheet, but did not find any errors. In preparing for this hearing, Ms. Green reviewed the spreadsheet and discovered that she had mistakenly included some payments made by Nu Way. By mistakenly including certain payments on the spreadsheet, the payroll amount used to calculate the penalty assessment was higher than it should have been. After discovering the mistake discussed in paragraph 20, Ms. Green prepared a new spreadsheet, which did not include the payments that had been mistakenly included in the initial spreadsheet. Ms. Green then recalculated the penalty assessment and properly determined the corrected penalty assessment to be $72,963.77. The Department prepared a Proposed Second Amended Order of Penalty Assessment showing that the correct penalty assessment for Nu Way is $72,963.77. As of the date of this proceeding, the Department had not served the Proposed Second Amended Order of Penalty Assessment on Mr. Rivera. However, at hearing, Mr. Rivera indicated that he did not object to this amendment as it reduced the penalty assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Petitioner, Nu Way Drywall, LLC, failed to secure the payment of workers' compensation for its employees in violation of Subsections 440.10(1)(a) and 440.38(1), Florida Statutes; and Assessing a penalty of $72,963.77 against Nu Way Drywall, LLC. DONE AND ENTERED this 28th day of October, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 28th day of October, 2008.
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 Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character.
Findings Of Fact On October 8, 1968, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-13556 was duly issued to Respondent by Petitioner. Respondent was employed as a police officer by the South Miami Police Department in April, 1988. Respondent was directed by his employer to present himself on April 27, 1988, for an annual physical examination at Mount Sinai Medical Center. Under the policy of the South Miami Police Department, all officers are required to submit to an annual physical examination, which includes an analysis of a urine sample from the officer for the presence of controlled substances. The specific date on which an officer is required by the South Miami Police Department to report for his annual physical is randomly selected. On the morning of April 27, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by the South Miami Police Department. At approximately 9:45 a.m., he was given a small sterile sample bottle in which he produced a sample of his urine as instructed. Nurse Joyce Hampton, the Mount Sinai employee responsible for the collection of urine samples from police officers undergoing annual physicals, received the urine sample from Respondent and promptly poured the urine sample into another sterile bottle and sealed the bottle with its cap and then with evidence tape. The sealed bottle containing Respondent's urine sample was labeled so as to identify it as Respondent's urine sample and placed in a locked box. On the afternoon of April 27, 1988, the sealed bottle containing Respondent's urine sample was picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the urine sample could not be tampered with without detection. On May 3, 1988, the sealed bottle containing Respondent's urine sample was opened by a laboratory analyst employed by Toxicology Testing Service. Respondent's urine was thereafter analyzed by Toxicology Testing Service. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the urine sample had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. A small amount of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for cocaine metabolite, a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled Controlled Substance Testing Procedures. Respondent's urine contained a metabolite of cocaine, in a concentration of 100 nanograms per milliliter. This result was due to Respondent's use of cocaine. Respondent contends his positive testing for cocaine was caused by his passive exposure to cocaine from the several cups of a type of coca tea that he drank on a daily basis. This contention is inconsistent with the results of the urine analysis and is rejected. Respondent took early retirement with the South Miami Police Department on May 19, 1988, the date the Department's internal affairs investigators had asked Respondent to give a sworn statement as to his use of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0715 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 6.-13. Addressed in paragraphs 6 and 7. 14-19. Addressed in paragraphs 8, 9, and 11. The proposed finding of fact submitted by Respondent that the positive testing for cocaine was produced by a coca tea that he drank is addressed by paragraph 11. Respondent's letter filed July 14, 1989, contains no other proposed finding of fact. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Milton Franklin 11635 Southwest 136th Terrace Miami, Florida 33176 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
