The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional 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 the case are whether the licensee, Gene Ash, committed the violations described in the decision of the Judges/Stewards of Pompano Park Harness Track rendered on October 18, 1993, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the administration and regulation of the pari-mutuel wagering industry in the state of Florida pursuant to Chapter 550, Florida Statutes, and the rules promulgated thereunder. Respondent is a trainer of standardbred harness racing horses. Petitioner licensed Respondent to work as a trainer at pari-mutuel wagering facilities within the state of Florida pursuant to pari-mutuel occupational license number 0033544- 1081. Respondent has held such license at all times material to this proceeding. On August 20, 1993, Respondent was the trainer of record for Coast Express. Coast Express is a standardbred racing horse participating in harness racing at Pompano Park Harness Track (Pompano). Pompano is the holder of a valid permit to conduct harness racing for the purpose of conducting pari-mutuel wagering in Broward County, Florida. On August 20, 1993, Coast Express ran in the eighth race at Pompano. Coast Express won that race posting a time of 157.1, an individual best time for the horse. After the eighth race on August 20, 1993, Coast Express was taken to the detention barn at Pompano for collection of a urine sample to be analyzed by Petitioner's laboratory. Daniel Gogan, a groom working at Pompano, took Coast Express to the detention barn. Walter Mazur, Petitioner's veterinary assistant working in the detention barn, collected urine sample #908605 from Coast Express at 10:11 p.m. Daniel Gogan signed the sample card but Mr. Mazur was the only person in the stall at the time the sample was collected. Coast Express was the only horse under the care of Walter Mazur during the time the horse was in the detention area for collection of a urine sample. Samples are collected by placing the race horse in a stall with top and bottom doors. Generally, the Petitioner's veterinary assistant is the only person in the stall with the race horse. However, the trainer, or his groom, may observe the collection of the sample by watching through an open door. Trainers, or their grooms, are only allowed into the stall if invited by the veterinary assistant. After a sample has been collected, it is sealed and the sample tag is filled out. The sample tag records: (1) the date; (2) the sample number; (3) the horse's name, color, sex, and age; (4) the race in which the horse ran and its finishing position; (5) the track's name; (6) the name(s) of the horse's owner and trainer; and (7) the horse's tattoo number. The tag has three signature lines. The first line is for the veterinary assistant who collected the sample. The second line is for a witness to the sealing of the sample. The third line is for an owner's witness. The time required to collect a sample and seal it in its container is approximately two to five minutes. The sample tag for sample #908605 indicates that the sample was taken from Coast Express on August 20, 1993. The card shows that Coast Express finished first in the eighth race at Pompano. The card indicates that the horse was owned by Coast Express Stable and the trainer is Respondent. The card bears the signatures of: (1) Walter Mazur, veterinary assistant who took the sample; (2) Jim Meirs, supervisor of the detention area who witnessed the sealing of the sample; and (3) Daniel Gogan, witness for the owner. After the sample is collected it is stored in a locked freezer until it is packed for shipping to the Petitioner's laboratory in Tallahassee, Florida, the next working day. On August 23, 1993, Walter Mazur packed sample number 908605 into a sealed and locked box which was shipped to the Petitioner's laboratory via U.S. Air Mail. The record indicates that a total of sixteen samples were taken on August 20, 1993. Fourteen of these samples were urine samples. The record is not clear whether sample numbers 908607 and 908608 were blood only or urine only or both. Neither of them were logged on Petitioner's laboratory Report of Samples Logged dated August 23, 1993. There is no explanation in the record for a discrepancy between the number of samples taken on August 20, 1993 and the number of samples received by the laboratory on August 23, 1993. In any event, there is clear and convincing evidence that sample number 908605 was one of fourteen (14) urine samples received in Respondent's laboratory on August 23, 1993, with its seal intact in the sealed and locked box. On its receipt in the laboratory, sample number 908605 was assigned laboratory number 58511F. Petitioner's Bureau of Laboratory Services conducts screening tests of all samples received for analysis unless there is an insufficient sample or the sample is not properly secured. The first screening tests performed on laboratory sample number 58511F were a thin layer chromatography (TLC) analysis and an immunoassay screening known as an ELISA analysis. Both of these tests indicated that the sample was "suspicious" of containing a drug in the promazine family. When a sample is deemed suspicious by one of the screening tests, it is sent to the confirmation section of the laboratory for testing on an instrument called a gas chromatograph/mass spectrometer (GC/MS or GC/Mass Spec). This instrument is used to confirm the presence of metabolites of drugs which are present in the urine sample. In the instant case, the test was qualitative only even though the state chemists could have performed a quantitative analysis. Quantitative analysis is not done when the sample is "suspicious" of containing a drug in the promazine family because any amount of such drug in a urine sample is prohibited. The state laboratory file contains a copy of a Mass Spectrometry Method Sheet dated August 31, 1993, which states that the initial GC/MS test could not confirm for any promazine. The file also contains an undated hand written document entitled Suspicious HU Promazine Sample which states that, after ion-pair screening, the IP3 plate did not reveal promazines where they are normally indicated. These documents record the results of some of the initial screening and testing, and in no way detract from the reliability of the final testing and analysis. On September 9, 1993, Carrie Delcomyn, Petitioner's Confirmation Chemist II, requested that David Tiffany, Petitioner's SA/MD Chemist Administrator, run appropriate ELISA screening on the two (2) hour and four (4) hour promazine administrations, numbers 45595B and 45596B, because they were to be used for a possible confirmation of a promazine metabolite seen in the suspect sample. That same day, David Tiffany responded that promazine was not detected using the IDS promazine assay. Mr. Tiffany's response does not imply that the subsequent testing for confirmation of a promazine metabolite in the suspect sample failed to identify 3-hydroxypromazine. In the final analysis, testing and retesting of laboratory sample number 58511F with the GC/MS confirmed the presence of 3-hydroxypromazine, a metabolite of promazine (a tranquilizer and class 3 drug). Someone would have to administer promazine to a horse for it to produce a urine sample containing 3-hydroxypromazine. A chemist administrator reviews the file of a positive sample to ensure the integrity of the chain of custody before a sample is conclusively labeled "positive." A proper chain of custody is an integral part of the positive sample review process. In this case, David Tiffany reviewed the file for sample number 58511F and found it to be in proper order. On October 22, 1993, a Report of Positive Results was generated by Patrick T. Russell, Petitioner's Bureau Chief, Bureau of Laboratory Services. This report was sent to William E. Tabor, Director of the Division of Pari- Mutuel Wagering, and states that sample number 908605 (laboratory number 58511F) contained 3-hydroxypromazine (a tranquilizer and Class 3 drug). The record contains no explanation for the discrepancy in the date of the report and the date the Judges/Stewards issued their ruling on October 18, 1993. On November 3, 1993, Respondent requested a split sample analysis pursuant to Section 550.2415(5), Florida Statutes and Rule 61D-1.010, Florida Administrative Code. The split sample was sent to and analyzed by Center for Tox Services, an independent laboratory. Testing of the split sample confirmed the result of the state laboratory. A letter dated November 17, 1993, from the independent laboratory states that: . . .the laboratory was able to detect the 3-OH promazine utilizing both ELISA and GC/MS techniques. We had no difficulty in detecting the substance using GC/MS. The primary reason for easy detection was due to the fact that the metabolite was present at a concentration that exceeded our detection limit or met our criteria for full scale analysis. There is no doubt that 3-OH promazine was present in the sample we analyzed. The GC/MS operator did not set-up his analysis to quantitate the amount of 3-OH promazine in the urine sample. It was not requested. The above quoted passage from the Center for Tox Services letter clearly does not contain any implications as to the quantity of promazine administered to Coast Express. The testimony of Dr. Mark Phillips, the horse's veterinarian, implied that a quantity of promazine administered could be established by virtue of the positive tests reported by the state and independent laboratories. His opinion regarding the quantity and effect of a dosage of promazine which would test positive on a GC/MS instrument is rejected because it is based on technology which is no longer up to date with current testing standards. Additionally Dr. Phillips testimony is contrary to the testimony of Petitioner's expert, David Tiffany, which is more persuasive. Promazine is a drug used as a tranquilizer. It is possible for a horse to race well after having been administered a very small dose of promazine. This would be particularly true if the horse had a history of being "hot." "Hot" is a term commonly used in the standardbred horse racing industry for a horse that is nervous and difficult to handle. A very small dose of promazine could enhance the performance of a "hot" horse by calming it down. Under those circumstances, the horse might not exhibit behavioral changes which would be noticeable, i. e. the horse might still appear to be "hot." On the other hand, a normal dose of promazine would cause a horse to be too sluggish to race. Coast Express was typically a "hot" horse. On August 20, 1993, there was no discernible difference in his behavior. He was "hot", hard to handle, and the opposite of calm or sluggish. It was apparent that Coast Express had not been given a normal tranquilizing dose of promazine. However, there is clear and convincing record evidence that some amount of promazine was in his system on August 20, 1993, which could have enhanced his performance and enabled him to set a record time of 157.1. Respondent's experts testified that Coast Express's individual best time of 157.1 on August 20, 1993, is consistent with his immediate racing history of 157.3 on August 13, 1993, and September 3, 1993. This testimony is rejected to the extent it implies that the horse's system was free of promazine on August 20, 1993, because it is contrary to more persuasive evidence. Promazine is a prescription drug. Dr. Mark Phillips, Coast Express's veterinarian, testified that he never prescribed promazine for the horse. Promazine is normally fed to a horse. Coast Express is a very picky eater and probably would not eat feed with a drug in it. However, promazine can also be injected. There is no evidence that Respondent or anyone under his control administered promazine to Coast Express. There is no evidence that either of the owners, Nellie Hammel and Fred Segal, administered the drug. However, record evidence indicates that for a period of time on race day, Coast Express was left unsupervised. Someone could have given the drug to Coast Express during that time. Respondent presented positive testimony relative to his character and good reputation in the harness racing industry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Petitioner issue a Final Order finding that Respondent, as trainer of record for the horse Coast Express, is responsible for a violation of Section 2415(1)(a), Florida Statutes, occurring on August 20, 1993, at Pompano. Additionally, the undersigned recommends that said Final Order: (1) suspend Respondent's occupational license for forty-five (45) days; (2) deny Respondent use of the Pompano stable area during his suspension; (3) declare any horse Respondent owns or trains ineligible to race during his suspension; (4) redistribute the purse of $2,750 won in the subject race; (5) disqualify and replace Coast Express in the subject race; and (6) disallow Coast Express from holding the lifetime mark of 157.1 RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of February, 1995. SUZANNE F. HOOD, Hearing Officer 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 23rd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5018 The following constitute specific rulings, pursuant to Section 120.59(2) Florida Statutes, on the parties' respective proposed findings of fact: Petitioner's Proposed Findings of Fact: 1-7 Accepted in substance and incorporated in paragraphs 1-7 pursuant to the parties' stipulation of facts. 8-20 Accepted in substance and incorporated in paragraphs 8-20. Accepted in paragraph 23. Accepted in paragraph 24. 23-24 Accepted in paragraph 25. Accepted in paragraph 26. Accepted in paragraph 27. Accepted in paragraph 29. Accepted in paragraph 30. Accepted in paragraph 28. Respondent's Proposed Findings of Fact: 1-5 Accepted in paragraphs 1-5. Accepted in part in paragraph 6 and rejected in part in paragraph 32. Except for subordinate information, accepted in paragraphs 7-9 and 15-16. Accepted in paragraphs 19 and 21-22. 9-10 Not included in Respondent's proposed findings of fact. Accepted in paragraph 20. Accepted in paragraph 27. Accepted in paragraphs 30-31 as modified. Accepted in part in paragraph 31 but last sentence rejected as contrary to more persuasive evidence. Accepted in paragraph 26 as modified. Accepted in paragraphs 33-34. Accepted in paragraph 36 for consideration only as to appropriate discipline. COPIES FURNISHED: Joseph M. Helton, Jr. Senior Attorney Dept. of Business & Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tim A. Shane, Esquire 2455 East Sunrise Blvd. Suite 905 Fort Lauderdale, Florida 33304 George Stewart, Acting Secretary Morthwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
