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 is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of November, 2011.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Petitioner should discipline Respondent's pari-mutuel wagering occupational license for allegedly preventing authorized personnel from taking a urine sample from a greyhound after a race in violation of Florida Administrative Code Rule 61D-6.005(9).
Findings Of Fact Petitioner is the agency responsible for regulating pari-mutuel wagering in the state. Respondent holds pari-mutuel wagering occupational license number 467790-1021. On August 4, 2004, Respondent was the trainer of record of two racing greyhounds named "Vonda Easy" and "Zito Easy." Both dogs competed in the fourth race of the matinee performance at Sanford-Orlando Kennel Club (the race). Vonda Easy finished first in the race. As the winner of a race, Vonda Easy was subject to mandatory drug testing pursuant to Florida Administrative Code Rule 61D-6.005(1). Veterinary Assistant Mr. Anthony Manfredi met Respondent at the detention enclosure in the finish area for the purpose of walking Vonda Easy and collecting a post-race urine sample. Respondent brought Vonda Easy and Zito Easy to the detention area and refused to walk Vonda Easy without Zito Easy. Respondent effectively interfered with the required urine collection from Vonda Easy by brining two dogs to the detention area and insisting that both dogs walk during the urine collection process in violation of Florida Administrative Code Rule 61D-6.005(9). Mr. Manfredi asked Respondent to give Zito Easy to someone else while Mr. Manfredi attempted to get a urine sample from Vonda Easy. Respondent told Mr. Manfredi that she was going to walk both dogs together since they were from the same kennel. Another person was not available at the detention area to hold Zito Easy during the urine collection from Vonda Easy. Mr. Manfredi asked Respondent a second time to only bring one dog with her during the urine sample collection process. He informed Respondent that having more than one dog in the urine sample collection area would interfere with his ability to collect a urine sample. Respondent refused to bring only one dog into the urine sample collection area. Rather, Respondent brought two greyhounds with her into the urine sample collection area and effectively prevented the collection of the required urine sample. The purpose of collecting a urine sample from a racing greyhound is to protect the health and welfare of the racing greyhound by testing to see if any impermissible substances are present in the body of the racing greyhound. The collection of a post-race urine sample from a racing greyhound also ensures that the medication rules of the state are being followed. Trainers, including Respondent, must comply with procedures and policies designed to ensure that the correct animal has been sampled and that there is little or no opportunity for any kind of contamination to occur at the test site. Trainer compliance ensures the integrity of the testing process. The procedures and policies for testing animals are set forth in the Greyhound Veterinary Assistant Handbook (Handbook). In relevant part, the Handbook prohibits an owner/trainer from walking two dogs at once in the finish area after a race. The urine sample collection area at the track is limited and does not easily accommodate two dogs. Walking two greyhounds at the same time may cause a sample to go uncollected due to having the presence of the other greyhound. The presence of two dogs increases the likelihood of contaminating a post- race urine sample. The presence of Vonda Easy and Zito Easy in fact prevented the collection of the mandatory urine sample.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Petitioner enter a final order finding that Respondent violated Florida Administrative Code Rule 61D-6.005(9), and impose an administrative fine of $1,000 pursuant to Subsection 550.105(5)(d), Florida Statutes (2004). DONE AND ENTERED this 29th day of June, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kimberly A. Hudson 5622 Tangerine Avenue, South Gulfport, Florida 33711 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified law enforcement officer, issued law enforcement certificate 233642. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Quest is an immunoassay test used to screen all samples. Any sample that is positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine. Respondent was terminated from his position as a law enforcement officer by the JSO. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of 60 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 3rd day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2011.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Since July 1993, and at all times material to this case, the Respondent has been licensed as a registered nurse holding Florida license number RN-2711762. On April 27, 1999, the Respondent was employed as a nurse by "Qwest, Inc." On April 27, 1999, the Respondent submitted to an employer-ordered drug screening at her workplace. The drug screen was conducted by use of a urine sample collected by Kenneth Stanley. Mr. Stanley owns and operates a business that specializes in collection of urine samples for purposes of drug screens. Mr. Stanley utilized the sample collection guidelines adopted by the "Florida Drug Free Workplace" program and the Florida Department of Transportation. Upon arriving at "Qwest, Inc." Mr. Stanley secured the rest room where the urine samples would be taken by placing blue dye in the toilet water and covering the faucet with a surgical glove secured with tape. Apparently, the purpose of the process is to prohibit the contamination of a urine sample by dilution. Mr. Stanley set up a table in the area outside the rest room to permit the processing of the samples and the completion of paperwork. Mr. Stanley called the Respondent into the area and verified her identification. He began to complete paperwork identifying the Respondent. Mr. Stanley removed a plastic cup from a sealed package that was opened for use in obtaining the sample from her. He provided the cup to her and asked her to enter the rest room, fill the cup to the proper level, set the cup on the sink counter, and then exit the rest room without washing her hands or flushing the toilet. Mr. Stanley retrieved the cup immediately after the Respondent notified him that she had completed the process and brought it back to his table. He placed the sample into a sealed tube and completed the paperwork identifying the sample as having been provided by the Respondent. The protocol utilized by Mr. Stanley requires the sample-provider to remain in the room until all paperwork is completed and the sample is properly sealed and packaged for shipment. The Respondent asserts that she left the room after providing the sample to Mr. Stanley and that Mr. Stanley failed to maintain appropriate security for her sample, permitting it to be contaminated by another employee. The evidence establishes that the Respondent remained in the area and was in the presence of the sample at all times during the collection, sealing and identification process. The Respondent was present when her sample was identified, processed, and packaged for shipment. There is no credible evidence that another employee of "Qwest, Inc." contaminated the Respondent's urine sample or that Mr. Stanley failed to maintain the proper identification of the Respondent's sample from the point of collection through the point of shipment. Mr. Stanley shipped the Respondent's sealed urine sample to Clinical Reference Laboratory (CRL) in Lenexa, Kansas. The sealed sample was received and processed by CRL, which similarly receives and processes approximately one million samples annually for purposes of drug screen testing. In performing urinalysis drug screen tests, CRL initially performs a preliminary test called an "enzyme immunoassay" on a portion of the sample. If the results of the preliminary test indicate the presence of a substance, CRL tests a second portion of the sample using a gas chromatography mass spectrometer to confirm the results of the first test and to quantify the specific amount of drug present in the urine sample. The enzyme immunoassay performed on the Respondent's urine sample indicated the presence of marijuana metabolites. Marijuana metabolites are a chemical substance contained in the Cannabis plant. Cannabis is a controlled substance pursuant to Chapter 893, Florida Statutes. The gas chromatography mass spectrometer test performed on the Respondent's urine sample confirmed the presence of marijuana metabolites and indicated the specific amount of drug present in the urine sample as 28 nanograms of marijuana metabolites per milliliter of urine. Based on the results of the testing at CRL, the evidence establishes that the Respondent's urine sample taken on April 27, 1999 tested positive for marijuana. There is no evidence that the Respondent had a prescription or a valid medical reason for using marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent, imposing a fine of $250 and requiring the completion of an appropriate continuing education course related to substance abuse in health professions. The continuing education course shall be in addition to those continuing education requirements otherwise required for licensure. Further, the Final Order should further require that the Respondent participate in an evaluation by the Intervention Project for Nurses (IPN) within 60 days of the issuance of the Final Order, and comply with the treatment recommendations, if any, made by the IPN, or suffer suspension of licensure until compliance with this requirement is established. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Elizabeth A. Hathaway, Esquire Reginald D. Dixon, Esquire Agency for Health Care Administration General Counsel's Office 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Annie Scotto Downs 8708 52nd Street North Tampa, Florida 33617
The Issue By three separate and substantially identical Administrative Complaints each of the Respondents have been charged with violating specified statutory and rule provisions as a result of their having caused to be distributed a certain advertisement for chiropractic services. The Respondents admit that they caused the advertisement to be distributed, but deny that the advertisement constitutes a violation of any statutory or rule provision.
Findings Of Fact Based on the stipulations of the parties, on the admissions of the Respondents, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact. At all times material to this case the Respondent Stephen A. Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003555. At all times material to this case the Respondent Gary Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003660. At all times material to this case the Respondent Steven Paul Rosenberg was and is a licensed chiropractic physician, having been issued license number CH 0003784. At all times material to this case the address of each of the three Respondents was and is 9721 South Dixie Highway, Kendall, Florida. The advertisement which is the subject matter of these cases was distributed in Dade County, Florida, as an insert in a publication known as "The Flyer". The subject advertisement was placed by or at the direction of, or was acquiesced in, by all three of the Respondents, Stephen A. Jacobson, Gary Jacobson, and Steven Paul Rosenberg. Stephen A. Jacobson and Gary Jacobson initiated and caused the subject advertisement to be placed and Steven Paul Rosenberg was aware of the contents of the advertisement and acquiesced in its publication. The subject advertisement was an advertisement for chiropractic services, specifically an advertisement for the chiropractic services of the Respondents, each of whom was specifically named in the advertisement. At the time of the distribution of the subject advertisement each of the Respondents practiced at the Sunset Chiropractic Clinic located at 9721 South Dixie, Highway Kendall, Florida. The subject advertisement was distributed approximately two months after an incident in which bottles of Tylenol were found to be contaminated with deadly amounts of cyanide, which contamination resulted in at least one death. The incident involving cyanide contamination was known to all three of the Respondents as well as to the general public. 1/ The subject advertisement contains a prominent picture of a medicine bottle with a skull and crossbones, in conjunction with text urging the reader to try chiropractic and avoid medicine. The predominate theme of the advertisement is that medicine has many dangerous side effects, that one should avoid medicine because it will jeopardize one's health, and that medicine contains cyanide or acid. The subject advertisement contains the following specific statements: "Medicine Has Many Dangerous Side Effects" and "DON'T JEOPARDIZE YOUR HEALTH BY REACHING FOR A BOTTLE." In what turns out to be a statement about chiropractic, the opening text of the advertisement proclaims in large bold letters "IT DOES NOT CONTAIN CYANIDE OR ACID". By the juxtaposition of the picture of a medicine bottle besmirched with the skull and crossbones and the language of the text that follows, the clear import of the advertisement is that medicine is dangerous because it contains cyanide or acid. 2/ The subject advertisement is likely to appeal primarily to a lay person's fears, ignorance or anxieties regarding his state of health or physical well-being. Near the bottom of the subject advertisement are the words "Sunset Chiropractic Clinic." Beneath those words, and in smaller print, are the names of each of the three Respondents. Each name is preceded by the abbreviation "Dr.," but none of the names are followed by the abbreviation "D.C.," or the words "Chiropractor" or "Chiropractic Physician," or by any other designation specifically identifying the Respondents as chiropractors. Thus, the subject advertisement failed to conspicuously identify the Respondents as chiropractors. 3/
Recommendation For all of the reasons set forth above, it is recommended that the Board of Chiropractic Examiners enter a Final Order which would: Find each of the Respondents guilty of all of the violations charged in the Administrative Complaints; Assess a $1,000.00 administrative fine against the Respondent Stephen A. Jacobs, D.C.; Assess a $1,000.00 administrative fine against the Respondent Gary Jacobson, D.C.; and Assess a $1,000.00 administrative fine against the Respondent Steven Paul Rosenberg, D.C. DONE and ORDERED this 29th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 29th day of November, 1984.
The Issue Whether Respondent should be terminated from employment with Petitioner for failing a drug screen.
Findings Of Fact Respondent, Diane O'Connor, is a fifty-one-year-old woman who was employed with the Escambia County School Board as a school bus driver. She has been a school bus driver for several years. As part of her employment in a safety-sensitive position, Respondent was generally aware of the Board's Drug Free Workplace Policy, Escambia County School Board Rule 6Gx17-2.33, and that she was subject to random drug testing. In fact, Respondent had been subjected to five or six random drug tests in the past. Respondent's past tests were negative since Respondent does not use marijuana or other illegal drugs. In 1999, Respondent began taking Hemp Seed Oil after she experienced chest pains at Baptist Hospital in Pensacola because she was concerned for her health. Mr. Kevin Kerish, a friend of Ms. O'Connor's recommended that she take Hemp Seed Oil for her general health. He said it made him feel better. Respondent purchased her first bottle of Hemp Seed Oil in Pensacola. However, all subsequent bottles were acquired from a distributor in California. Hemp Seed Oil is a food product. It is not a controlled substance. There was no evidence to show and it is highly doubtful, that Hemp Seed Oil has any psycho-active properties. On April 26, 2000, Respondent was subjected to a random drug test on her urine. The urine sample was split into two separate specimens. On May 3, 2000, she was informed by Dr. James Barnshaw, the Medical Review Officer, that the urine specimen she provided was reported as positive for marijuana. The sample contained a concentration for 9-THC (11-nor-delta9-tetrahydrocannabinol) of 35 ng/mL (nanograms per milliliter). 9-THC is the major metabolite of the active ingredient in marijuana. It is also a metabolite for legal hemp products. Hemp is one of a variety of plants that originates from Cannabis Sativa (commonly called Marijuana). In one form cannabis produces hemp fiber, an ancient source of rope. Currently, hemp fiber is a practical source of fabric from which many clothing accessories can be made. Additionally, various health food products derived from hemp are commercially available. In particular, Hemp Seed Oil, like the oil being taken by Respondent, has a very high content of polyunsaturated fats (essential amino acids and fatty acids). These fats are used to maintain a healthy lifestyle and are used in the treatment of a variety of diseases. Neither hemp fiber or Hemp Seed Oil contains significant amounts of any substance with psychoactive properties. During her phone interview with Dr. Barnshaw on May 3, 2000, Respondent denied using marijuana. Through the questioning of Dr. Barnshaw she revealed that she had been taking Hemp Seed Oil since August or September 1999. Dr. Barnshaw told Respondent that Hemp Seed Oil can cause a positive test result for THC and was possibly the cause of her positive test result. Dr. Barnshaw notified the Escambia County School District of Respondent's test result on May 4, 2000. The explanation offered by Respondent for the positive test result was not acceptable to the School Board. However, other than to maintain a strict policy on drugs, no explanation for the School Board's or Medical Review Officer's reasoning on rejecting Respondent's explanation was introduced into evidence. The bottle of Hemp Seed Oil produced by Respondent at the hearing contained a warning in very small print that ingestion of the Oil could cause a positive drug test. Respondent neither saw nor read that warning until after she tested positive. A friend actually pointed the label warning out to her. On May 9, 2000, Respondent requested that the split urine specimen be analyzed. On May 22, 2000, the original result was re-confirmed positive for marijuana with metabolite concentrations at 63 ng/mL9-THC. Respondent ceased consumption of the oil immediately upon notification of the positive test result and upon being informed that the oil may have been its cause. On May 10, 2000, Respondent was given a Notice of Disciplinary Action which specified the charges against her as violating the employer's Drug Free Workplace Policy (Rule 6Gx17-2.23) and committing misconduct involving the unlawful use of a controlled substance. It further notified her that she would be dismissed on May 17, 2000. At the May 16, 2000, School Board meeting, the Escambia County School Board terminated Respondent, effective May 17, 2000. Dr. Palm is a pharmacology professor at Florida A & M University. He is an expert in his field. Based on his expert opinion, the ingestion of 2-3 tablespoons of Hemp Seed Oil (30-45 mL) on a daily basis will cause a positive test result for THC in the amounts found in Respondent's urine samples. The Board has a non-mandatory policy that allows an employee to notify management of any prescription drugs or other medications an employee is taking that could inhibit their ability to drive. The policy does not cover substances which may impact a drug test. Respondent was aware of the Board's policy only with respect to prescription drugs. Respondent's consumption of Hemp Seed Oil never had any affect on her ability to drive. Respondent never thought the oil could affect a drug screen. Therefore, she never reported her use of Hemp Seed Oil to anyone. Since Hemp Seed Oil does not have any affect on a person's ability to drive, it is not a substance covered by the Board's reporting policy. Moreover, the Board's reporting policy is non-mandatory. Therefore, Respondent did not violate the Board's reporting policy. Respondent's positive drug test was based upon consumption of Hemp Seed Oil, not marijuana or any other controlled substance. The Board's rule prohibits use of controlled substances and substances which may affect a person's ability to drive. Except in cases of deliberate tampering, it does not prohibit use of substances which may affect a drug test. The driver's manual states that: Any employee testing positive for a controlled substance or found to have performed a safety-sensitive function with a BAC of 0.04 or greater will be terminated from employment with the School district. However, the manual is not a rule and was not shown to be part of Rule 6Gx17-2.33. Since Respondent did not violate Rule 6Gx 17-2.33, she should be reinstated with back-pay and benefits.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the charges against Respondent should be dismissed and she should be reinstated with full back-pay and employment benefits plus interest from the date of May 17, 2000. DONE AND ENTERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Thomas W. Brooks, Esquire Meyer & Brooks 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jim May, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32501 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
