The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of July, 2000.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY 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 September, 1990.
The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 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 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether Sapa Precision Tubing Rockledge, LLC (Respondent), discriminated against Christopher Brian Edwards (Petitioner) on the basis of age.
Findings Of Fact Petitioner is over 40 years of age, and was employed by Respondent from 2009 until May 21, 2013. Prior to his termination, Petitioner received favorable work evaluations and demonstrated good work attendance. Respondent is a manufacturing company that makes aluminum tubing for commercial purposes. Safety in the work environment is critical to Respondent’s success. Part of Respondent’s safety regimen includes maintaining a drug-free workplace. To that end, Respondent retains an outside company, Edge Information Management, Inc. (Edge), to conduct random drug tests of Respondent’s employees. Respondent’s drug-free policy is set forth in its employee handbook that is provided to all employees. Petitioner received a copy of the handbook and knew or should have known of the company’s drug-free policy upon his employment. In order to screen Respondent’s employees, Edge creates a random matrix that assigns all employees a number. The computer program used by Edge then generates a random sampling of employees for the given test date. In this case, approximately one month before the test date, Edge randomly selected employees who were to be tested on May 14, 2013. Petitioner was named among the randomly selected employees. Edge is accredited by the Drug and Alcohol Testing Industry Association and is fully authorized to conduct drug screenings. Edge employee, Leonard Clarke, was fully trained in the process of collecting samples to assure conformance with all applicable testing standards. Prior to the test date, Petitioner attended a meeting with other employees and voiced concerns to Respondent regarding working conditions by “bringing up stuff that they were not comfortable with.” Although not part of his original claim of discrimination, Petitioner now maintains that his termination was also in retaliation for his comments during that meeting. On May 14, 2013, based upon the employees randomly selected by Edge, Respondent notified supervisors to send the employees to a conference room for drug testing. Clarke prepared the paperwork and waited for the 27 employees to report for the screening. No one at Respondent selected the employees to be screened, conducted the collection of samples, or tested the samples taken. Clarke was solely responsible for the drug testing. All of the employees were required to review the testing form, sign, and date it before returning it to Clarke. Each was given a lollypop stick with a sponge attached to one end. By placing the sponge in the mouth and collecting saliva, the sample can then be tested to issue a preliminary result for drugs. Clarke had a difficult time collecting a saliva sample from Petitioner. Eventually, on the second or third attempt Petitioner produced enough saliva to place the sponge in the vial to allow the test strip to render a result. The test strips are designed to react to substances such as marijuana, cocaine, or amphetamines. In Petitioner’s case, the test strip showed positive for drug metabolites and/or alcohol. After testing positive on the saliva test (the only employee who did), Clarke asked Petitioner to give a urine sample so that a complete drug analysis could be performed by the Edge lab. Petitioner consented to all testing procedures and the collection of samples on May 14, 2013. For the purpose of the urine sample, Petitioner was given a cup and asked to go into the adjacent bathroom to produce the sample. When Petitioner returned the cup to Clarke it was noted that the cold, clear liquid did not register a temperature. Based upon his training, Clarke suspected that Petitioner had not urinated into the cup and discarded the sample. Next, Clarke accompanied Petitioner while a second sample was collected for urinalysis. Clarke marked the sample, packaged it in accordance with all applicable standards, and sent it by FedEx to Edge’s lab. Petitioner’s testing went from “random” to “reasonable suspicion/cause” based upon his saliva test and behavior with Clarke. It appeared to Clarke that Petitioner attempted to evade the drug testing process. Based upon the preliminary test results, Petitioner was suspended from work. Petitioner knew he had tested positive for drugs and that his urine sample would be further evaluated. It is undisputed that Petitioner’s urine tested positive for cocaine. Prior to notifying Respondent of the test results, Edge notified Petitioner that the sample tested positive for cocaine and gave Petitioner an opportunity to contest or explain how the result might be erroneous. Petitioner did not contest the result and has not disputed the presence of drugs in his saliva and urine on May 14, 2013. On May 21, 2013, Edge sent Petitioner’s drug results to Respondent. At that time, Respondent decided to terminate Petitioner’s employment with the company, and Chapman notified Petitioner by telephone that he was terminated because he tested positive for cocaine. Respondent gave Petitioner an opportunity to contest the drug results, but he did not. At hearing, Petitioner did not contest the drug results. Of the persons tested with Petitioner, twenty were younger than he and six were older. Only Petitioner tested positive for drugs. In the last ten years, all employees at Respondent who have tested positive for drugs have been terminated. No one younger or older than Petitioner has been retained if they tested positive for drugs. Petitioner’s age did not impact Respondent’s decision to terminate his employment. None of Petitioner’s comments were considered in the termination of his employment. Petitioner did not raise retaliation with FCHR and has not established that Respondent retaliated against him because of comments he made during a company meeting. In short, Petitioner was terminated because he tested positive for cocaine. There was no competent, substantial evidence that persons younger than Petitioner were treated differently from Petitioner or were subject to dissimilar policies or practices. All of Respondent’s employees who tested positive for drugs have been terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015. COPIES FURNISHED: Christopher Brian Edwards 4605 Ocean Beach Boulevard Cocoa Beach, Florida 32931 Mary Susan Sacco, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Request for Proposals On March 14, 2001, the Board authorized the issuance of a request for proposals to solicit offers on a contract for drug screening services. Soon, Request for Proposals No. 149-AA10 (the “RFP”) was issued. The purpose of the RFP, as stated on the first page thereof, was [t]o obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services both to meet the general requirements for collection and drug screening services; and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (Attachment A). The deadline for submission of proposals in response to the RFP was April 10, 2001. Page 3 of the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (the “Guide”) explained that applicants and employees are tested in the following circumstances: (1) upon application for full-time employment; (2) when "reasonable suspicion"1 exists to believe that an employee has impermissibly used drugs or alcohol; (3) as part of routine "fitness for duty" medical examinations2; and (4) as a "follow up" to an employee's completion of a drug rehabilitation program. Because the District employs persons performing safety- sensitive functions and persons who hold commercial driver licenses, the District must comply with a federal law known as the Omnibus Transportation Employee Testing Act (“OTETA”). Employees covered by OTETA are subject to pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, "return-to-duty" testing (after a positive test), follow-up testing, and annual testing. Guide, pp. 10-14. Unlike other employees, persons falling under OTETA are not subject to blood alcohol screening. Guide, p. 22. The type of drug test that the District most frequently requests involves urinalysis. For alcohol testing, breath analysis is the normal practice. Blood alcohol testing is used infrequently. The RFP did not explicitly disclose the District’s relative demand for these various types of tests. Section V of the RFP prescribed the technical requirements with which proposers needed to comply. Subsection C thereof stated, in pertinent part: The collection site is a place where individuals present themselves for the purpose of providing urine or blood specimens to be analyzed for the presence of drugs or alcohol. Page 15 of the Guide added that "[c]ollection sites shall have all of the necessary personnel, materials, equipment, facilities, and supervision to provide for the collection, security, temporary storage, and shipping or transportation of urine specimens to a certified drug testing laboratory." Section V, subsection K set forth four “location parameters [as] examples of locations which shall comprise the areas for collection and drug screening to insure [sic] convenience for applicants and employees.” These “location parameters” essentially divided the Miami-Dade County service area into quadrants. Section V, subsection L, provided in relevant part: “Mobile collection of specimens will be required at some of the Regional Transportation Centers[.]” The Guide, at page 15, further mandated that "[m]obile collection sites" be equipped and staffed "the same as" other collection sites. Section V, subsection M stated, in part: “A collection site is preferred in the area of 1500 Biscayne Boulevard, Miami, Florida 33132, for the convenience of any potential employees who wish to provide specimen collection concurrent with a scheduled interview by the Office of Human Resources.” Section V, subsection N, stated: At least one site in the North end and [sic] of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Section VI of the RFP, which addressed the cost of proposed services, instructed that [p]roposals must include an itemization of charges for collection of specimens, initial and confirmatory tests. Such itemized charges will be used in the event a retest is necessary. Retests required as a result of defective equipment, incorrect analysis, or misinterpretation shall be done at the expense of the provider. Section VIII provided that proposals would be “evaluated by [a] selection committee . . . comprised of representatives of the school district, in order to ascertain which proposal best meets the needs of the School Board.” The selection committee (hereafter, “committee”) was to be composed of one administrator each from five separate offices, which were designated in section VIII. Section VIII also established the evaluation criteria to be used by the committee, stating: Evaluation considerations will include, but not be limited to, the following: Responsiveness of the proposal clearly stating an understanding of the work to be performed meeting all the technical guidelines in [the Guide]. Cost may not be the dominant factor, but will have some significance. It will be a particularly important factor when all other evaluation criteria are relatively equal. Documentation of current certification by DHHS; qualifications of laboratory staff members; past experience and record of performance; verification of references. Location of the laboratory and planned method of pick-up from designated collection sites and transportation of specimens according to chain of custody protocol to the drug testing laboratory; turnaround time relative to volume of expected need; accessibility relative to volume of expected need. Primary emphasis in the selection process will be placed on the independence, background, experience, and service of staff to be assigned to the project. Expertise in the areas addressed in the RFP, and the ability to respond in a timely, accurate manner to the district’s requirements is essential. Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collection/testing. The School District reserves the right to reject any and all proposals submitted and to waive irregularities. . . . . Relevant Details About the Proposals Two proposers, Global and RN, submitted timely responses to the RFP. The following is a look at certain terms in their respective proposals. Global’s Proposal Global was the incumbent provider pursuant to a contract that had been entered into on June 11, 1997. Even before the establishment of the expiring contractual relationship, from 1995 forward, Global had provided general drug testing services for the District. In addition to that, Global had performed fingerprint analyses for the District prior to 1995. Thus, Global had a history with the District. In a Fee Schedule included at page VIII-1 of its proposal, Global quoted the following prices for services: Federal Drug Testing for OTETA covered employees $30.00 * * * Breath Alcohol Testing $25.00 After hour Services Flat fee per donor/employee . $75.00 plus regular testing fee Monday — Friday: 5:00 p.m. — 8:30 a.m. Saturday and Sunday All Day Florida Drug Free Work Place for general employee drug testing $25.00 * * * At page V-1 of its proposal, Global listed ten collection facilities, providing their addresses and hours of operation. According to the proposal, only one of these facilities stays open until midnight. Five of them close each weekday at 4:00 p.m., and four at 5:00 p.m. None is open on weekends. Global offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered a site in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And Global offered at least one site each in the north and south ends of Miami-Dade County, satisfying the geographic requirements of subsection V.N. Global’s south-end site, however, closes at 5:00 p.m. and thus fails to satisfy the requirement, also prescribed in subsection V.N., that such facility remain open until midnight. In addition to these stationary facilities, Global offered the services of a mobile unit. Its proposal stated: ON-SITE COLLECTION After Hours Emergency24 hours Operating hours: Monday — Sunday Via Mobile Unit Global described its mobile unit, at page V-2, as a “self contained air conditioned motor coach equipped with 2 bathrooms, blood drawing chair, urine collection equipment, computerized breach alcohol analyzer with ample facilities for a physician to conduct physical exams on DOT (OTETA) employees and yearly re- certification.” Global, in fact, has three of these mobile units. The vans are available for use by all of Global’s clients. Two vehicles are maintained in Fort Lauderdale, Broward County, Florida, and thus are in position to respond to service calls for the District. The third van is maintained in western Palm Beach County. Because after-hours tests generally are needed in post-accident and reasonable suspicion circumstances, which require a rapid response (within two hours of the incident), the Palm Beach County-based van would not, as a practical matter, likely be deployed for the District. Global does not maintain a mobile unit in Miami-Dade County. B. RN’s Proposal Included in RN’s proposal was the following schedule of costs: RN Expertise charges $27.80 for a 5 panel NIDA drug screen. This charge includes an adulterant panel, 5 panel drug screen, collection of the specimen, transportation charges and MRO charges. There will not be a charge for confirmation tests. RN Expertise charges $26.00 for an 8 panel drug screen. This charge will include an adulterant panel, 8 panel drug screen, collection of the specimen, transportation charges and MRO charges. If the School Board does not elect to have an adulterant panel performed on general tests the charge will be $25.00. RN Expertise charges $25.00 for a breath alcohol test. This also includes on- site testing charges. There will not be a charge for confirmation tests. RN Expertise will charge $30.00 for a blood alcohol test. RN Expertise will submit monthly invoices. These invoices will be submitted to the Office of Operation and Records and/or the Office of Professional Standards (OTETA) through a purchase order. The invoices shall reflect service provided to the Board in the prior month. Regarding collection sites and locations, RN’s proposal stated, at pages 12 through 13: Quest Diagnostics [the laboratory that RN proposed to use] has 14 collection sites in the Miami-Dade County area. Please see Appendix B for all maps of locations and zip code map with all locations that have been highlighted for your convenience. RN Expertise, Inc. will provide all on- site drug screen collections and breath alcohol tests. We have numerous certified collectors and breath alcohol technicians throughout the state who specialize in on site testing. All collectors and BATS have been certified by Christine Steele. Please see Appendix C. for certificates of RN Expertise, Inc. and insurance and licenses. Three Quest patient care centers are located very close to the area of 1500 Biscayne Boulevard, Miami, Florida, 33232. The hours of operation are 7:00 am to 4:30 pm. RN Expertise has arranged three third party sites in the North end of Miami-Dade county and one site in the south end of Miami-Dade County that are available to perform reasonable suspicion and post- accident testing. The hours of operation are from 8:00 am to 12:00 midnight. These addresses are: Workers Compensation Medical Center 17601 N.W. 2nd Avenue Ste S Miami, Florida 33169 Workers Compensation Medical Center 6504 N.W. 77th Court Miami, Florida 33166 Homestead Hospital 160 NW 13th Street Homestead, FL 33030 If these sites are not convenient we can arrange additional sites or provide these tests on an on-site basis. RN offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered sites in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And RN offered at least two sites in the north end of Miami-Dade County and one in the south, all three of which were open from 8:00 a.m. until midnight, thereby satisfying both the geographic and hours of operation requirements of subsection V.N. The Evaluation Committee(s), Mr. Bevan’s Comparison Chart, and the Evaluations A. The Original Committee To evaluate the proposals, a five-person committee was appointed in accordance with the RFP. Its members were Nelson E. Diaz, Deputy Superintendent, Personnel Management and Services; Gwendolyn Jennings Kidney, Assistant Superintendent, Employee Support Programs; Jose Montes de Oca, Assistant Chief Auditor, Management and Compliance Audits; Michael Fox, Risk Analyst, Risk and Benefits Management; and Patricia Freeman, Director, Business Development and Assistance. This committee arranged to meet for the first time on April 11, 2001. Notice of the meeting was not published in advance; the committee would convene in private. The following staff persons were asked to be present at the April 11 meeting to provide technical expertise, if needed: Vera Hirsh, Administrative Director, Personnel; William Bevan, Executive Director, Personnel Operations and Records; Frederic F. Conde, Executive Director, Office of Professional Standards; and Barbara Jones, Director, Procurement. B. Mr. Bevan’s Comparison Chart Before the April 11, 2001, meeting, Ms. Hirsh asked Mr. Bevan, as a technical advisor to the committee, to prepare a comparison of the two proposals. At the time, Mr. Bevan was most knowledgeable about the District’s procedures for drug testing, because he had been directly involved in the general drug testing program. Also, through his work experiences, Mr. Bevan had acquired personal knowledge concerning Global. Indeed, Global had listed Mr. Bevan as a reference in its proposal. Mr. Bevan prepared a comparison chart that was distributed to all the members of the committee. The following table contains the substance of Mr. Bevan's comparison chart:3 Item No. GLOBAL RN EXPERTISE 1 TURNAROUND TIME IS NEXT BUSINESS DAY 5 DAYS ON POSITIVE 24 HOURS FOR NEGATIVES 48 HOURS FOR POSITIVES 2 LOCATION IS FORT LAUDERDALE ALTAMONTE SPRINGS 3 PLAN TO DELINEATE OTETA FROM GENERAL GOOD PLAN PLUS ICON BASED DRUG TEST FORM VERY WEAK PLAN VERY WEAK ANALYSIS 4 COST $30.00 DOT BLIND SAMPLES ARE INCLUDED COST $27.80 NO MENTION OF BLIND SAMPLES 5 POLICE $25.00 ALL ALCOHOL TESTS BOTH BREATH & BLOOD ARE $25.00 $26.00 8 PANEL TEST BREATH ALCOHOL $25.00 BLOOD ALCOHOL $30.00 6 COLLECTION SITES 10 TOTAL SITES 14 TOTAL SITES LESS 4 IN BROWARD, 6 FOR BLOOD DRAW ONLY = 4 NET SITES 7 MOBILE COLLECTION DONE BY MOBILE VAN "WILL PROVIDE ON-SITE COLLECTION" 8 EXPERIENCE 4 YEARS WITH M-DCPS NO SUCCESSFUL LEGITATION [sic] AGAINST M-DCPS US SUGAR ? 9 LABORATORY LAB CORP OF AMERICA LATE IN REPORTING RESULTS ONE TIME IN FOUR YEARS QUEST LABORATORIES QUESTIONABLE 10 ADULTERANT TESTING IS PERFORMED BY LAB CORP AT A STANDARD COURSE OF PROTOCOL WITH NO CHARGE FOR THIS PROCEDURE TESTSURE IS BROKEN OUT AS A SEPARATE ENTITY Because of his personal knowledge of and experience with the drug screening program, Mr. Bevan's opinions carried great weight with the committee members. As will become clear, moreover, Mr. Bevan operated as a de facto evaluator. Thus, for good reasons, his comparison chart drew RN’s close and critical attention. It will be examined in detail below. Item No. 1. This item is helpful as a contrast to the others, for here Mr. Bevan did exactly what a technical advisor should do: provide a concise, accurate, and objective summary of details contained in the proposals without making a subjective judgment as to which proposal is superior. Item No. 2. As Mr. Bevan admitted at hearing, the RFP did not include, as an evaluation criterion, the location of a proposer's base of operations. Testifying, he explained that, "in [his] mind, [a proposer's location] was not something that was in the RFP, but it was important to me." Hearing Transcript (“T.”) 59. Of course, it was not Mr. Bevan's place to make subjective judgments about what was valuable in the proposals—— that was for the evaluators. Further, even the evaluators could not properly take into account undisclosed evaluation criteria. Thus, this comparison was irrelevant and consideration thereof was contrary to the RFP and contrary to competition. Item No. 3. This comparison pertained to the evaluation criterion specified in section VIII, subsection F, which provided: Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collecting/testing. Mr. Bevan dubbed RN's proposal "very weak" and Global's "good" primarily because Global's prototype OTETA form had a transparent drawing of a school bus superimposed over the writing, and its sample form for use by school police officers had a simple, freehand outline of an officer drawn on its face, whereas RN's forms did not have such "icons." Mr. Bevan believed that the pictures of the school bus and police officer would prevent the less intelligent applicants and employees from using the wrong form.4 Although reasonable people might disagree with Mr. Bevan's analysis of the respective merits of the proposals on this criterion, his conclusion was neither arbitrary nor capricious. The problem, however, is that Mr. Bevan was not a member of the committee, and his qualitative judgment went well beyond an even-handed explanation of a technical term or process, or an objective summary of the proposals' details. In other words, as this item clearly shows, Mr. Bevan assumed the role of evaluator. Item No. 4. Mr. Bevan's comparison of "blind sample testing" is interesting because the purpose of focusing on this discrete point, among all others relating to the proposers' price quotes for OTETA testing, seems to have been to blunt the advantage that RN otherwise would enjoy for having offered the lower price. (The comparison effectively says, RN's OTETA test is cheaper, yes, but Global adds value by performing blind samples, whereas RN may not provide this service.) Mr. Bevan could have written, however, with equal accuracy, that RN's price for OTETA testing "includes an adulterant panel" while Global's proposal makes "no mention of adulterant panels," which would have made RN's price quote appear even more attractive as against Global's. RN, however, did not complain about this aspect of Mr. Bevan's analysis; consequently, the undersigned has paid little attention to, and based no ultimate factual determinations or legal conclusions on, this item. Item No. 5. According to the Guide, at page 21, school police officers are required to be tested for eight drugs or classes of drugs. This is called an "8 panel" test or screen. Other employees, in contrast, need only be tested for five drugs or drug classes, using a "5 panel" screen. In his comparison, Mr. Bevan balanced Global's supposed price of $25.00 for police tests against RN's quote of $26.00 for an 8 panel drug screen. Yet, in its Fee Schedule, Global did not specify a separate charge for police tests, 8 panel tests, or 5 panel tests.5 Rather, Global quoted a price of $25.00 for "general employee drug testing." Based on his previous experience with Global, however, Mr. Bevan assumed that Global's charge for police tests would be $25.00, the same as the cost of testing other non-OTETA employees. Mr. Bevan's assumption was dubious at best, even assuming that Global previously had been charging $25.00 for police tests.6 At worst, if Global's historical pricing were ignored (as it should have been, being a fact extrinsic to Global's proposal), Mr. Bevan's assumption was bereft of factual or logical support; it was simply arbitrary. At a minimum, though, Mr. Bevan should have stated, on the comparison chart he provided to the committee, that he was making an assumption in Global’s favor. Without such a qualification, the chart——which purported to compare "apples to apples"——unfairly depicted RN's as unequivocally the costlier proposal on this item, for RN was shown truthfully to have quoted $26.00 for an 8 panel test. Moreover, significantly, Mr. Bevan omitted the fact that RN also had offered a price of $25.00 for an 8 panel screen without an adulterant panel. Thus, not only had Mr. Bevan potentially compared "apples to oranges," he had compounded the problem by making RN's quote for police testing appear higher than it necessarily would need to be. Making the matter worse still, Mr. Bevan represented that Global's price for blood alcohol testing was $25.00 versus $30.00 for the same procedure with RN. Global, however, had not offered to perform blood alcohol tests for $25.00 apiece; it had not quoted any price for such testing. Mr. Bevan assumed that Global's price would be $25.00 based on his past experience with the company. The validity of Mr. Bevan's assumption, again, is questionable;7 at the very least, his assumption should have been disclosed to the committee on the comparison chart. As drafted, without disclosure of Mr. Bevan's Global-friendly assumption, the comparison chart was grossly inequitable to RN, creating the possibly false impression that RN's price for blood alcohol testing was 20% higher than Global's. Finally, in comparing the cost proposals, Mr. Bevan failed to note that Global had quoted a hefty $75.00 surcharge for all "after hour services," meaning tests performed on weekdays between 5:00 p.m. and 8:30 a.m., and anytime on Saturday or Sunday. RN, in contrast, did not similarly propose a 400% price increase for after-hours work, and thus would have been favored by the comparison Mr. Bevan chose not to make. Item No. 6. The issue of collection sites would become crucial. Mr. Bevan's ultimate opinion——that RN had proposed "4 net sites" as against the "10 total sites" offered by Global——was highly subjective and clearly erroneous. To begin, RN's proposal in fact described a total of 17 collection sites——not 14 as Mr. Bevan incorrectly represented. At pages 12 and 13 of its proposal, RN responded sequentially to RFP section V, subsections K (collection sites desired in four quadrants of Miami-Dade County), L (mobile collection required at some Regional Transportation Centers), M (preference for a site near 1500 Biscayne Boulevard), and N (requiring at least one site each in the north and south ends of Miami-Dade County). In response to subsection K, RN proposed to use 14 Quest patient care centers, the locations of which were further described in maps attached to RN's proposal as Appendix B. Three of the 14 Quest centers were represented to meet the preference expressed in subsection M. And RN offered three additional "third party sites" (plainly meaning, in context, sites that were not operated by Quest) to satisfy subsection N. There was and is nothing confusing about RN's response regarding collection sites. No reasonable, fair-minded person, upon reading pages 12 and 13 of RN's proposal, could reasonably conclude that RN was offering a total of only 14 collection sites. Next, four of the Quest sites proposed by RN are located in Broward County. Mr. Bevan decided that these Broward sites should be ignored. The RFP, however, did not prohibit a proposer from offering sites outside Miami-Dade County, and, significantly, RN's proposal satisfied the RFP's technical requirements concerning collection site locations without the Broward sites. Thus, an evaluator (as opposed to Mr. Bevan, who was not one) might have regarded RN's Broward sites either an added value that made RN's proposal more attractive or an unwanted option that neither added to, nor detracted from, RN's proposal. Either way, however, this qualitative decision was not properly Mr. Bevan's to make as a “technical advisor.” Mr. Bevan then subtracted six sites from RN's total because the proposal stated that the sites were available for blood draws only. (In fact, RN's proposal indicated that nine of RN's 17 total sites collected blood samples only; three of the nine are in Broward County and six in Miami-Dade.) Mr. Bevan's decision that "blood only" sites should not be counted was plainly contrary to the RFP, under which blood alcohol testing clearly was a required service. While the evidence showed that the District considers urine collection sites to be much more valuable than “blood only” collection sites, which it views as practically worthless, the RFP nevertheless did not disclose this preference or the relative weight of urine sites versus “blood only” sites. Simply put, the RFP did not allow the evaluators to ignore “blood only” collection sites. At bottom, a fair and balanced comparison (unlike Mr. Bevan's) would have shown that RN had proposed 17 total sites (four in Broward, 13 in Miami-Dade), of which nine (three in Broward, six in Miami-Dade) were "blood only" sites, leaving eight sites (one in Broward, seven in Miami-Dade) that were available for the collection of both urine and blood. An "apples to apples" comparison of Miami-Dade sites available for blood and urine testing would have been Global, ten versus RN, seven. Each evaluator, however, in weighing the relative merits of the two proposals, should have considered RN's ten additional sites——there was no warrant in the RFP for excluding them from the mix à la Mr. Bevan's analysis——and made an independent determination of the value added by those sites. Item No. 7. On this point, Mr. Bevan was unfair to RN——but only a bit. His comparison intentionally drew a distinction between Global's "mobile collection" (the term used in section V.L. of the RFP) and RN's "on-site collection," subtly implying that RN’s proposal might not be responsive, or as responsive as Global’s, to the RFP’s technical guidelines. In fact, however, in its proposal at pages II-2, V-1, V-2, and VIII-1, Global expressly had described the function of its mobile unit as being to provide "on-site" collections; even Global, in other words, considered mobile collection and on-site collection to be fungible concepts. Mr. Bevan's comparison chart thus somewhat unfairly gave Global a gentle semantic boost while concomitantly giving RN a little linguistic gig.8 Standing alone, this comparison would not be noteworthy. Viewed in the light of other, unfair contrasts, however, Mr. Bevan's mobile collection/on-site collection dichotomy takes on a slight hue of partiality.9 Item No. 8. Here, Mr. Bevan made a comparison that was highly unfavorable to RN. One the one side, he portrayed Global attractively as the incumbent vendor that, during a four- year tenure, has not exposed the District to an adverse litigation outcome, and which also provides services to U.S. Sugar (an agricultural concern in South Florida). On RN's side there was only a question mark——nothing more. The meaning was obvious: Global has good credentials, but RN's experience and litigation track record are questionable. This was terribly unfair. RN's proposal included two pages of references listing a number of current clients. Mr. Bevan's explanation at hearing for failing to acknowledge any of RN's references on his comparison chart was that RN's references "were much longer" and would not fit on the page, and that he had "put down what [he] could in the amount of time [he] had." 89. This explanation utterly fails to account for Mr. Bevan's misleading and prejudicial use of a question mark to describe RN's documented experience; it is not credible and is rejected.10 Regarding exposure to lawsuits, Mr. Bevan's comparison was gratuitous. The RFP did not ask for information concerning lawsuits; and the lack of adverse litigation outcomes, while perhaps interesting and even relevant, was not an evaluation criterion. Further, Mr. Bevan was aware of Global's litigation track record not because of information contained in Global's proposal (for such data was not included therein) but because he previously had monitored litigation against the District arising from OTETA testing. Despite relying on facts extrinsic to Global's proposal for this comparison, Mr. Bevan made no attempt to determine whether RN had exposed a client to an adverse litigation outcome and hence had no idea whether RN had or had not done so. Yet, despite the absence of any basis in logic or fact for such a conclusion, the question mark in RN's column (adjacent to the favorable comment about Global) strongly implied that RN either had omitted material information about litigation or disclosed something disturbing or questionable. The unavoidable net effect of this prejudicial and unfair comparison was to put an exclamation point on the fact that Global had served satisfactorily as the incumbent vendor (and thus was a safe choice)——while portraying RN as a pig in a poke (and hence a gamble). Item No. 9. Mr. Bevan shone a flattering light on Laboratory Corporation of America ("LCA," the laboratory used by Global)——only one glitch in four years!——while labeling Quest Diagnostics ("Quest," used by RN) "questionable." This was problematic for several reasons. First, the RFP did not specify a preference for any particular laboratory. Second, Mr. Bevan's judgment was not based on the respective proposals but on his personal experiences. He had been pleased with LCA's services and preferred that the District continue to do business with that laboratory. But, as the comparison chart pointedly neglected to mention, Mr. Bevan's negative opinion of Quest was based on just one incident in which Quest had been slow in reporting the results of a retest that had been requested by an individual who had initially tested positive at LCA and requested that Quest perform the confirmatory test.11 Third, the judgment expressed on the relative merits of the proposers' laboratories was plainly qualitative; in other words, Mr. Bevan was evaluating the proposals, which was not properly his role, for he was not a de jure member of the committee. Item No. 10. Mr. Bevan's representation to the committee that LCA performed adulterant testing at no cost to the District was not based on Global's proposal, which neither mentioned adulterant testing nor quoted a price for such service, but on his experience with Global. (Incidentally, neither Mr. Bevan's testimony, nor any other evidence, persuasively established that Global or LCA had, in fact, been performing adulterant testing. Rather, the District’s employees assumed that such was the case——as it may, or may not, have been.) Aside from the impropriety of relying on facts extrinsic to Global's proposal, Mr. Bevan's contrast with RN's proposal ("TestSure is broken out as a separate entity") was both incorrect and incomplete, producing a false, "apples to oranges" comparison. First, as four pages of descriptive information included in RN's proposal made clear, TestSure is Quest's trademark for its adulterant testing protocol, which Quest considers a "breakthrough in technology for the industry." Contrary to Mr. Bevan's statement, TestSure is not a "separate entity." Thus, the apparently-intended implication that RN's price was higher because it was proposing to use a “separate entity” (in addition to Quest) for adulterant testing was untrue. Second, the information provided by RN concerning TestSure, rather than being a negative strike against RN's proposal, as Mr. Bevan's comparison suggested, was (or should have been) helpful in evaluating RN's proposal, a plus. While the committee certainly could have chosen to discount or ignore Quest's glowing review of its own product as puffery, the fact was that while Global's proposal said nothing about adulterant testing, RN had submitted some information on the subject. Finally, Mr. Bevan did not specify that his remark about Global's supposed offer to provide adulterant testing at "no charge" was merely an assumption that, for all that appears in Global's proposal, may or may not be true. This omission was especially unfair to RN because RN had stated explicitly in its cost proposal that an additional dollar would be charged for an adulterant panel——and that the District could save the dollar by electing not to have the panel performed on general tests. An impartial summary would have acknowledged RN's prices for general tests, both with and without an adulterant panel, and noted that Global's proposal was silent as to whether its quote of $25.00 for general testing included an adulterant panel. To state unqualifiedly that Global would provide adulterant testing for free, when its proposal said nothing of the sort, was patently inequitable. The First Evaluation and Recommendation After meeting for two hours on April 11, and having considered Mr. Bevan’s comparison chart, the committee voted to recommend that the contract be awarded to Global. In the minutes of the meeting, it was reported that [b]oth Proposals were evaluated according to the criteria outlined in the proposal. A comparison was made of services provided, locations for testing, cost, and other requirements. The committee recommended that Global MRO be awarded the contract. In addition to providing a reasonable fee schedule, the locations for drug testing, and the prior outstanding service provided by Global MRO, supports the committee’s decision. RN timely protested the intended award, the Board referred the matter to DOAH, and a final hearing was scheduled for July 30, 2001. Before the final hearing, however, the Board determined that the April 11, 2001, meeting might have occurred in violation of the Sunshine Law. Accordingly, the final hearing was postponed to enable the committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law. The Second Evaluation and Recommendation The committee met for a second time on September 4, 2001, pursuant to a prior written notice of proceedings. The September 4 meeting was open to the public. Although each of the original members of the committee was asked to return, two of them——Mr. Diaz and Ms. Freeman——were unable to attend the second meeting. In their places appeared subordinates as “representatives,” Pat Parham for Mr. Diaz and Enrique Sacasa for Ms. Freeman. Four members of this committee had no direct involvement in or experience with the drug screening services that were the subject of the contract for which proposals had been solicited. Of the five, only Ms. Kidney was knowledgeable about the program areas and service requirements for which contractual services were being sought. Once again, staff persons were present, ostensibly to answer technical questions. Mr. Bevan and Mr. Conde returned. With them this time were Barbara M. Moss, District Director, Office of Professional Standards; Brenda Miles, Executive Director, Professional and Technical Staffing; and Linda Cantin, Supervisor, Division of Procurement Management. Mr. Bevan did not distribute his comparison chart at the committee’s public meeting and made only a couple of comments there in response to questions. After conferring, the committee found both proposals to be responsive and voted unanimously to recommend that Global be awarded the contract. In the minutes of the September 4, 2001, meeting, it was reported that [t]he committee agreed that both proposals were good, and clearly stated an understanding of the work to be performed. There were concerns expressed, however, regarding [RN’s proposal] in reference to the location and convenience of collection sites. . . . . [Global] was selected because of the larger number of collection sites for urine that are available and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and its experience. RN’s Protest By letter to the Board’s counsel dated September 6, 2001, RN amended its pending protest of the first recommendation to challenge the second proposed award with a newly-revised statement of grounds.12 As bases for relief, RN asserted that Global’s proposal was materially non-responsive for failure to comply with several of the RFP’s technical requirements; it also alleged that the committee’s evaluation had been flawed in several respects. Ultimate Factual Determinations Certain Ultimate findings of fact have been rendered below under the heading “Conclusions of Law.” This has been done for organizational convenience and for clarity of analysis. Accordingly, the findings announced in paragraphs 114, 120, 130, 134, 156, 159, 161-64, 167, and 169, infra, are hereby incorporated as Findings of Fact, as if fully set forth in the instant section of this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order rescinding the proposed award to Global. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of February, 2002.
The Issue The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.
Findings Of Fact Respondent began working for the City in August 2001. In November 2012 he was reclassified as a Stormwater Technician II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated effective March 11, 2015. See City Ex. 6. Respondent then requested a hearing to contest that action. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent." Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II. DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2015.
