Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue 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
The Issue An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character". The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989. The issues are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number 02-86-002-02. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird. Respondent was not a participant in the detail to which the two officers were assigned that evening. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs). On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled. The story would be more plausible if it were not for ensuing events. After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police. He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet. The parties' prehearing stipulation establishes the following: On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.] At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely identifiable as the Respondent's urine sample. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital Toxicology Laboratory by Mr. Wallace. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed 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. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine. Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine. Both benzoylecgonine and ecgonine are unique metabolites of cocaine. The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement. Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.
Recommendation Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate. RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 James E. Lyons 415 18th Street, S.E. Winter Haven, FL 33880 Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent, a dentist licensed by the Board of Dentistry, violated provisions of Chapter 466, Florida Statutes, in any of three ways alleged in an Order of Emergency Suspension issued December 20, 1996? First, did he administer a legend drug other than in the course of the professional practice of dentistry? Second, did he commit misconduct in the practice of dentistry by using nitrous oxide upon himself in his dental office? Third, and most seriously, did he commit misconduct in the practice of dentistry by administering nitrous oxide under pretense to his dental assistant in his dental office in order to initiate and engage in sexual activity with her without her consent while she was under the influence of the nitrous oxide?
Findings Of Fact Nitrous Oxide Nitrous Oxide ("nitrous") is a legend drug that is administered as a gas by means of inhalation. It is commonly used in the practice of dentistry. Depending on the level of nitrous used, it has different effects on the dental patient or person inhaling it. At low levels it causes mild sedation. At higher levels it produces more profound effects, even amnesia. Typically, a person under the influence of therapeutic doses of nitrous is aware of events close by but is rendered incapable of responding to them because of the effect of the drug. As a legend drug, nitrous can only be used when prescribed by an authorized licensee. Dentists licensed by the State of Florida are authorized to prescribe and administer nitrous oxide in the practice of dentistry by virtue of their licensure as dentists. Even when prescribed and administered in the practice of dentistry by a dentist on a dental patient, it should be administered only in the presence of a third person. The Parties Petitioner, the Agency for Health Care Administration, (the "Agency" or "AHCA") is the state agency charged with regulating the practice of dentistry pursuant to Sections 20.165 and 20.42, Florida Statutes, as well as Chapter 455 and 466, Florida Statutes. Respondent, Steven B. Schwartz, D.D.S., is a dentist. He has been licensed as a dentist in the State of Florida since July 27, 1990, when his license, number 0012402, was first issued. Dr. Schwartz' license is currently suspended and has been since December 20, 1996, when the Emergency Order of Suspension which serves as the foundation of this case was issued by the Agency. August 19, 1996 On August 19, 1996, Elizabeth Ann Jimerson was a dental assistant for Dr. Schwartz. Her duties included assisting Dr. Schwartz in the administration of nitrous oxide. Ms. Jimerson had been working for Dr. Schwartz for about one month, having started in his employ in mid-July, 1996. At the time she began to work for Dr. Schwartz, Ms. Jimerson had had one year of prior experience as a dental assistant. During that year of prior experience, she had not assisted in the administration of nitrous oxide. Throughout the month that Ms. Jimerson had worked for Dr. Schwartz, he suggested that she be administered nitrous oxide and experience its effects herself. Dr. Schwartz made the suggestion under the pretense that with personal knowledge of the drug's effects, Ms. Jimerson would be able to explain better its effects to patients who would be administered it in the course of Dr. Schwartz' practice. In reality, Dr. Schwartz had something else in mind when he made the suggestions. On the evening of August 19, not long after the close of business, it was raining hard outside Dr. Schwartz' office. Ms. Jimerson was just outside the office waiting for the rain to die down so she could get to her car. As she waited, Dr. Schwartz invited her back in until it stopped raining and suggested she wait in the office's dental lab. After small talk about the weekend, Dr. Schwartz asked Ms. Jimerson if she wanted to try the nitrous. Ms. Jimerson testified, "he had been telling me since I started that I needed to get under it so I could explain it better. I said that was fine. It was raining. We couldn't leave ...". (Tr. 13). Ms. Jimerson set the nitrous oxide dispenser on the typical setting, "7" for nitrous oxide and "3" for oxygen. She sat in the dental chair, placed the mask over her face and began breathing the mixture of nitrous oxide and oxygen. A short while later, Ms. Jimerson was aware of Dr. Schwartz adjusting the settings on the nitrous oxide dispenser. Soon she began to feel more of the effects of the nitrous. She felt like she was "in and out of reality," (Tr. 14), but she was aware of what was happening around her. Her experience of awareness while under the effects of nitrous oxide is a common one. A person may be aware of what is happening while under the influence of nitrous yet incapable of responding in a meaningful way. Still in the chair, woozy from the nitrous oxide, aware of what was going on yet powerless to respond, Ms. Jimerson realized that Dr. Schwartz was lifting up her shirt. There was nothing she could do about it because of the effects of the nitrous oxide. Dr. Schwartz lifted up her bra and began fondling her breasts. He unzipped his pants, and placed Ms. Jimerson's hand on his penis until he achieved an orgasm, ejaculating onto the area of her breast and shirt. Ms. Jimerson did nothing to initiate or participate in any of Dr. Schwartz' sexual activity. There was no element of consent on her part. Her mental response was quite different - she felt like she was dreaming. She was aware of Dr. Schwartz' unwanted invasion of her person but because of the effects of the nitrous oxide, she was unable at any time during the entire ordeal in Dr. Schwartz' dental chair to rebuff in any manner his sexual advance and the degrading actions that followed. Once Dr. Schwartz had finished the sexual activity at the expense of Ms. Jimerson, he left the room. Ms. Jimerson was able to remove the nitrous mask. She sterilized it and went to the bathroom where she washed her hands and tried to wash her shirt. Extremely upset, Ms. Jimerson was shaking very badly. Dr. Schwartz returned and told her to don the mask again to receive pure oxygen because she was trembling so. She asked him if it would affect her heart because she has a heart problem. Dr. Schwartz responded no and she left. Ms. Jimerson went to the house of a friend and called her mother and Richard Snodgrass, an investigator with the Major Crimes Unit in the Lee County Sheriff's Office. Ms. Jimerson then contacted the Cape Coral Police Department. Other Nitrous Oxide Episodes Ms. Jimerson was not the first employee with whom Dr. Schwartz had attempted to engage in sexual activity. He also propositioned Ms. Terri Hall, an employee who performed clerical duties in his office. Dr. Schwartz did not invite Ms. Hall to try nitrous oxide, but during the six months that she worked for him she observed him emerge from his office three or four times after having used nitrous oxide himself. On several occasions when at home around eight o'clock in the evening, Ms. Hall received calls from Dr. Schwartz' wife. Ms. Hall related the following, I lived closer to the office than his wife did. And it would get to be later in the evening, eight o'clock at night or so, and she would call and say, ... Terry (sic), I really apologize. I know Steve fell asleep on the nitrous oxide. Can you please wake him up. The first couple of occasions, I went and I woke him up. And as I would go in the room, he would be on the nitrous, his pants undone, his belt undone and everything half hanging out. (Tr. 54, 55). On another occasion, Ms. Hall pounded on the door to wake Dr. Schwartz. Dr. Schwartz emerged, pants undone, genitals exposed and asked Ms. Hall to get on a chair with him and perform oral sex. Dr. Schwartz also used nitrous during office hours when he first opened a new solo practice in Cape Coral before he had many patients. On one occasion of such use, Ms. Hall was told by Dr. Schwartz to interrupt him if a patient arrived at the office. Ms. Hall last saw Dr. Schwartz use nitrous oxide on himself in December of 1991 or January of 1992 shortly before she quit working for him. On another after-hours occasion, Dr. Schwartz was interrupted while using nitrous oxide by Ms. Hall's boyfriend, Christopher Straight. After knocking on the door of the office, Mr. Straight observed Dr. Schwartz move to the window. He appeared intoxicated to Mr. Straight. His trousers were undone, his shirt was unbuttoned, the nitrous machine was running and the nitrous mask was on the floor. Dr. Schwartz admitted to Mr. Straight that he used nitrous oxide for sexual pleasure, an admission he later reiterated to Detective Michael Torregrossa of the Cape Coral Police Department, while Detective Torregrossa was conducting the investigation in the wake of the events involving Ms. Jamerson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Dentistry enter a final order that accepts the findings of fact in this recommended order, concludes that Respondent Steven B. Schwartz, D.D.S, is guilty of violating paragraphs (p) and (t) of Section 466.028(1), Florida Statutes, and revokes his license to practice dentistry in the State of Florida. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399 Laura P. Gaffney Senior Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317 Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614
The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent has failed to maintain good moral character, as required by Sections 943.13(7) and 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 20, 2000, and issued him certificate 193831. From March 6, 2000, to March 13, 2002, Respondent was employed as a corrections deputy by the Broward County Sheriff's Office. On November 20, 2001, Respondent was ordered to report to the Sunshine Medical Center and submit to a command-referred drug test. The medical review officer at the Sunshine Medical Center was Dr. Alan Roberts, who had received extensive training in the identification of drugs in employees. Respondent submitted a urine sample for testing. Personnel at the Sunshine Medical Center complied with all applicable policies regarding the collection, storage, transporting, and testing of urine, as well as the reporting of results. The procedure of Sunshine Medical Center is to split samples and retain one of them, so that a test subject may later request retesting of the sample, if the split sample sent to the testing laboratory has produced a positive result. At the testing laboratory, American Medical Laboratories, Respondent's urine tested positive for marijuana metabolites--i.e., THC--and benzodiazepines. Respondent had a prescription for Xanax, so the presence of benzodiazepines is irrelevant to this case. The test results for marijuana are at a level--170 nanograms--to preclude passive inhalation of marijuana. The initial screening by an immunoassay test was followed by gas chromatography/mass spectrometry, which is more accurate and quantifiable. This level of marijuana metabolites is inconsistent with ingestion by way of food. A positive reading would result for 30 days after consumption, if the subject is a regular user of marijuana, and three days after consumption, if the subject is a one-time user of marijuana. On November 29, 2001, Dr. Roberts contacted Respondent and informed him of the results. Respondent stated that he had a prescription for Xanax, but did not explain how the marijuana metabolite had appeared in his urine. Dr. Roberts offered to send the split specimen to the lab for testing, but Respondent said only that he would consider that option. Respondent never got back in touch with Dr. Roberts or Sunshine Medical Center and never otherwise indicated a desire that the split sample be tested. After not hearing back from Respondent regarding retesting, Sunshine Medical Center released the official results to the Broward County Sheriff's Office on December 6, 2001. When interviewed by personnel of the Broward County Sheriff's Office, Respondent offered no plausible explanation for the presence of marijuana metabolites in his urine. He provided sketchy details about a party at which he had eaten some chocolate cake that seemed stale, but could not provide the date of the party or any names of persons in attendance. Unless he were a regular user of marijuana, Respondent would have recalled more details about the party, including the approximate date, because it would have taken place just three days before the testing, if Respondent's consumption of marijuana at the party were a singular occurrence. Respondent's explanation of intoxication by beer, cold medication, and Xanax is insufficient to explain his total loss of memory concerning what should have been such a recent event. Under the circumstances, including obvious inferences, Respondent voluntarily consumed marijuana sufficiently close in time to the date of the drug test, which revealed the presence of marijuana metabolites in Respondent's urine.
Recommendation It is RECOMMENDED that the Criminal Justice Standards Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 19th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James M. Caruso 401 Northwest 103rd Avenue Apartment 252 South Pembroke Pines, Florida 33026
