The Issue The issue to be resolved in this proceeding is whether the Board's termination of Respondent's employment should be upheld.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. The severity of the discipline is meant to emphasize the serious nature of drug use in relation to education, the students and the school, and its employees must set an example. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct warranting termination. The Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Board. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Respondent, Escambia County School Board, terminating the employment of Patricia Gadson. DONE AND ENTERED this 2nd day of March, 1999, 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 2nd day of March, 1999.
The Issue Whether respondent committed the acts alleged in the Administrative Complaint, and, if so, whether respondent's license should be revoked or suspended, or whether other discipline should be imposed.
Findings Of Fact Respondent is a licensed pharmacist in the State of Florida, having been issued license number 005517, and was so licensed at all times material to the Administrative Complaint. The respondent is engaged in the practice of pharmacy at Interbay Discount Drugs, 4332 South Manhattan, Tampa, Florida, where he is the proprietor and the sole pharmacist. On April 23, 1986, Ms. Beth Christie, investigation specialist for the Department of Professional Regulation, conducted a pharmacy inspection of Interbay Discount Drugs. During the pharmacy inspection, Ms. Christie reviewed certain documents, including the Certified Exempt Narcotic Record of Retail Sales maintained by Interbay Discount Drugs. This record, or log, is required to be maintained by a pharmacist to reflect the pharmacist's dispensing of Schedule V drugs. The log must show to whom the Schedule V drug was dispensed, the date it was dispensed, and identify the dispensing pharmacist. The log is used to ensure that certain amounts of exempt drugs are not dispensed to the same customer within a 48-hour period. Since respondent was the sole pharmacist at Interbay Drugs, all the log entries are followed by his initials. Ms. Christie initially reviewed the log while conducting her inspection at Interbay Discount Drugs. She noticed the same names appearing over and over again throughout the log which covered approximately a two-year period. Subsequently, Ms. Christie reviewed the log more extensively and prepared a patient profile for Cynthia D. Anderson and Vester L. McDaniel based on the information contained in the log. The patient profiles contained the date the drug was dispensed to the patient, the drug dispensed, and the quantity. The patient profile revealed that Vester L. McDaniel received Robitussin AC, 2 oz., on the following dates in the 1 1/2-year period from November 30, 1984, through April 21, 1986: 11-30-84 04-25-85 08-20-85 11-21-85 02-08-86 12-04-84 04-27-85 08-22-85 11-23-85 02-10-86 12-11-84 05-02-85 08-24-85 11-26-85 02-12-86 12-15-84 05-07-85 08-27-85 11-30-85 02-14-86 12-20-84 05-11-85 08-29-85 12-03-85 02-17-86 12-22-84 05-16-85 09-02-85 12-04-85 02-18-86 12-27-84 05-21-85 09-05-85 12-07-85 02-21-86 12-31-84 05-25-85 09-07-85 12-10-85 02-24-86 01-05-85 05-27-85 09-10-85 12-12-85 02-26-86 01-10-85 05-29-85 09-12-85 12-14-85 02-28-86 01-15-85 06-03-85 09-14-85 12-17-85 03-03-86 01-22-85 06-07-85 09-17-85 12-19-85 03-10-86 01-29-85 06-11-85 09-21-85 12-21-85 03-12-86 02-02-85 06-15-85 09-26-85 12-23-85 03-14-86 02-06-85 06-18-85 10-01-85 12-26-85 03-17-86 02-09-85 06-22-85 10-03-85 12-28-85 03-19-86 02-12-85 06-28-85 10-08-85 12-31-85 03-21-86 02-16-85 07-02-85 10-10-85 01-02-86 03-24-86 02-18-85 07-06-85 10-12-85 01-04-86 03-26-86 02-21-85 07-09-85 10-14-85 01-06-86 03-28-86 02-23-85 07-13-85 10-15-85 01-08-86 03-31-86 02-26-85 07-16-85 10-22-85 01-11-86 04-02-86 03-01-85 07-18-85 10-24-85 01-14-86 04-04-86 03-05-85 07-20-85 10-26-85 01-16-86 04-06-86 03-08-85 07-23-85 10-29-85 01-18-86 04-09-86 03-14-85 07-30-85 10-31-85 01-20-86 04-11-86 03-18-85 08-01-85 11-02-85 01-22-86 04-14-86 03-23-85 08-03-85 11-05-85 01-24-86 04-17-86 04-04-85 08-06-85 11-07-85 01-27-86 04-19-86 04-06-85 08-08-85 11-09-85 01-29-86 04-21-86 04-10-85 08-10-85 11-14-85 01-31-86 04-18-85 08-13-85 11-16-85 02-03-86 04-20-85 08-17-85 11-19-85 02-06-86 In addition to the above, Mr. McDaniel received Terpin Hydrate with Codeine on September 19, 1985, and November 12, 1985. The record reveals that Mr. McDaniel received Robitussin AC, 2 oz., on October 14 and 15, 1985, and on December 3 and 4, 1985. The quantity of codeine contained in the Robitussin AC dispensed to Mr. McDaniel by respondent within the 48-hour period from 10-14-85 to 10-15-85 and the 48-hour period from 12-3-85 to 12-4-85 exceeded 120 milligrams. The patient profile of Cynthia D. Anderson revealed that Ms. Anderson received Robitussin AC, 2 oz. on February 24, 1984, and received Novahistine DH, 2 oz., on the following dates in the 2-year period from April 14, 1984, to April 23, 1986: 04-25-85 09-04-85 12-09-85 02-21-86 04-14-84 04-29-85 09-06-85 12-11-85 02-24-86 04-20-84 06-29-85 09-09-85 12-13-85 02-26-86 05-04-84 07-02-85 09-11-85 12-16-85 02-28-86 07-31-84 07-06-85 09-13-85 12-21-85 03-03-86 08-23-84 07-09-85 09-16-85 12-23-85 03-05-86 09-05-84 07-11-85 09-18-85 12-30-85 03-07-86 09-08-84 07-13-85 09-20-85 01-01-86 03-10-86 10-11-84 07-15-85 09-23-85 01-03-86 03-12-86 10-13-84 07-17-85 09-30-85 01-07-86 03-14-86 10-16-84 07-22-85 10-02-85 01-10-86 03-17-86 10-23-84 07-24-85 10-04-85 01-13-86 03-19-86 11-01-84 07-26-85 10-07-85 01-14-86 03-21-86 11-15-84 07-29-85 10-09-85 01-16-86 03-24-86 11-17-84 07-31-85 10-11-85 01-20-86 03-26-86 12-07-84 08-02-85 10-15-85 01-22-86 03-28-86 12-27-84 08-07-85 10-17-85 01-24-86 03-31-86 01-28-85 08-09-85 10-21-85 01-27-86 04-02-86 01-30-85 08-12-85 10-23-85 01-29-86 04-04-86 02-06-85 08-14-85 10-25-85 01-31-86 04-06-86 02-12-85 08-16-85 10-29-85 02-03-86 04-08-86 02-15-85 08-20-85 10-31-85 02-05-86 04-10-86 02-18-85 08-22-85 11-18-85 02-07-86 04-14-86 02-21-85 08-24-85 11-22-85 02-10-86 04-14-86 04-06-85 08-26-85 11-27-85 02-12-86 04-18-86 04-09-85 08-28-85 12-02-85 02-14-86 04-21-86 04-11-85 08-30-85 12-04-85 02-17-86 04-23-86 04-23-85 09-02-85 12-06-85 02-19-86 As the above shows, respondent dispensed Novahistine DH, 2 oz., to Ms. Anderson twice on April 14, 1986. 2/ The quantity of codeine contained in the Novahistine DH dispensed to Ms. Anderson on April 14, 1986, exceeded 120 milligrams. Ms. Christie asked respondent about the repeated dispensing of Robitusin AC and Novahistine DH to Mr. McDaniel and Ms. Anderson, and respondent stated that both complained of a chronic cough. However, Ms. Christie observed Ms. Anderson, who happened to purchase Novahistine DH while Ms. Christie was performing her inspection, and Ms. Anderson did not cough at all while she was in the store. Respondent also told Ms. Christie that he continued to provide the drugs to Ms. Anderson and Mr. McDaniel because "they were regular customers and purchased other items in his store [and] it would be awkward for him to refuse to sell the exempt narcotics to them." [T-30] Codeine is a very potent narcotic, and it can be addictive. Approximately 60 milligrams of codeine are contained in one ounce of Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine. Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine, in two ounce quantities, are Schedule V controlled substances. No more than two ounces of these drugs can be dispensed by a pharmacist to the same person within a 48-hour period without a prescription. Although Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine are cough depressants, there are much better things for people with chronic coughs than cough depressants that contain narcotics. A pharmacist who is presented with a request for Robitusin AC, 2 oz., by the same customer every two or three days should be very concerned and cautious. First, the pharmacist should be concerned about the health of the customer. A chronic coughing problem over a period of time should be treated professionally by a physician, not a pharmacist. A pharmacist should advise the customer to see a physician and refuse to sell the customer any more of the drug. Second, the pharmacist should be cautious because of the potential for abuse of the drug. It would be prudent for a pharmacist to refuse to dispense the drug after about three requests within a short period of time. To dispense Robitusin AC regularly over a two-year period cannot be considered dispensing the drug in good faith as a medicine. Any pharmacist dispensing the drug in good faith as a medicine would cease such regular dispensing of the drug long before two years had elapsed. The dispensing of Robitusin AC, 2 oz., and Terpin Hydrate with Codeine to Mr. McDaniel from November 30, 1984, to April 21, 1986, was not in good faith as a medicine. Novahistine DH is a essentially the same drug as Robitusin AC but made by a different company. The dispensing of Novahistine DH to Ms. Anderson from April 14, 1984, to April 23, 1986, was not in good faith as a medicine. Respondent admitted that he used poor judgement in dispensing the drugs to Mr. McDaniel and Ms. Anderson, but he denied that he dispensed the drugs not in good faith as a medicine. Mr. McDaniel was a heavy smoker and had a chronic cough. Respondent stated that he was just not aware that Mr. McDaniel had been receiving Robitusin AC for the period of time that he had. Respondent stated that Ms. Anderson had a family history of chronic bronchitis and respondent felt the medication was needed. Respondent also stated that he did not sell more than two ounces of either Robitusin AC or Novahistine DH to Ms. Anderson or Mr. McDaniel within a 48-hour period, although he admitted that his log reflected that such had occurred. Respondent contended that the customers had written in the wrong dates.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Pharmacy enter a final order finding respondent committed those acts set forth in Counts I, II, III, and IV of the Administrative Complaint, imposing an administrative fine of $200 for each of the four counts, for a total fine of $800, and placing the respondent on probation for a period of one year under such terms and conditions as the Board may deem appropriate. DONE and ORDERED this 17th day of April 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1987.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for consideration in this case are whether the Petitioner, Josephine Kimball, is entitled to an award of attorney fees from Respondent, Department of Health, as provided in Section 120.595, Florida Statutes (2003), and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Department, through its Bureau of Statewide Pharmaceutical Services (formerly the Bureau of Pharmacy Services), is the state agency responsible for administering and enforcing the Florida Drug and Cosmetic Act, Chapter 499, Florida Statutes (1997), which includes the regulation of the manufacture, promotion, and distribution of prescription drugs. The Department initiated an Administrative Complaint in August 1993 (1993 Administrative Complaint) while in the middle of an investigation and after participating in a federal and state force of agencies that executed a search and seizure of the business establishment and of the home of James T. Kimball and his wife, Josephine Kimball, both of which were located in Wesley Chapel, Florida. The Kimballs' business establishment was located at 29949 State Road 54 West in Wesley Chapel, Florida ("business establishment" or "29949 State Road 54 West"). The search and seizure took place on May 12, 1993, pursuant to federal warrants. The 1993 Administrative Complaint was issued to Discovery Experimental and Development, Inc. ("DEDI"), located at 29949 State Road 54 West and related to that company's alleged sale of drugs that were not approved by the Federal Drug Administration (FDA). After the 1993 Administrative Complaint was filed, the Department continued to investigate the activities of DEDI. Deborah Orr (Agent Orr) began working for the Department as a drug agent and investigator on or about 1993 and was assigned to investigate the underlying case until the case culminated. During the investigation, Agent Orr and other Department agents, investigators, and officials reviewed documents and other evidence seized during the search of the business establishment and the home of the Kimballs that tied both James and Josephine Kimball to several corporations that appeared to be connected to the manufacture and sale of certain unapproved drugs. Among the documents found and seized from the Kimballs' home, pursuant to the 1993 warrant and reviewed by Agent Orr, was the financial statement of James and Josephine Kimball dated April 14, 1992. According to that document, James and Josephine Kimball were 90-percent owners of DEDI, which "develops pharmaceuticals and chemicals for manufacturing" and had an assessed value of $1,000,000; James and Josephine Kimball were 90-percent owners of ASTAK, Inc. ("ASTAK"), a company that "manufactures custom order vitamins"; James T. Kimball was a 100-percent owner of Discovery Experimental and Development, Mexico N.A. (DEDI of Mexico), a company that "manufacture[s] pharmaceuticals" and ships to 12 countries; and James and Josephine Kimball were 83-percent owners of Discovery Tour Wholesalers, Inc. (Tours), which owned the real property located at 29949 State Road 54 West. The Department's investigation indicated that several companies controlled by the Kimballs had separate and distinct functions related to the unlawful drug enterprise. For example, it appeared that one company manufactured the unlawful drugs, another took and filled orders from customers for the unlawful drugs, and another put out promotional information and literature about the unlawful drugs. During the investigation, the Department determined that most of the corporations involved in the unlawful drug enterprise had common ownership and operated from 29949 State Road 54 West. The Department's investigation revealed that Josephine Kimball provided administrative and secretarial services, as well as "consultant services," for several corporations owned by her husband, James T. Kimball, and/or owned jointly by Mr. and Mrs. Kimball that were alleged and found to have been involved in unlawful drug activities. Prior to 1997, Agent Orr received and reviewed several checks written to Tours by companies operating out of the 29949 State Road 54 West location, specifically DEDI and ASTAK, both of which were involved in the manufacture and distribution of drugs that were not approved by the FDA. From a review of these checks, it appeared that Mrs. Kimball, in her individual capacity or in connection with her role at Tours, had signature authority on those corporate bank accounts because some of the checks written to Tours by DEDI and by ASTAK, on their respective bank accounts, were actually signed by Josephine Kimball. During the course of the Department's investigation, Agent Orr obtained and reviewed a letter and check which indicated that Josephine Kimball ordered and/or purchased self-inking signature stamps for "personal checks" for "R.R. Riot" and "R.C. Brown." The letter, which effectively placed the order for the self-inking signature stamps, was signed by Josephine Kimball, as the representative of "Discovery," and requested that the self-inking stamps be mailed to "Discovery, 29949 S.R. 54 West, Wesley Chapel, Florida." Moreover, the self-inking stamps were paid for by check on the account of DEDI and bore the facsimile signature of "R.C. Brown" and the hand- written signature of Josephine Kimball. The R.R. Riot and the R.C. Brown signature stamps were connected to DEDI of Mexico and B & B Freight Forwarding, Inc. (B & B Freight), respectively. According to documents reviewed by the Department, the "R.R. Riot" signature stamp was used to establish a bank account for DEDI of Mexico. A resolution, executed by James T. Kimball, as secretary of DEDI of Mexico, authorized the bank at which that company's account was established, to honor all checks or drafts or other orders of payment drawn on the DEDI of Mexico account that bore or purported to bear only the facsimile signature of R.R. Riot. The self-inking stamp for R.C. Brown was to include the facsimile signature of "R.C. Brown" and the following: B & B Freight Forwarding Pay to Order of Dis. Exp .& Dev. Inc. For Deposit Only Lloyd's Bank Acct. #12032151 During its investigation, the Department obtained bottles of liquid deprenyl from an individual in South Carolina who had ordered the product from Discovery of Mexico, c/o B & B Freight Forwarding" at 29949 State Road 54 West. Both DEDI of Mexico and B & B Freight, which were Respondents in the underlying proceedings and alleged to have manufactured, sold, or otherwise distributed drugs that were not approved by the FDA, in violation of Chapter 499, Florida Statutes (1997). In that proceeding, B & B Freight was determined to have violated the provisions of Chapter 499, Florida Statutes (1997), as alleged in the Administrative Complaint. Prior to issuance of the 1997 Administrative Complaint, Agent Orr wrote a report of her findings based on her multi-year investigation and sent them to her supervisor, who forwarded the report to Jerry Hill, R. Ph., Bureau Chief of the Department's Bureau of Statewide Pharmaceutical Services. Mr. Hill reviewed Agent Orr's report and other information and evidence obtained during the investigation. He also talked to some of the Department agents and/or investigators who participated in the investigation at various times during the years the investigation was on-going. Based on his review of Agent Orr's report and related information and evidence, Mr. Hill believed there were several companies involved in promoting and/or advertising, manufacturing, and distributing prescription drugs that were not approved by the FDA. The specific unapproved drugs were selegiline citrate (deprenyl) and some silvicidal products, some of which had been found during inspections of the premises at 29949 State Road 54 West prior to issuance of the 1997 Administrative Complaint. After reviewing all of the information and documents provided to him, Mr. Hill believed that some of the companies were more involved in the illegal drug operation than others. However, he also believed that all of the principals had some involvement in the illegal activity. A review of the documentation, particularly certain checks, provided to Mr. Hill indicated that Josephine Kimball had full signature authority on the checking accounts of several of the corporations that the Department determined were involved in the illegal drug activity. Based on checks seized pursuant to the federal search warrants, Mr. Hill determined that checks from DEDI, written to Tours for consulting fees, were signed by Mrs. Kimball. There was also documentation that Mrs. Kimball signed checks from ASTAK that were written to Tours. Based on the information and evidence Mr. Hill had received, he believed that the corporations that were engaging in the illegal drug activities involved two principal natural persons, James and Josephine Kimball. Mr. Hill believed that he had sufficient evidence to tie Josephine Kimball and several of the companies, including DEDI, DEDI of Mexico, ASTAK, and Tours, together. Given the companies' common ownership, and Josephine Kimball's involvement in those companies, Mr. Hill was concerned that if the Department did not prosecute all the entities and individuals involved in the operation, the illegal activity would continue and the unapproved drugs would get into commerce. After careful consideration of all the information and evidence provided to him by Department investigators, agents, and other Department officials familiar with and involved in the investigation, Mr. Hill concluded that Josephine Kimball participated in the illegal drug enterprise and was, therefore, in violation of Chapter 499, Florida Statutes (1997). The Department expanded its administrative enforcement action in the underlying case by the Administrative Complaint dated June 24, 1997, based on its on-going investigation of illegal activities taking place at the 29949 State Road 54 West. Mr. Hill, on behalf of the Department, issued the 1997 Administrative Complaint, and that case was later assigned DOAH Case No. 97-3836. Pursuant to a Delegation of Authority dated February 19, 1997, Mr. Hill was authorized to initiate and pursue to conclusion any legal or administrative action authorized by Chapter 499, Florida Statutes (1997). In the underlying administrative proceeding, after taking and considering testimony and documentary evidence, the Administrative Law Judge issued a Recommended Order finding that the Department failed to prove the allegations against Josephine Kimball by clear and convincing evidence and recommending that the charges against her be dismissed. However, the Recommended Order made no finding that the Department participated in the underlying proceeding against Petitioner for an improper purpose. With regard to the corporate Respondents in the underlying proceeding, the Recommended Order found that Discovery Distributing, Inc., DEDI, ASTAK, and B & B Freight, violated the provisions of Chapter 499, Florida Statutes (1997), as alleged in the underlying proceeding and recommended that those Respondents be fined a total of more than $3.5 million dollars for the violations. The Department adopted the Recommended Order in the underlying proceeding in its Final Order. In this proceeding, Petitioner asserted that the Department brought the underlying proceeding against her for "personal" reasons. In support of this assertion, Petitioner presented the testimony of one witness, Petitioner's adult daughter, Toni Kimball, who was also a Respondent in the underlying proceeding. Toni Kimball testified that at some point, Agent Orr and/or counsel for the Department told her that the Department took the underlying action against Josephine Kimball because of Mrs. Kimball's relationship with James T. Kimball and that the case was "no longer business," but was "personal." Ms. Kimball's testimony is not credible or persuasive and is, therefore, rejected. Clearly, at the time the Department initiated the underlying proceeding and participated in that proceeding, there was sufficient evidence of Josephine Kimball's connection and involvement with the companies engaged in the illegal drug activities to bring and pursue the administrative action against her. At the final hearing in the underlying proceeding, there was voluminous evidence that appeared to tie Petitioner to the corporate Respondents found to have engaged in the illegal drug activity with which they were charged and that implicated her in some of these activities. Josephine Kimball and Tours, a company she operated, was represented by Elliot Dunn, Esquire, in the underlying proceeding, including and through the final hearing. Mr. Dunn withdrew from the case prior to Petitioner's filing her Proposed Recommended Order. Mr. Dunn did not testify at this proceeding and no time records related to his representation of Josephine Kimball or any of the other Petitioners in the underlying proceeding were available for review, inspection, or consideration. Josephine Kimball did not pay Mr. Dunn for the legal services that he provided. Instead, he was paid by ASTAK, one of the nonprevailing parties in the underlying proceeding and, later, by Strictly Supplements. There was never a contract between Josephine Kimball and Mr. Dunn that defined the terms and conditions of Mr. Dunn's legal representation on behalf of Josephine Kimball. However, during the time Mr. Dunn represented Josephine Kimball, he was in-house counsel for ASTAK and/or DEDI, a job for which his annual salary was about $52,000. Petitioner's expert witness opined that a reasonable hourly rate for an attorney representing each of the Petitioners, including Josephine Kimball was $175 to $350. Petitioner's expert did not form an opinion as to the total number of hours reasonably spent by Mr. Dunn representing Josephine Kimball in the underlying proceeding. Rather, the expert testified that he utilized Rule Regulating Florida Bar 4-1.5, which deals with the reasonableness of fees. Based on the factors in that Rule, Petitioner's expert opined that reasonable attorney's fees incurred by Josephine Kimball in the defense of the underlying case are $50,000, assuming the hourly rate of $175. Rolando J. Santiago, Esquire, provided legal services to Josephine Kimball in the post-hearing phase of the underlying proceeding. Specifically, Mr. Santiago reviewed the case file and the record in the underlying case and prepared the Proposed Recommended Order and related pleadings for Josephine Kimball. Mr. Santiago's hourly rate is $175 and he spent 92 hours providing legal services to Josephine Kimball in the underlying proceeding. Therefore, Mr. Santiago's fee for the legal work he performed for Josephine Kimball is $16,100. In light of the findings and conclusions reached in this Recommended Order, no findings are made or necessary regarding issues related to the reasonableness of the attorney's fees, the quality of the evidence presented on that issue or any other issues related to attorney's fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Josephine Kimball's Petition for Attorney Fees and Costs be DISMISSED. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 January, 2005.
Findings Of Fact At all pertinent times, Aubrey Moran, who holds a Florida pharmacist's license, No. 0010982, was the managing pharmacist and the dispensing pharmacist at Lake Mary Pharmacy, 185 North Country Club Road, Lake Mary, Florida, a community pharmacy that holds permit No. 0007301. Half a block away from Lake Mary Pharmacy Robert L. Bevier, M.D., who was then Lake Mary's "principal general practitioner," had his office. COCAINE In the fall of 1981, Dr. Bevier brought respondent an article from a medical journal, which read, as follows: Make Your Own TAC; It Works Well Atlanta--An Atlanta emergency physician has reported good results with a topical anesthetic called TAC made of tetracaine, cocaine, and epinephrine. Dr. Michael Kessler, director of a seminar on Outpatient Surgical Techniques for the Non-Surgeon, said his group at a freestanding emergency clinic sees large numbers of pediatric patients, and TAC has worked well as a topical anesthetic for children as well as adults. The recipe for TAC (taken from the January 1980 Journal of the American College of Emergency Physicians, according to Kessler) calls for 300 mg. tetracaine hydrochloride powder; one-fourth ounce (7,090 mg.) cocaine flakes; 30 cc 1:1000 inject epinephrine, and distilled water. The tetracaine is dissolved in a small amount of distilled water; the epinephrine and cocaine added; and the mixture combined with distilled water to make 60 cc volume. It should be stored in a brown bottle and has a shelf-life of 21 to 30 days. Dr. Bevier asked Mr. Moran to compound some of this mixture. Mr. Moran did not keep cocaine in stock ordinarily, but he acquired some from a wholesaler and dispensed 60 cc. amounts of the TAC solution to Dr. Bevier on three occasions. On each occasion Dr. Bevier wrote a prescription for himself on a form on which "AB 8796510" appeared just under his signature. The prescriptions were dated September 8, November 3 and November 23, 1981, and were filled on the dates written, except for the first, which was not filled until September 14, 1981, perhaps because of a delay in obtaining ingredients. Mr. Moran was under the impression that Dr. Bevier was using the solution as a local anesthetic in his practice for procedures like the removal of warts. Solutions of this type are also used to anesthetize mucous membranes. Cocaine in solution with epinephrine is of no use to an abuser. Deposition of Charles L. Park, p. Testimony of Respondent. (T. 112) In early December of 1981, Dr. Bevier asked Mr. Moran for the TAC ingredients to keep on hold in his office so that he could mix the solution up along, as needed. Mr. Moran's only information about shelf life was what he had read in the article from the medical journal Dr. Bevier had shown him. He did in fact deliver the ingredients to Dr. Bevier, including four quarter ounce packages of cocaine hydrochloride flakes, on December 3, 1982. Dr. Bevier signed the official Drug Enforcement Administration form (DEA 222) required in connection with this transaction, and delivered it to the pharmacy. INVESTIGATOR ARRIVES After the cocaine flake purchases, Will A. Merrill, an investigator for petitioner Department of Professional Regulation visited Mr. Moran in the course of investigating Dr. Bevier. On May 27 and 28, 1982, Mr. Merrill examined respondent's records, and talked to Mr. Moran. Precisely what was said is a matter of dispute. At the very least, Mr. Merrill advised Mr. Moran that irregularities in Dr. Bevier's record keeping regarding Schedule II drugs were being looked into. Cocaine, Demerol (Meperidine) and Dilaudid are all controlled substances, and are listed on Schedule II in Chapter 893, Florida Statutes. The investigation culminated in an emergency suspension of Dr. Bevier's license to practice medicine on September 12, 1982. Thereafter the investigation of respondents began. DEMEROL AND DILAUDID Lige Williams, a cancer victim, was Dr. Bevier's stepfather. On July 14, 1982, and again on August 2, 1982, Mr. Moran filled prescriptions for Mr. Williams written by Dr. Bevier, each for sixty 100 milligram tablets of Demerol. He dispensed the medicine to Mr. Williams. On August 9, 1982, Mr. Moran dispensed a 20 milliliter ampule of Demerol to Dr. Bevier for office use after Dr. Bevier signed the appropriate Form 222. Dr. Bevier himself came into Lake Mary Pharmacy with a prescription for one hundred 100 milligram tablets of Demerol for Lige Williams on August 13, 1982, and Mr. Moran filled the prescription. On August 16, 1982, Mr. Moran dispensed a second 20 milliliter ampule of Demerol to Dr. Bevier for office use, again after Dr. Bevier signed the appropriate Form 222. Three days later Dr. Bevier presented another prescription for a hundred 100 milligram tablets of Demerol for Lige Williams, which Mr. Moran filled. On August 26 and September 8, 1982, Dr. Bevier signed two more Form 222s and Mr. Moran dispensed two more 20 milliliter ampules of Demerol for office use. Dr. Bevier told Mr. Moran that the Demerol ampules were "primarily . . . for Mr. Williams' use." (T. 103) The parties stipulated that Mr. Moran dispensed another fifty 100 milligram tablets of Demerol at some time "from or about May 1, 1981 until August 30, 1982" to unspecified person(s) under unspecified circumstances. On September 9, 1982, Mr. Moran filled a prescription Dr. Bevier wrote and personally presented for Lige Williams for 100 four milligram tablets of Dilaudid. When Mr. Moran questioned the quantity of tablets, Dr. Bevier said that Lige Williams was leaving Lake Mary to go back to his own home and that he "want[ed] him to have enough tablets to get him up there and hold him until he can be seen by a physician up there." (T. 93) Dilaudid and Demerol in the sequence and dosages to be inferred from the prescriptions Mr. Moran filled for Mr. Williams, even assuming Mr. Williams received the full contents of all four ampules, are commonly and appropriately prescribed for terminally ill cancer patients, according to the uncontroverted medical testimony.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaints filed against respondents. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984. COPIES FURNISHED: Bruce D. Lamb, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. C. Hutchison, Jr., Esq. Hutchison & Mamele 230 North Park Avenue Sanford, Florida 32771 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to these proceedings, the Respondent, David Goerg, was a licensed registered nurse in the State of Florida, holding license number 83239-1, and was an advanced registered nurse practitioner, holding license number 83239-G. At all times pertinent to these proceedings, the Respondent was employed as an advanced registered nurse practitioner in Ward D at Jackson Memorial Hospital. Ward D is a prison ward at Jackson Memorial Hospital for patients who are from the local jails or in the custody of or under detention by local law enforcement officials. Advanced registered nurse practitioners employed in Ward D at Jackson Memorial Hospital functioned under a set of "protocols," introduced as Petitioner's Exhibit 2. These protocols were entitled "Suggested Protocols" and were not officially adopted by the hospital. Under these "protocols," a person suspected of cocaine ingestion for purposes of smuggling could be released under one of the two following sets of conditions: Observation for not more than 24 hours after a clear bowel movement plus negative rectal examination and x-ray studies; Same as (a), supra, but suspect may waive the 24-hour observation period by signing a release of responsibility. The remainder of the protocols stress that patients are not to be treated as prisoners and are to be regarded as in need of diagnosis and therapy. Methods of diagnosis are solely at the discretion of the Prison Medical Service (PMS) medical personnel. According to Dr. Al-Sheikh, a resident radiologist, x- rays cannot exclude the presence of cocaine packets. X-ray studies will be either "positive" (identifiable cocaine packs) or "inconclusive" because x-rays cannot determine what causes opaque areas on the bowel. On August 25, 1984, a female patient was received in Ward D of the Jackson Memorial Hospital for suspected cocaine ingestion. Although the initial paperwork on this patient was prepared by Phyllis Fields, ARNP, at some point during the patient's assessment in Ward D the management of the patient was transferred to Respondent. An x-ray study was made of the patient by Dr. Al-Sheikh, and a rectal examination of the patient was performed by Respondent. This rectal examination revealed stool, which was inconsistent with the profile historically observed with "body packers" (persons ingesting cocaine for purposes of smuggling). The x-ray studies of the patient were reviewed by Dr. Al-Sheikh, who labeled them "inconclusive" on the basis of inability to determine what caused an opaque area in the patient's bowel. In applying this standard for assessing x-rays to the conditions for release, a patent would never be eligible for release on the basis of a "negative" x-ray study, because there is no such classification. X-rays are either positive or inconclusive. Dr. Al-Sheikh made a preliminary finding that there was at lease one ovoid density which could represent cocaine or feces. Dr. Al-Sheikh conferred with Dr. Moriollo, who confirmed this conclusion. Dr. Al-Sheikh's final report stated: "At least one ovoid density in the region of the splenic flexure of the colon which could represent cocaine bags; however, feces cannot be excluded." Respondent discussed this patient's x-rays and condition with Dr. Al-Sheikh, pointing out that it was highly unlikely that a "body packer" would have only one small packet of cocaine and that the presence of feces in the lower colon was inconsistent with the conditions generally observed in body packers. Dr. Al- Sheikh agreed with Respondent, who charted that the x-rays had been negative and ordered the patient released. Respondent was authorized to release patients upon negative findings. However, Dr. Al-Sheikh did not alter his diagnosis of x-rays as stated above. Respondent released the patient because rectal examination revealed stool, which was not found generally in body packers who take laxatives to clean out their bowels to enable them to carry the maximum number of packages. The patient's x-ray study revealed only one small opaque area. Historically, body packers do not carry only one packet of cocaine. Generally, they will ingest in excess of 50 packets. There was no evidence presented that the patient was ever in any danger or was, in fact, a body packer. This matter became an issue after Respondent's decision was questioned by the registered nurse supervisor. Evidence was also received that a contract existed between various law enforcement agencies, to include the Custom Service, and Jackson Memorial Hospital to provide the medical services to these suspected body packers, and that said patients retained in the ward were admitted as private patients by the supervising physicians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Respondent be dismissed. DONE AND RECOMMENDED this 7th day of August 1984 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David Goerg 9395 Southwest 181st Street Perine, Florida 33156 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202
The Issue The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris. During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing 460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States. Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes. Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida. Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported. Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida. Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986. The street value of cocaine in the Miami area in July, 1986 was $35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. COPIES FURNISHED: Douglas Stratton 505 Lincoln Road Miami Beach, Florida 33139 William Watson and Jeffrey Dikman Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Sam D. Alexander Executive Director 102 Carlton Building Tallahassee, Florida 32399-0100 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32399-0100 =================================================================
