The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson. DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 2nd day of February, 2005.
The Issue This case is presented as rules challenges to certain matters allegedly undertaken by the Respondent and is brought in accordance with the authority set forth in Section 120.56, Florida Statutes. Petitioner asserts that there exist two rules within the meaning of Subsection 120.52(14), Florida Statutes, which have not been duly promulgated in keeping with the terms and conditions of Section 120.53, Florida Statutes. The items which are challenged by this Petition are: The Respondent's Contract Management System Manual (HRSR-0-75-1). The execution document involved in the award of contract No. 1979 DA-1, entitled "Design and Delivery of Drug Abuse Training Support Program", which was awarded to the Florida Council for Community Mental Health, Inc.
Findings Of Fact In support of its case the Petitioner presented one item of evidence. This item was received as Petitioner's Exhibit No. 1. The exhibit is a memorandum letter from Robert A. Furlough, Acting Mental Health Program Staff Director, addressed to Abe Lavine and it is entitled "Procedure in the Selection of the Most Appropriate Service Provided for Design Delivery of Training". Notwithstanding the title of the letter, it is in fact a summarization of the steps taken by the Respondent in the award of the "Design and Delivery of Training" element of the "State Training Support Program". In the course of the letter it discusses the fact that the Contract Management System Manual (HSRS-0-75-1) was utilized; however, that manual was not appended to the correspondence and was not offered in the course of the hearing. Likewise, the document of execution of the award of Contract No. 1979 DA-1, for the "Design and Delivery Training" element of the "State Training Support Program", if such a document exists, was not offered as evidence in the hearing sub judice.
The Issue The issue in this case is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment as a caregiver with Dynamic Healthcare Providers, Inc. (“Dynamic Healthcare”), a service provider regulated by Respondent. Since Petitioner applied to be a caregiver, a position of special trust, with Dynamic Healthcare, he is required to undergo a Level 2 background screening. The Department of Children and Families (“Department” or “DCF”) conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Petitioner admitted in both the paperwork he filed with the Agency and in his testimony at hearing. On September 27, 1994, Petitioner entered a plea of guilty to cocaine possession, a third-degree felony, and to possession of drug paraphernalia, a first-degree misdemeanor. The cocaine possession conviction is a disqualifying offense for employment in a position of trust. He was ordered to pay court fees and costs, and sentenced to 14 days’ confinement in county jail. In the course of that same arrest, Petitioner also was charged with battery on his pregnant girlfriend, a misdemeanor offense, but that charge was later abandoned. In his response to the Exemption Questionnaire, Petitioner explained the incident as follows: A lady whom I was getting high with on a daily basis and shared my residence with[,] we got into an argument. I refused to share my drugs with her that particular day[.] She then became irate and called the police and told them I assaulted her. I was searched by the officer[s.] [T]hey found a crack pipe on my person with residue. I was charged with cocaine possession[.] At the hearing, when asked if he had another prior arrest for domestic violence, Petitioner admitted he had been arrested previously, and charged with domestic violence in a separate incident, regarding a dispute he had with a previous girlfriend. Petitioner also explained his other previous arrests. Concerning his January 22, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While standing on the corner in the Miami Over Town area[,] I was suddenly approached by [a] Miami Dade Police Officer. I was in possession [of] what appeared to be crack cocaine. I was arrested and charged with possession. No action was taken because it was not cocaine. It gave the appearance of an illegal substance. Concerning his March 31, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While traveling south on Biscayne Blvd and NW 69[th] Street[,] I was involved in an accident[.] I had a crack pipe and approximately two crack rocks in the vehicle. A search was conducted by Miami Dade Police, I was subsequently charged with possession and DWLS [;] no action was taken. Concerning his April 24, 1998, arrest for driving while license suspended/habitual offender, a felony, Petitioner explained in the Exemption Questionnaire: I was driving a young lady home who was feeling ill at the time. I was pulled over at a DUI check point on 175st [sic] NW 27th Avenue in Miami Gardens. My license was suspended during that time[.] [C]onsequently; [sic] I was arrested for DWLS and for a bench warrant[.] I really cannot remember what it was for. Eventually; [sic] I got my licenses [sic] reinstated. Concerning his May 29, 2008, arrest for failure to appear [capias] regarding a traffic offense, Petitioner explained in his Exemption Questionnaire: I was pulled over by Miramar police while going to the store. The officer informed me that there was an outstanding bench warrant for failing to appear. The charge was DWLS which was a 22 year old case. The charges [sic] was eventually dropped [;] case was dismissed. Petitioner also was questioned concerning a June 13, 1992, charge of homicide-willful kill with a weapon, which the Agency had originally listed as a disqualifying offense to employment in a position of trust. In an addendum to his Exemption Questionnaire, Petitioner explained: A guy I was hanging out with got into an argument with another individual, [sic] he produced a firearm. Consequently; [sic] he shot the guy in the leg and the guy feel [sic] to the ground. The shooter then pointed the gun at the guy’s head in an attempt to shot [sic] him in the head area. I then grabbed the shooter to stop him from shooting the other guy in the head. We then left the area in the shooter’s car. Metro Dade Police gave chase, the gun was thrown out the car [sic] consequently, the shooter pulled over. We were both taken into custody. The charged [sic] was eventually dropped down to a misdemeanor. The Agency reviewed all of Petitioner’s criminal records and determined that his 1992 charge of homicide-willful kill with a weapon had been reduced to accessory after the fact, a misdemeanor, for which adjudication of guilt was withheld on June 13, 1992. The Agency did not consider this conviction to be a disqualifying offense, but did consider it in the totality of the evidence it reviewed concerning Petitioner’s exemption from disqualification. Mr. Gerry Driscoll, the regional operations manager for the Agency’s Southeast Region, credibly testified that the Agency has a significant responsibility to a vulnerable population, many of whom lack competency, and are unable to communicate to others any negative or improper actions carried out by their caregivers. These individuals are often solely dependent on their caregivers, and are thus susceptible to exploitation. Mr. Driscoll noted that the Agency considers any prior criminal conduct involving violence or aggression with particular care when exercising its authority and discretion to grant exemptions for employment in positions of trust. In his written submission to the Agency, Petitioner did not specifically admit to causing any harm or injury to any victim. However, at the hearing, he admitted that he had caused injury to others with whom he associated during his period of addiction, especially his family, girlfriends, and children. Academically, Petitioner has accomplished a great deal. He has received the following post-secondary school degrees: an associate of arts degree from Miami Dade College (2010), a bachelor degree in Liberal Studies from Barry University (2013), and a masters in Social Work (“MSW”) (2016) from Barry University. He has been a lifetime member of the Delta Epsilon Iota Academic Honor Society since 2013. Petitioner’s résumé demonstrates an uninterrupted work history since 1997, with experience in the fields of social services, mental health, and substance abuse counseling, primarily involving individuals with mental illness and substance addictions. He was most recently employed with Dynamic Healthcare and has been providing substance abuse counseling and support to non-Agency clients with addiction issues. Petitioner submitted letters of reference and recommendations from: his current employer, Samuel E. Kelly, director of Dynamic Healthcare; Justice for Life, a psycho- education provider for the Misdemeanor Drug Court Program in Broward County; Better Way of Miami, Inc., an inpatient facility for drug and alcohol addiction; and Overtown Youth Center and John F. King, Attorney at Law, from 2008. Petitioner submitted additional training certificates that were considered by the Agency, including: The McShin Foundation Leadership Training Institute Peer Addiction Recovery Training; The Broward House HIV/AIDS Continuing Education (2014); HIPAA Basics Training (2013); Aggressive Control Training (2014); and Ethics Training (2014). Mr. Driscoll testified that the Agency also considered the following exemptions previously granted to Petitioner by other agencies: an employment waiver granted by DCF on October 10, 2008, to work with adults in mental health and substance abuse; an exemption from disqualification from employment under section 435.07, Florida Statutes, granted by the Agency for Health Care Administration on January 23, 2015; and another more recent exemption from DCF granted on April 29, 2016. At the hearing, Petitioner admitted he had suffered a “22-year addiction to a controlled substance.” He started drinking alcohol at age ten, and ended with crack cocaine. He received substance abuse counseling from two different providers: Better Way of Miami in 1995-1996, and Spectrum Programs in 2002- 2003. Moreover, he offered credible testimony that he has been clean from this addiction for 20 years and attends regular meetings of Narcotics Anonymous (“N.A.”) or Alcoholics Anonymous (“A.A.”) to this day. Mr. Driscoll’s position was that, despite there being some evidence of rehabilitation submitted with the Application for Exemption, and the subsequent request for hearing, and even the sincere testimony given by Petitioner at hearing concerning his addiction, this did not amount to sufficient evidence for him to recommend an exemption from disqualification. When considering all the evidence in its totality, he testified, the Agency did not conclude Petitioner had met his burden by the standard of clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s Application for Exemption from Disqualification. DONE AND ENTERED this 1st day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of February, 2017. COPIES FURNISHED: Curtis A. Jackson 2860 Northwest 187th Street Miami Gardens, Florida 33056-3131 Llamilys Maria Bello, Esquire Agency for Persons with Disabilities 201 West Broward Boulevard, Suite 305 Fort Lauderdale, Florida 33301 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact The Petitioner, A. Lincoln Schaub, was committed to the custody of the Department of Health and Rehabilitative Services by order of the juvenile court in Palm Beach County, Florida, on May 24, 1982, and placed in a drug program called "Here's Help" in Miami after his arrest on burglary charges. After two weeks at home prior to entering the program, Petitioner entered "Here's Help" on June 8, 1982. On June 21, 1982, Petitioner left the "Here's Help" program without consent or knowledge. On June 25, 1982, Petitioner's mother reported that Petitioner had returned home. Petitioner's parents subsequently transported him to detention. On July 17, 1982, he was arrested for burglaries allegedly committed while he was absent from the "Here's Help" program. The Department had a transfer hearing on July 29, 1982, and found that Petitioner had left "Here's Help" without consent. Based on that hearing, Petitioner was transferred to the Florida State School for Boys at Okeechobee. Petitioner left "Here's Help" because he had received demerits for a dirty locker and because he was not permitted to work. While absent from "Here's Help", Petitioner used narcotic drugs and was arrested for several burglaries. Petitioner evidenced a lack of self-discipline and an inability at this time to remain in a program voluntarily. Petitioner has a drug addiction problem.
Recommendation Having found that the Department's initial decision to place Petitioner in the Florida State School for Boys is in the Petitioner's best interest, it is so recommended. DONE and RECOMMENDED this 21st day of October, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Thomas Rolle, Esquire Assistant Public Defender 224 Datura Street West Palm Beach, Florida 33401 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Mr. & Mrs. Melvin Schaub Route 1, Box 642 (Loxahatchee) Pompano Beach, Florida 33060 Ms. Judith Hill, Supervisor Children, Youth and Families Program 111 Georgia Avenue West Palm Beach, Florida 33401 David H. Pingree, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS 1317 Winewood Boulevard Building One, Room 406 Tallahassee, Florida 32301
The Issue The issue is whether respondent’s law enforcement certification should be disciplined for the reasons cited in the administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, David G. Delisle, is a certified correctional officer, having been issued Correctional Certificate No. 67615 on August 31, 1992, by petitioner, Criminal Justice Standards and Training Commission (Commission). When the relevant events herein occurred, respondent was employed by the Jacksonville Sheriff’s Office as a correctional officer at the Duval County Pre-Trial Detention Facility (detention facility). In an administrative complaint filed on March 21, 1996, the Commission charged that (a) on May 30, 1995, respondent “engage(d) in an unprofessional relationship with an inmate of said facility, under his supervision;” (b) on May 30, 1995, respondent unlawfully “receive from an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling paper;” (c) on May 30, 1995, respondent unlawfully “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling tobacco;” (d) on June 17, 1995, respondent engaged in “an unprofessional relationship with an inmate of said facility, under his supervision;” and (e) on June 17, 1995, respondent “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: food.” Respondent disputed these allegations and initiated this proceeding. At final hearing, petitioner voluntarily dismissed item (c). During respondent’s tenure as a correctional officer at the detention facility in 1995, James M. Bonner and James Barbour were inmates under his supervision. In May of 1995, respondent approached inmates Bonner and Barbour and offered them tobacco products, including rolling paper, and other considerations if they would “beat up” certain inmates, including one Max Harrison, who were “causing trouble,” for respondent. The purpose of such action was to cause those inmates to transfer out of the cellblock thereby relieving respondent of having to deal with them. In the case of inmate Max Herring, respondent wanted Henning to leave the cellblock because he was allegedly a homosexual. Bonner and Barbour agreed to beat up Herring and other unidentified inmates. On June 19, 1995, Bonner, Barbour and several other inmates, tied inmate Herring to a bed with sheets and began striking him with “flip-flops” and shower shoes. Herring suffered abrasions and bruises on his body. Bonner confirmed that, at the request of respondent, several other inmates, none of whom were identified, were also beaten. In return for these favors, respondent provided inmates Bonner and Barbour with extra portions of jail food, extra food brought into the facility from outside establishments, magazines, cigarettes, rolling paper, and radio privileges. Although not specifically identified at hearing, certain "regulations" of the Jacksonville Sheriff's Office prohibit a correctional officer from furnishing such goods and services to inmates, and the introduction of illegal contraband into a jail violates state law. On at least one occasion, respondent received tobacco products and rolling paper from Bonner to give to other inmates. This also violated an unidentified facility rule as well as state law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order determining that respondent has failed to maintain good moral character and required by state law and that his law enforcement certificate be revoked.DONE AND ENTERED this 24th date of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission 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 Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. David G. Delisle 5350 Arlington Expressway, No. 3902 Jacksonville, Florida 32211
The Issue The issue to be resolved in this proceeding is whether the Board's termination of Respondent's employment should be upheld.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. The severity of the discipline is meant to emphasize the serious nature of drug use in relation to education, the students and the school, and its employees must set an example. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct warranting termination. The Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Board. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Respondent, Escambia County School Board, terminating the employment of Patricia Gadson. DONE AND ENTERED this 2nd day of March, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1999.
The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
