Findings Of Fact The following findings of fact, stipulated to by the parties, are hereby accepted: NHL is a Delaware corporation headquartered in La Jolla, California and is registered to do business in Florida. It provides clinical laboratory services to physicians and their patients. Examples of Florida public entities for whom NHL has rendered services, include the Florida Department of Health and Rehabilitative Services, the University of Florida and health services units in various Florida counties, such as Dade and Broward. On or about December 18, 1992, NHL was convicted of a public entity crime as described within paragraph 287.133(1)(g), Florida Statutes. This conviction occurred in the United States District Court, Southern District of California. (See Exhibits "A", "B", "C", "D", "E", "F", and "FF") The NHL conviction arose out of investigations initiated by the United States Justice Department in conjunction with the Inspector General and the U.S. Attorney's Office for the Southern District of California. On February 8, 1993, the Department, by letter, informed NHL of the Department's duty to conduct an investigation pursuant to paragraph 287.133(3)(c), Florida Statutes, into the circumstances involving NHL's conviction. (See Exhibit "G") Pursuant to subparagraph 287.133(3)(e)1., Florida Statutes, the Department shall investigate and determine whether good cause exists to place NHL on the Convicted Vendor List. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor on the Convicted Vendor List. (See Exhibit "H") Subsubparagraph 287.133(3)(e)3.b., Florida Statutes, establishes "[t]he nature and details of the public entity crime" as a factor mitigating against placement on the Convicted Vendor List. The Plea Agreement entered into between the United States and NHL contains a Stipulated Statement of Facts between the parties. (See Exhibit "A") Subsubparagraph 287.133(3)(e)3.c., Florida Statutes, establishes "[t]he degree of culpability of the person or affiliate proposed to be placed on the Convicted Vendor List" as a factor mitigating against placement on the Convicted Vendor List. NHL began investigating the medical efficacy of a test for high- density lipoprotein cholesterol (HDL) in September, 1978. NHL continued its study and in 1987 placed the HDL on NHL test requisition forms. A copy of the HDL NHL Information Pamphlet, the HDL chronology, and the synopsis of selected HDL cholesterol scientific papers are hereto attached as Exhibits "I", "J", and "K". NHL began investigating the medical efficacy of a serum ferritin test in place of serum iron when a number of NHL clients had inquired in June of 1988 as to whether NHL could offer the test on chemistry profiles. NHL immediately began investigation and study of serum ferritin. NHL continued its study and concluded that the serum ferritin test was a more valuable test and in June 1989 placed the test on NHL test requisition forms. A copy of the Serum Ferritin NHL Information Pamphlet, the serum Ferritin Chronology, the selected Serum Ferritin Scientific Papers, the Serum Ferritin Medical Perspective, and the US News article titled "Iron and Your Heart" are hereto attached as Exhibits "L", "M", "N", "O", "P", and "Q". NHL did send in April 1987 over 30,000 medical information packets with an accompanying letter to all physician clients announcing the addition of the HDL test to the SMAC chemistry profile. The accompanying letter clearly explained that the HDL would be automatically performed in conjunction with all SMAC chemistry profiles. It disclosed that physician and patient charges would be adjusted to reflect the addition of the HDL test. (See Exhibit "R") NHL did send in June 1989 over 40,000 medical information packets with an accompanying letter to all physician clients announcing the addition of the serum ferritin test to the SMAC chemistry profile. The accompanying letter clearly explained that NHL would now automatically perform the serum ferritin test as part of the basic chemistry profile. It disclosed that physician and patient charges would be adjusted to reflect the addition of the serum ferritin test. (See Exhibit "S") Subsubparagraph 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. As a result of its conviction, NHL has been directed and has agreed to pay $100,000,000 as recoupment to the Federal Government, $65,000,000 paid with balance paid in quarterly installments of $4,000,000 each plus interest through the third quarter of 1995. A $1,000,000 fine and approximately $10,000,000 has been paid to various state Medicaid agencies. (See Exhibits "A", "D", "E" and "F") NHL has timely paid all civil and criminal damages owed to the Federal Government as they have become due. (See Exhibits "E" and "F") NHL entered into an Agreement Not to Terminate with Department of Health and Rehabilitative Services. NHL paid to the Florida Medicaid Program the sum of $1,470,917.00, representing all ferritin payments made to NHL by the Florida State Medicaid Program. NHL timely paid said amount. (See Exhibit "T") NHL was not required to post any bond in relation to any charges herein mentioned due to the good faith effort exhibited by NHL. (See Exhibit "A") Subsubparaghraph 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. NHL cooperated with the federal authorities in connection with the investigation as described in the Plea Agreement. (See Exhibit "A") NHL produced documents requested from the Federal Government during the investigation, further, made employees available for interview, provided analyses of various charges, and voluminous scientific documentation to prove the efficacy of the tests involved. NHL negotiated in good faith with the Federal Government and with the various state Medicaid programs to reach a resolution with all parties concerned. NHL fully cooperated with the Department in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Subsubparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. Individuals convicted of wrongdoing which gave rise to the pleas in question are no longer employed by NHL. As described in paragraph 5 of the Plea Agreement: NHL agrees that Robert E. Draper (former President) and Vance Randy White (former Vice President) will not be considered for reemployment or consulting purposes by NHL. (See Exhibit "A") On December 16, 1992, both Robert E. Draper and Randy White resigned from NHL. NHL accepted the resignations. (See Exhibits "U" and "V") Subsubparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. NHL has created a position of Director of Corporate Compliance. The position is held by Executive Vice President and General Counsel, James G. Richmond, who reports directly to the CEO and the Board of Directors. NHL's Board of Directors has adopted a Corporate-wide Compliance Program. Included within this program are training programs for all NHL employees. (See Exhibit "W") NHL has an active Ethics Compliance and Training Program. NHL has made both past and present efforts to ensure the highest standard of business conduct by NHL and its employees, as shown within NHL Code of Business Conduct. (See Exhibit "X") NHL distributed to all Regional Directors, Controllers, Sales Managers, Sales Representatives, Client Service Managers and Client Service Coordinators, a memorandum regarding prohibited client incentives in an effort to further police any improper activities. (See Exhibit "Y") Each physician/client was sent a letter along with a new test requisition form which clearly informed the physician of his ability to order stand-alone Automated Chemistry Panels. (See Exhibits "R", "S", "Z", and "AA") Each physician was sent information which clearly explained the billing practices to Medicare and Medicaid. (See Exhibits "R", "S", "Z", and "AA") Subsubparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. NHL has not received pardon or clemency in any jurisdiction as it relates to its guilty plea. However, due to NHL's cooperation in the Plea Agreement and Settlement, including all the states concerned, NHL has not been nor will be suspended or debarred from Medicare or any Federal program or any state Medicaid program. (See Exhibit "T") Subsubparagraph 287.133(3)(e)3.k., Florida Statutes, establishes "[a]ny demonstration of good citizenship" as a mitigating factor. NHL has in the past and continues to provide gratuitous laboratory testing services to indigent patients in Florida. A contract exists between NHL and HRS wherein NHL provides approximately $3,000 per month gratuitous lab work for indigent patients. (See Exhibit "BB") NHL has in the past and continues to disseminate gratuitous medical literature on the efficacy of NHL testing. (See Exhibit "CC") After Hurricane Andrew destroyed much of South Florida, NHL provided six to seven weeks of gratuitous laboratory service, supplies and a computer printer so that doctors could receive laboratory results as quickly as possible. (See Exhibit "DD") This Joint Stipulation provides a full and complete factual basis for determining whether NHL should be placed on a Convicted Vendor List. In light of the facts of the criteria set forth in subparagraph 287.133(3)(e)3.a-k., Florida Statutes, there are no disputed issues of material fact between Department and NHL which would require a formal hearing.
The Issue The issues to be determined in this case are whether Respondents should pay the administrative penalty, investigative costs, and attorney’s fees and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (the “Department”) as set forth in the Final Amended Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment.
Findings Of Fact The Parties The Department is the administrative agency of the state of Florida having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Germain is a licensed Florida attorney. From May 2006 to January 2013, Germain was the record owner of the real property at 1120 West Main Street, Leesburg, Lake County, Florida (the “Germain property”). Leesburg’s is an active Florida corporation that was incorporated in January 2013 by Germain. Germain is Leesburg’s sole corporate officer and sole shareholder and has managerial authority over the Germain property. John Doe 1-5 is a placeholder designation used by the Department for the purpose of covering all potential entities to which Germain might transfer the property. No other such entity materialized. Background A gas station was operated on the Germain property continually from the 1920s through the late 1980s. During the 1980s and perhaps for a longer period, C.E. Griner operated the gas station under the name Griner’s Service Station. Griner’s Service Station had at least three underground storage tanks (“USTs”) used to store leaded and unleaded gasoline. In 1989 or 1990, Griner ceased operation of the gas station and the USTs were filled with concrete and abandoned in place. The Germain property has not been used as a gas station since that time. In 1990, the Department inspected the Germain property and prepared a report. The inspection report noted that the USTs at the Germain property “were not cleaned properly prior to filling with concrete.” The report also noted that the tanks were not properly abandoned in place. No evidence was presented to explain in what way the tanks were not properly abandoned, or to indicate whether the Department took any enforcement action based on this report. In 1996, Gustavo Garcia purchased the Germain property from Griner. In May 2006, Germain purchased the property from Garcia. Another gas station, operating for many years under several names (now “Sunoco”), is located at 1200 West Main Street, across a side street and west of the Germain property. Since 1990, one or more discharges of petroleum contaminants occurred on the Sunoco property. There were also gas stations at the other two corners of the Main Street intersection, but no evidence was presented about their operations or conditions. In March 2003, apparently as part of a pre-purchase investigation, testing was conducted at the Sunoco property that revealed petroleum contamination in the groundwater. Soil contamination was not reported. S&ME, Inc. (“S&ME”), an environmental consulting firm, subsequently submitted a discharge report to the Department’s Central District Office in Orlando. Later in 2003, S&ME conducted an initial site assessment for the Sunoco property. In the report it produced, S&ME noted that it found concentrations of petroleum contaminants in the groundwater that were above the Department’s Groundwater Cleanup Target Levels (“GCTLs”). The concentrations exceeding GCTLs were in samples taken from the eastern side of the Sunoco property, closest to the Germain property. In 2004, S&ME completed a Templated Site Assessment Report for the Sunoco property. Groundwater samples from the eastern portion of the Sunoco property again revealed petroleum contamination exceeding GCTLs. Garcia, who owned the Germain property at the time, allowed S&ME to conduct soil testing on the Germain property. The soil samples were taken by direct push methods and were tested with an organic vapor analyzer (“OVA”), which revealed toluene, ethylbenzene, total xylenes, naphthalene, 1-methyl naphthalene, and total recoverable petroleum hydrocarbons exceeding the Department’s Soil Cleanup Target Levels (“SCTLs”). In 2005, another private environmental consulting firm, ATC Associates, Inc. (“ATC”), performed a Supplemental Site Assessment on the Sunoco property and produced a report. As part of its assessment, ATC installed three monitoring wells on the Germain property and collected groundwater samples. These groundwater samples revealed petroleum constituent concentrations that exceeded GCTLs and were higher than concentrations found in groundwater samples taken under the Sunoco property. Both the 2004 and 2005 site assessment reports concluded that the groundwater in the area flowed from the southeast to the northwest; that is, from the Germain property toward the Sunoco property. Germain referred to a figure in S&ME’s 2004 report that he claimed indicated a southeasterly flow of groundwater from Sunoco toward the Germain property. However, a preponderance of the evidence establishes that groundwater flow in the area is generally northwesterly from the Germain property toward the Sunoco property. Based on the results of its testing, ATC concluded in its site assessment report that the groundwater contamination on the eastern portion of the Sunoco property had migrated from the Germain property. ATC also took soil samples from the Germain property. It screened the soil samples with an OVA and reported petroleum contamination exceeding the Department’s SCTLs. Petroleum contamination in soil typically does not travel far horizontally. It remains in the vicinity of the source. Therefore, the soil contamination found on the Germain property indicates an onsite source of the contamination. All of the assessment reports were filed with Seminole County, presumably with the Department of Public Safety, Emergency Management Division, which is the local entity with which the Department contracted to inspect and manage petroleum facilities in the area. These reports were public records before Germain purchased his property. A June 2005 Memorandum from Seminole County informed Bret LeRoux at the Department’s Central District Office that ATC’s 2005 site assessment report indicated the Germain property was the source of petroleum contamination. The Memorandum recommended that the Department contact the owner of the property about the contamination. The Memorandum was filed at the Department. After the Department received the Memorandum, it requested and received the site assessment reports from Seminole County. The Department did not notify Garcia or the public about the contamination in 2005. The Department did not notify Germain about the contamination until August 2007. All Appropriate Inquiry The principal factual dispute in this case is whether Germain undertook “all appropriate inquiry into the previous ownership and use of” the Germain property before purchasing it, as required by section 376.308(1)(c)1/: [A person acquiring title to petroleum- contaminated property after July 1992] must also establish by a preponderance of the evidence that he or she undertook, at the time of acquisition, all appropriate inquiry into the previous ownership and use of the property consistent with good commercial or customary practice in an effort to minimize liability. Before he purchased the Germain property in 2006, Germain knew that it had been a gas station for a number of years. Garcia told Germain that the USTs had been filled with concrete and were “within the law.” Germain was also aware that the Sunoco USTs had recently been excavated and that there was a problem with the tanks and possible contamination there. Germain said he spoke with neighbors about the property, but he did not say what he learned from them. Before the purchase, Germain conducted a visual inspection of the property and saw “several little metal plates” in the parking lot. Germain claimed it was only later that he learned that some of the plates were covers for groundwater monitoring wells. Germain said he visited and reviewed files at a Lake County office, but he was not specific about which county offices he visited. He also went to the Leesburg Historic Board to review property records. Germain’s testimony was not clear about what records he saw on these visits. Germain did not go to the office of the Seminole County Department of Public Safety, Emergency Management Division, to view records pertaining to the Germain property. He did not claim to have gone to the Department’s Central District Office in Orlando. In other words, Germain did not go to the offices of the agencies responsible for regulating petroleum USTs. Nor did Germain say that he talked to any knowledgeable employee of these agencies by telephone about possible contamination issues on the Germain property. While at a Lake County office, Germain searched the DEP website and saw two documents that indicated the USTs on the Germain property had been closed in place. One of the documents indicated a cleanup status of “no contamination.” Germain claimed that he relied on these documents to conclude that the property was clean. The Department explained that the phrase “no contamination” is used in its database as a default where no contamination has been reported and no discharge form has been filed. It is not a determination based on a site investigation that the site is free of contamination. However, the Department had received information that the Germain property was contaminated, so its explanation of the “no contamination” status for the Germain property was unsatisfactory. Germain does not practice environmental law. He neither claimed nor demonstrated knowledge or experience with the legal or factual issues associated with petroleum contamination. Germain did not present evidence to establish that he followed “good commercial or customary practice” in his investigation of the property as required by section 376.308(1)(c). Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Germain did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a gas station. If Germain had hired an environmental consultant to assist him, the consultant would have known where to find public records about the gas station, including any soil and groundwater analyses. An environmental consultant would have seen the site assessment reports and other public records that indicated petroleum contamination on the Germain property. A consultant would likely have recommended a Phase I environmental site assessment (“ESA”). A Phase I ESA entails, generally, determining past uses of a property, inspecting the property for visible indications of potential contamination, and reviewing aerial photographs, historical documents, and public records related to the property and its surroundings. A Phase II ESA would follow if potential contamination is discovered and usually includes taking soil and groundwater samples. In considering whether all appropriate inquiry was undertaken by a purchaser of contaminated property, section 376.308(1)(c) directs the court or administrative law judge to take into account: any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection. Germain did not have specialized knowledge regarding the regulation of petroleum USTs. However, as a lawyer, he was familiar with the practice of employing or working with professionals with specialized knowledge in order to achieve the objectives or solve the problems of his clients. If Germain’s legal assistance had been sought by a client to solve an environmental problem, Germain would have declined to proceed because he did not possess the requisite knowledge or he would have sought the assistance of an environmental lawyer or environmental consultant. In purchasing the Germain property, Germain did not undertake the reasonable steps a lawyer must take for a client. No evidence was presented about the relationship of the purchase price to the value of the Germain property. Germain did not show that the site assessment reports and other documents discussed above were not “reasonably ascertainable information.” Although a visual inspection by a lay person would not have disclosed the presence of contamination at the property, an environmental consultant would have recognized the groundwater monitor wells and would have known to seek information about the reason for their installation and the groundwater sampling results. Taking all relevant considerations into account, Germain failed to show that he made all appropriate inquiry before he purchased the Germain property. Germain transferred the property to Leesburg’s in January 2013 in part to limit his potential personal liability for petroleum contamination. The Germain property is Leesburg’s primary asset. Because Leesburg’s took title to the Germain property after the NOV was issued, it had full knowledge of the contamination and cannot claim to be an innocent purchaser. Post-Purchase Investigation In August 2007, the Department sent Germain a letter informing him that the Department had reason to believe his property was contaminated with petroleum and requiring him to conduct a site assessment pursuant to rule 62-770.600(1).2/ In September 2007, the Department sent Germain the 2004 and 2005 site assessment reports. Germain did not conduct a site assessment. At the final hearing, the Department did not state whether it had made any effort to take enforcement action against Griner, whom the record evidence indicates was the owner of the gas station when the discharge occurred. In 2012, the Department issued Germain a notice of violation for failing to conduct a site assessment and remediation. After Germain transferred the property to Leesburg’s, the Department issued the Final NOV to add Leesburg’s as a Respondent. The Final NOV seeks penalties of $10,000 against Germain, and $10,000 against Leesburg’s. While investigating this matter, the Department incurred expenses of $11,380.37 in investigative costs. Confirmation of On-site Contamination Despite the site assessment reports that documented contamination on the Germain property, Germain disputed the Department’s claim that the property was contaminated. The Department conducted testing and completed a Site Investigation Report in 2010. Because Germain would not allow the Department onto his property, the Department installed groundwater monitoring wells adjacent to the Germain property to the west and south, and collected groundwater samples. The Department confirmed the northwesterly flow of groundwater documented in previous reports and found elevated levels of petroleum contaminants above GCTLs, including benzene, ethylbenzene, toluene, xylene, total lead, EDB, and total recoverable petroleum hydrocarbons. Monitoring wells west of, or downgradient of, the Germain property showed high levels of groundwater contamination, while monitoring wells to the south and southeast, or upgradient of the property showed no signs of contamination, indicating that the source of the groundwater contamination was on the Germain property. Based on the site assessments and its own investigation, the Department determined that the Germain property is the source of petroleum contamination detected along the eastern portion of the Sunoco property. Germain and Leesburg’s did not present any expert testimony to support their claim that the Germain property is not contaminated or that the contamination migrated to the Germain property from offsite. A preponderance of the record evidence shows that the Germain property is the source of the petroleum contamination found in the onsite soil and groundwater, as well as in groundwater on the eastern portion of the Sunoco property.
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 This case involves the issue of whether the Respondent's license as a doctor of veterinary medicine should be disciplined for improperly prescribing Dilaudid, a controlled substance. At the formal hearing, the Petitioner called as witnesses Robert M. McGuire, Edward Duncan, and Mary Lee Page. Respondent testified on his own behalf. Petitioner had marked for identification five exhibits of which Exhibits 1, 2, and 5 were admitted. Exhibit 4 was not admitted into the record. Petitioner's Exhibit 3 was a composite of records received by a DPR investigator from the Respondent. Petitioner's Exhibit 3 is admitted and Respondent's objection on the grounds that the records were illegally seized is overruled. Also admitted into evidence was the prehearing stipulation and the Respondent's response to request for admissions as Joint Exhibit 1 and Joint Exhibit 2, respectively. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein, the proposed findings were adopted. To the extent that those proposed findings are inconsistent with the findings made herein, they were considered by the Hearing Officer and rejected as being not supported by the evidence or not necessary to a resolution of this cause.
Findings Of Fact The Respondent is licensed to practice veterinary medicine in the State of Florida and holds License No. 0001405. The Respondent graduated from veterinary school in 1968 and has been a licensed veterinarian practicing in Florida for 13 years. Sometime prior to August 5, 1982, Ken Williams, a blacksmith who had done work for the Respondent, asked the Respondent to write a prescription for Dilaudid for his old and sick dog. Ken Williams stated the Dilaudid was for pain his dog was suffering. The Respondent, without having seen or examined the dog, wrote a prescription for 100 Dilaudid tablets, four milligrams each. (See Petitioner's Exhibit 5(a)). The prescription was given to Ken Williams and was filled by Robert M. McGuire, a licensed pharmacist in Ruskin, Florida. On September 3, 1982, the Respondent, after examining Ken Williams' dog, Satan, wrote a prescription for 100 Dilaudid tablets, four milligrams each, and gave the prescription to Ken Williams. The dog, Satan, was a young, healthy dog which was clearly not in pain. This was the same dog for which Ken Williams had requested the Dilaudid prescribed by the Respondent on August 5, 1982. The second prescription was also filled by Robert M. McGuire. After he wrote the second prescription, the Respondent researched Dilaudid in the Physicians Desk Reference. Prior to this research, he knew very little about Dilaudid as a drug. The Respondent concluded at that time that Williams was not using the Dilaudid for an animal, but was probably using it himself. The Respondent wrote prescriptions on October 6, 1982, October 28, 1982, and November 22, 1982. (See Petitioner's Exhibits 5(a) 5(d) and 5(e)). Each of these prescriptions was for 100 tablets of Dilaudid, four milligrams each. Each of these prescriptions was given to Ken Williams by the Respondent and was filled by Robert M. McGuire. The five prescriptions described in Paragraphs 3 through 6 above were not noted or recorded in the Respondent's records for his client Ken Williams. The prescriptions were not for animals examined by the Respondent and determined to be in need of Dilaudid but were prescribed for Ken Williams. Prior to August, 1982, Ken Williams had been convicted of possession of Dilaudid in violation of Florida Statute 893.13. (See Petitioner's Exhibit 6.) The Respondent had no knowledge of Ken Williams' drug conviction when he wrote the prescriptions described above. The Respondent received no compensation for writing the five prescriptions. Even after concluding the Dilaudid tablets were not being used by Ken Williams for an animal, the Respondent wrote the prescriptions on October 6, October 28, and November 22, 1982, because he feared Ken Williams would report him. Respondent was made aware by Ken Williams that Mr. Williams was using the Dilaudid himself for pain. The active ingredient in Dilaudid is Hydromorphone, a controlled substance listed in Schedule II of Florida Statute 893.13. The Respondent has been a practicing veterinarian for 15 years with 13 of those years having been in Florida. He has no previous charges or complaints against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Veterinary Medicine requiring the Respondent to pay an administrative fine of $750.00. DONE and ENTERED this 12th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 12th day of August, 1983. COPIES FURNISHED: James H. Gillis, Esquire Mr. Fred Roche Department of Professional Secretary Regulation Department of Professional Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Robert A. Young, Esquire Ms. Jane Raker Wilkins, Moorman & Young Executive Director Post Office Box 428 Board of Veterinary Medicine Bartow, Florida 33830 130 North Monroe Street Tallahassee, Florida 32301
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.
