The Issue The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.
Findings Of Fact Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2 Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was intoxicated, and Respondent voluntarily reported his alcohol- related problem. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after 17 days and could not afford the daily rate of $833 to complete the remaining 11 days. Respondent returned to duty sometime between January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous. DONE AND ENTERED this 23rd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2007.
The Issue Whether, in evaluating the responses to an Invitation to Bid and in making a preliminary decision to award the subject 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 At all times relevant to these proceedings, Respondent has been the duly-constituted school board for Miami-Dade County, Florida. Respondent issued the subject ITB to obtain the services of an organization to screen applicants for employment and existing employees for drug use. Screening of employees subject to the Omnibus Transportation Employee Testing Act (OTETA) was included in the subject ITB. The purpose of the subject ITB was stated as follows in paragraph 1 of the section styled “Special Conditions”: The purpose of this bid is to 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. [1] Petitioner and Mercy timely filed responses to the ITB. Following the bid opening on May 23, 2006, Respondent determined that the bid award should go to Mercy, which was the low bidder. After Mercy, Petitioner was the next low bidder.2 Petitioner thereafter timely filed its notice of intent to file a bid protest, which was followed by a timely filed bid protest. Paragraph 4 of the Special Conditions Section of the ITB (paragraph 4) pertained to technical requirements and provided, in part, as follows: TECHNICAL REQUIREMENTS: The following items, which shall constitute proof of technical competency, are requested to be submitted with the bid, or within three (3) days of request: * * * Copies of the certifications/licenses of all collection site staff and laboratory staff who will be handling specimens in the chain of custody as indicated in Attachment B. A copy of the quality assurance program of the testing laboratories, which must encompass all aspects of the testing process as indicated in Attachment B and Attachment E. List all collection sites, which must include the site address and copy of the certification of each site to be considered for this bid. Number of mobile sites available and proof of compliance and/or certification of mobile sites, if applicable. When it submitted its initial response to the ITB, Mercy did not specifically respond to the items listed in subparagraphs b., c., d., and e. of paragraph 4. On May 24, 2006, Respondent wrote to Mr. Rey, Mercy’s, laboratory director and the person responsible for Mercy’s response to the ITB, requesting copies of documents responsive to subparagraphs b., c., d., and e. of paragraph 4. Mercy thereafter timely supplied the requested information. CERTIFICATION Attachment B to the ITB contained the following pertaining to certification: A laboratory must be certified by the United States Department of Health and Human Services (DHHS). DHHS has established comprehensive standards for laboratory policies, procedures, and personnel, which provide quality assurance and performance testing specific to urine testing. To be certified, a laboratory must be capable of testing for, at a minimum, the following classes of drugs: Alcohol, Marijuana, Cocaine, Opiates, Amphetamines, Barbiturates, Benodiazepines, Methaqualone, and Phencyclidines, as listed in Attachment E. There was a dispute between the parties as to whether Mercy demonstrated it had the requisite certification. That dispute is resolved by finding that Mercy demonstrated that it had the requisite certification to perform all testing other than the OTETA testing.3 Mr. Rey testified, credibly, that Mercy intended to subcontract out the OTETA testing to a laboratory certified to perform such testing. Mercy did not identify the entity that would conduct the OTETA testing, however, there is nothing in the ITB to prohibit such subcontracting and there is nothing in the ITB that would require a bidder to have such a subcontract in place at the time it submitted its response to the ITB. Further, there is no requirement in the ITB that the bidder identify the entity that would serve as the subcontractor for the OTETA testing.4 There was also a dispute as to whether the certifications provided by Mercy would suffice as certification for the contemplated collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. Mr. Rey testified, credibly, that the collection sites could be operated by Mercy pursuant to its existing certifications. MEDICAL REVIEW OFFICER Attachment B contained the following in paragraph 17 under the heading of “Compliance”: 17. Reporting and Review of Results. (The service of a Medical Review Officer (MRO) is required to review ALL [sic] test results. The MRO may NOT [sic] be an employee of the laboratory. Mercy did not identify the person or organization that would serve as the MRO in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non- responsive because Paragraph 17 is merely a statement of industry practice. The ITB did not require bidders to identify the person or organization that would serve as the MRO for the winning bidder. THIRD PARTY ADMINISTRATOR A laboratory performing the type screening contemplated by the ITB must have a third party administrator (TPA) to administer the drug testing program. As with the MRO, a TPA must be independent of the laboratory to avoid conflicts of interest. Mercy’s response did not identify the person or organization that would serve as the TPA in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non-responsive because the ITB did not require bidders to identify the person or organization that would serve as the TPA for the winning bidder. IDENTIFICATION OF COLLECTION SITES Under the heading of Collection and Screening Site Parameters in Attachment B, Technical Requirements, the ITB provides, in part, as follows: Collection and screening sites shall be accessible Monday through Friday from 8:00 to 4:30 p.m., at a minimum, and shall meet the following parameters: The following locations [sic] parameters are examples of locations, which shall comprise the areas for collection and drug screening to insure convenience for applicants and employees: Area 1. East of 27th Ave. from Flagler St. North to 215th St. Area 2. West of 27th Ave. from Flagler St. North to 215th St. Area 3. East of State Road 836, south to intersection of US 1, then south to 392nd St. Area 4. West of State Road 836, south to intersection of US 1, then south to 394th St. * * * 4. At least one site in the North end 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. Mercy’s response to the foregoing was to provide specific addresses to two locations that were presently available as collection sites, to advise that it had a mobile collection site, and to provide three approximate locations where it would establish collection sites if awarded the bid. There was a dispute between the parties as to whether Mercy was responsive to the foregoing item pertaining to collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. The ITB did not require bidders to provide specific addresses for collection sites, nor did it require bidders to specify the hours of operation of each proposed collection site. The testimony of Ms. Fahmy and Ms. Jones established that Mercy adequately responded to this item of the ITB. BREATH ALCOHOL TESTING Mercy’s response to the ITB did not separately address breath alcohol testing or certification for such testing. Mercy’s response did include bid prices on specified breath alcohol testing procedures as required by the ITB. There was no requirement that Mercy provide a separate certification for breath alcohol testing. Petitioner is a TPA, not a laboratory, and is the existing provider for the drug screening services contemplated by the ITB. Petitioner intended to subcontract all laboratory work required by the ITB. Petitioner’s response to the ITB was responsive. Mercy’s response to the ITB was also responsive. Mercy committed to comply with all requirements of the ITB and it established by its responses that it had the wherewithal to meet that commitment. Mercy was the low, responsive, responsible bidder on the ITB.
Conclusions For Petitioner: Holiday Hunt Russell, Esquire The Law Offices of Holiday Hunt Russell, Chartered 1930 Harrison Street, Suite 309 Hollywood, Florida 33020 For Respondent: Stephen L. Shochet, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s bid protest and awarding the ITB to Mercy. RESERVATION OF JURISDICTION Jurisdiction is reserved to rule on Petitioner’s Motion for Attorney’s Fees and Costs following Respondent’s entry of a Final Order in this matter. DONE AND ORDERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 18th day of December, 2006.
Findings Of Fact Petitioner, the Agency for Health Care Administration, is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times pertinent to this proceeding Respondent has been a licensed Registered Nurse, having been issued license number RN 1730452. On July 26, 1993, Respondent was admitted to Palmetto General Hospital where she was given a blood alcohol test. The tests revealed that she had a blood alcohol level of 0.317. The medical records maintained in the regular course of its business reflected that Respondent was diagnosed by Dr. Samuel Pinosky as suffering from depression and alcohol dependency. 1/ On July 29, 1993, Respondent was referred to the Intervention Project for Nurses (IPN), an organization that provides assistance to nurses who suffer from addiction. Respondent refused to cooperate with the IPN and stopped attending meetings during August of 1993. On October 29, 1993, Dr. Pinosky noted in his progress notes that he had seen Respondent and that she has "poor insight into [her] alcoholism" and that her "control issues" were evident. Respondent was subsequently evaluated by Dr. John Eustace, the medical director for the Addiction Treatment Program at Mount Sinai Medical Center of Greater Miami. As of December 10, 1993, Dr. Eustace was of the opinion that Respondent suffered from active alcohol abuse and that she was a potential danger to the nursing profession and to patients whom she might serve. Dr. Eustace noted that Respondent was resistant to usual alcohol rehabilitation treatment modalities. On or about December 29, 1993, Respondent was evaluated by Dr. Stephen Kahn, a psychiatrist and addicitionalist. Dr. Kahn prepared a report based on his evaluation and history of the Respondent. His report, dated January 10, 1993 (sic), 2/ provided, in pertinent part, as follows: Ms. Cifuentes presents a very interesting picture, in that she has a history of psychotic episodes over a nine year period, and functioned very little for almost 15 years, and now [has] what appears to be a somewhat long standing, but more recently quite florid, alcoholism. She shows no sign of any psychotic symptomatology at this time, but her mood is clearly very labile. She clearly suffers addiction to alcohol, and although she has some insight into this disease, she is also in a considerable amount of denial. Emotionally, she has not accepted this disease, and clearly does not want to look at this any longer. Given her degree of denial, and her emotional instability, exacerbated by the recent loss of her husband in a plane accident, the prognosis is not good. . . . [S]he is a high risk candidate to relapse. I do not believe it would be safe for this woman to practice nursing without further therapy geared toward recovery from addiction with possible psychiatric intervention as necessary. Kenneth W. Thompson, M.D., was accepted as an expert witness in the field of addiction medicine. Dr. Thompson testified without contradiction that alcoholism is a disease that requires treatment. There was no evidence that Respondent has accepted the offers of treatment that have been made to her by the IPN or that she has otherwise sought or received treatment for her alcoholism. Dr. Thompson opined with reasonable medical certainty that the Respondent is unsafe to practice nursing due to her alcoholism and due to mental illness. Dr. Thompson's opinions are consistent with the uncontradicted evidence in this proceeding. Based on the record of this proceeding, it is found that Respondent is unsafe to practice nursing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes the licensure of the Respondent, requires the IPN to provide her services if she requests assistance, and provides for reinstatement of her licensure on appropriate terms and conditions upon proof that she can safely practice. DONE AND ENTERED this 10th day of October 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of October 1995.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Clara Carr, was an inmate at the Florida Correctional Institution. The Respondent Commission is responsible for establishing Presumptive Parole Release Dates (PPRD's) for all inmates in the custody of the State of Florida who meet the requirements of Section 947.173, Florida Statutes. Petitioner met all of the requirements of that section and was entitled to a PPRD initial interview on November 25, 1985. In the establishment of a PPRD, the inmate is first interviewed in the field by an examiner who evaluates and scores the inmates on a form which is then sent to the full Commission which also scores the individual based on salient factors which may be aggravated or mitigated because of other permissible factors. If the Commission decides to assess an aggravating factor, the amount of time is discretionary within certain time limits. Initially, the Commission looks at the offense and its severity in setting a salient factor score and uses that as a beginning. Then the jail time prior to the admission to the Department of Corrections facility, if any, is removed and the pre and post sentencing reports, the interview, and other reports of public hearings and the like are evaluated as aggravating or mitigating factors. The aggravating factors are generally set out in the rule in question here but the list in question in the rule is not all inclusive. The Commission may consider anything which can be founded on a valid or reasonable connection to the action taken. Petitioner was interviewed by Commission staffers on November 25, 1985, for the purpose of setting her PPRD. By action of the Commission at a meeting held on January 8, 1986, the PPRD was established to be December 28, 1988. This date was arrived at by initially utilizing the maximum matrix of 32 months set for her offense and the conditions thereof aggravated by a history of alcohol abuse listed in the pre-sentence investigation; the psychological interview; and the admissions summary, for which the Commission added an additional 36 months. When that time was applied to the commencement of sentence, April 28, 1983, the PPRD was established as stated above. On January 30, 1986, through counsel, Petitioner requested a review of her PPRD alleging that the rule under which the Commission had aggravated her PPRD (Rule 23-21.10(4)(a)2b) is invalid. Petitioner claimed that alcoholism is a treatable illness and it is improper and illegal to aggravate on such grounds. Petitioner cited Article 1 Section 2 of the Florida Constitution; Section 396.022(1), Florida Statutes; 42 USC 4541(a)(8), and other authorities. A commission meeting was held on February 26, 1986, to consider Petitioner's request for review of her PPRD. The Commission did not change it holding that the rule in question was appropriate and provided for the aggravation of a PPRD for history of alcohol abuse. Consequently, the PPRD remained at December 28, 1988. In the pre-sentence investigation conducted by officials of Marion County, Florida, in August, 1983, which was presented to the Judge at the time Petitioner was sentenced and which was considered by the Commission at the time the PPRD was established, Petitioner is alleged to have indicated that she had been drinking very heavily for several hours the night of the incident and does not remember any of the circumstances surrounding it. She described herself as a "weekend drinker" of beer and liquor and denies the use of any drugs, but it is significant to note that her nickname in the community is "Boozie." Though Petitioner denied having a prior arrest record, the records of the Marion County Sheriff's Office and the Ocala Police Department indicate a series of arrests going back to January, 1975, five of six of which relate to aggravated battery or assault and battery, in some cases with a deadly weapon. During the admissions examination conducted at the time Petitioner entered FCI, she indicated that she did not drink, but also that she is a weekend alcoholic. The evaluator was of the opinion that her alcoholic involvement was more than just weekends involvement and in addition, she was diagnosed by the institutional psychiatrist as having an adjustment disorder. She was described as being very aggressive and one who would probably display aggressive behavior if placed under too much stress. The Commission is required, under the provisions of Sections 947.16 and 947.172, Florida Statutes, to provide the Petitioner with a PPRD and to compute that date according to objective parole guidelines outlined in Section 947.165, Florida Statutes. In determining the PPRD, the Commission may use aggravating or mitigating circumstances but these circumstances must not be duplicative of the severity of the offense behavior or the salient factor score arrived at pursuant to Sections 947.1651 and 947.1722, Florida Statutes. The Commission was delegated rulemaking power by Section 947.07, Florida Statutes. Consistent with the authority, the Commission developed parole guidelines outlined in Rule 23-21.10, Florida Administrative Code. The aggravation factor which is the subject of the instant challenge is contained in Rule 23-21.10(4)(a)2b, Florida Administrative Code. This Petitioner is a 28-year old female serving her first felony conviction from Marion County, Florida, for aggravated battery with a dangerous weapon having been sentenced to a term of 10 years (less 81 days jail time), on July 18, 1983. She was received at FCI on July 22, 1983, and presently has a maximum release date of April 25, 1993. Under the provisions of the rule cited above, the Commission may aggravate a Parole Release Date if the inmate has demonstrated a history of alcohol or drug abuse. The Petitioner's PPRD was aggravated for that reason because the history of her alcohol abuse relates to negative behavior on her part. This history of alcohol abuse alone would not be sufficient to cause the Commission to aggravate a PPRD. Here, however, there was a showing of increased risk on the part of Petitioner as a potential parolee. The Commission felt that she was a risk due to the interrelation of her history of bad behavior and alcohol consumption. Even though the rule in question does not specifically refer to aberrant behavior as related to the alcohol abuse as grounds for aggravation, it is nonetheless implied therein and a logical and reasonable extension and interpretation of the rule. The Commission does not specifically consider that the alcohol abuse may stem from a medical condition. It deals with results or behaviors regardless of the cause of the behavior. It is not the function of the Commission to deal with the cause of the problem, but to evaluate each inmate for parole on the basis of that inmate's specific situation. There is no formula for evaluation but instead, it is the best collective judgment of the risk factors in the individual case as arrived at by the members of the Commission. The matrix time ranges are limits of foundation times and the other factors are add-ons or subtractables. If this were not so; if there were to be no independence of thought and judgment by members of the Commission; there would be no need for people to make up the Commission and to make the decision. This function could be performed by a machine on the basis of factors fed into it. Petitioner contests the validity of the rule on the basis that it does not consider the fact that alcoholism is a sickness rather than a mental condition. At the time the rule complained of was drafted, the Commission hired Florida Research Center, Inc. as consultants to help come up with appropriate matrices and salient factors which included alcohol and drug abuse. In addition to this, a survey was conducted in 1978 of 10 individuals including the Commissioners as to how certain factors should be rated. Five of the ten parties questioned rated drug and alcohol abuse as number one. Two others rated those conditions as second in importance. Further, the Commission was provided with the professional literature considered by authorities at the time the preponderance of which supported these evaluations. It is clear that the legislative intent behind Chapter 947, Florida Statutes, was to have rules in effect for the Commission to use in establishing PPRD which call for the use of objective parole criteria within certain limits. Under the statute, the rule need not specify a number of months or a range of months for aggravation due to alcohol abuse. The Commission has not suggested to Petitioner that she seek treatment for her alcohol abuse nor has it offered to reduce her sentence if she should do so. It would be inappropriate for the Commission to do this as a part of a determination but it would not be inappropriate for the interview staff to suggest it as a matter of course. It is not the role of the Commission to suggest the course of an inmate's confinement or rehabilitation. That subject is within the purview of the Department of Corrections. The Commission's function is to assess the propriety of returning the inmate to society and the issue to be decided by the Commission at its hearing is whether the inmate constitutes a threat to the community or not. In fulfilling this function, the Commission uses the Department of Corrections to prepare mental and medical examinations of the inmate and to produce reports. If the evidence indicates there is a mental health problem, the Commission considers it. In early 1984, the Commission published two policy letters dealing with the Commission operations; Numbers 4.17 and 4.20, both of which relate to medical or mental health status reports regarding inmates. The first, dealing with the request for these reports indicates that if the Commission requires an up- to-date report in these areas it may request it and in those cases where a hearing examiner for the Commission feels that the Commission would need it, it is the responsibility of the examiner to request it so that it is available for the Commission to consider at the time the inmate's PPRD is considered. Number 20 deals primarily with the language to be used by the Commission in citing a mental health status report as a source of new information used to alter the PPRD. Neither of these policy letters are necessarily pertinent unless it is considered that alcohol abuse, the language used in the rule in question here, is equated to alcohol dependency and alcohol dependency is considered either a mental health or medical condition. It cannot be found here that alcohol abuse, which may be a single incident of improper consumption of alcohol, is tantamount to or equates to alcoholism or alcohol dependency which may be a mental or physical condition. The term, "aggravation", is defined in Rule 23-21.02(1) as: . . . to exceed the matrix times ranges upper month limit. Alcohol abuse is not defined in the rule or anywhere else for specific use by the Commission. It is basically left up to each Commissioner to apply his interpretation of the term to the facts before him or her and most Commissioners have a common understanding of what the term means. The Commission considers there is a medical difference between alcohol abuse and alcohol dependence for setting PPRDs. The determination of whether to use a history of alcohol abuse may be based on whether the abuse played a part in the current offense or not. If so, the Commission generally will utilize the incident in its deliberations. If not, then it may not, but the issue of whether to use it as either aggravation or mitigation is discretionary with the Commission. Once it is determined to use alcohol abuse as aggravation in establishing a PPRD, then the amount of aggravation and time to be added is also based on the individual judgment of each Commissioner based on his or her evaluation of the degree of risk involved to the general public by the inmate. In arriving at this additional time, the Commission has a range within which it may assess a period of months, but there is no formula. In substance, the Commission is making an assessment of the risk - not a medical diagnosis and the issue is whether, because of that demonstrated alcohol abuse, the inmate constitutes a greater risk to the public if paroled. If so, then additional months are added on. If not, they are not. In that connection, expert evidence tends to indicate that abusers of either alcohol or drugs have a lesser chance of success than those who do not abuse. Alcohol addiction does generally lead to poor behavior and it is often a condition of parole that the inmate not drink to excess. Consequently, if a demonstrated alcohol abuser does drink to excess, the likelihood of his behavior becoming inappropriate again is high, but in addition, he will most likely be in violation of the conditions of his probation. It is again a question of risk assessment by professional judgment on an individual basis. Some experts define alcohol abuse as "a voluntary excess or inappropriate use of alcohol", whereas alcoholism is "involuntary." An abuser is not necessarily an alcoholic and trained medical expertise differentiates between alcoholism and alcohol abuse. Because of the fact that alcohol abuse is voluntary, some experts believe there is no reason to extend a prison term on the basis of alcohol abuse if the extension does not result in treatment for the behavior. Petitioner introduces the Commission's action with regard to inmate Nicky Berkart, wherein the Commission declined to utilize that inmate's alcohol abuse to aggravate his PPRD as evidence of the inconsistency of treatment of this factor. Mr. Burkart's situation is not comparable, however, to the issue here. None of the documentation considered by the Commission here was prepared by a doctor or medical professional with the exception of the psychologist's interview, but there is no indication that it need be. If the Commission had decided that additional medical or professional evaluation was necessary and pertinent, it could have requested it. What must be recognized is that an inmate has no right to parole. The sentence imposed by the court generates an expiration of sentence date (EOS) at which time the inmate will be released unless he or she has committed additional offenses. Parole, which is a release prior to expiration of sentence, is a privilege and if no parole is granted, the inmate will still get out at the EOS less gain time. Consequently, since nothing extends the sentence, denial of parole does not increase the penalty. The Commission may and does make abstinence from alcohol, or the use of antabuse, a condition of parole. Neither, however, is a guarantee that the individual will refrain from using alcohol. The evidence presented by Respondent indicates that it is not at all unusual for a parolee to commit offenses while under the influence of alcohol. Forty to fifty percent of all revocations of parole result from some sort of substance abuse. Many of those parolees have a history of alcohol abuse. Therefore, a history of alcohol abuse would appear to be a negative indicant of parole success. The aggravating factor in this situation is not that the inmate has the medical problem of alcoholism, but that the history of alcohol abuse shows that the inmate is not a good parole risk. It is generally a safe statement that people in prison who abuse alcohol are not a risk to society. Those who are released form prison with a demonstrated propensity to abuse alcohol are. In making this evaluation, the Commission is not, as was indicated previously, bound by any strict formula. Whatever qualification is applied, however, it must be applied on an individual basis and not across the board. Each Commissioner tailors his recommendation on what he knows about the individual before him. Based on the information provided, plus whatever information is requested as appropriate, an individual conclusion is drawn by each member of the Commission. These then are evaluated and a Commission vote is taken which results in the establishment of the PPRD.
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Respondent, Markeith Daniels (Respondent or Daniels), is a correctional officer certified by the Criminal Justice Standards and Training Commission, having been issued certificate number 254286. At the time of the events giving rise to these proceedings, Respondent was employed by the Florida Department of Corrections as a correctional officer assigned to the Dade Correctional Institution. On or about November 2, 2007, then-Deputy (now Lieutenant) Thomas Webb stopped Respondent in Apalachicola for an improper start of the vehicle he was driving. After approaching Respondent's car, Lt. Webb could smell alcohol on his breath. Lt. Webb asked if Respondent had been drinking, and Respondent indicated he had had a few beers. Lt. Webb asked Respondent to step out of the car and perform selected field sobriety tests. Lt. Webb testified that, based upon his training and experience, Respondent was under the influence of alcohol. He failed the field sobriety tests because he did not wait for complete directions to be given before starting the tests, and did not follow directions once given. For example, on the "one- leg stand" test, he did not count out loud as instructed, began counting at 4 and at the end of what was to be 30 seconds, Respondent had only counted to 22. Daniels' vehicle was searched. Lt. Webb found two bottles of Verdi Spumante, an alcoholic beverage, in the car. One bottle was unopened while the other was open and empty. Lt. Webb also found two cans of cold, Natural Lite beer in the back seat. Respondent claimed that the beer had been taken from a refrigerator at approximately 9:30 p.m., and that he had given several beers from the twelve-pack to a friend. Daniels was placed under arrest and transported to the Franklin County Jail, where his breath was tested for alcohol content. Protocols for breath alcohol testing require two samples to be given and tested. The first breath sample given by Respondent registered a reading of .121 at 4:28 a.m. The machine provides a two-minute break between breath sample attempts, and this two-minute window is recorded on the breath alcohol test affidavit as "air blanks," at 4:29 and 4:30. From the air blank recorded at 4:30, Respondent had three minutes to provide an additional sample. After three minutes, no sample had been provided, and Lt. Webb pressed the "refusal" button. Respondent would have been able to see the results from the first breath sample before being asked to give the second one. The criminal charges against Daniels were dismissed for reasons that are not clearly identified in this record.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Markeith Daniels has violated Section 943.13(7), Florida Statutes, and that Respondent's license be placed on probation for a period of one year, with terms to be determined by the Commission. DONE AND ENTERED this 21st day of August, 2009, 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 21st day of August, 2009. COPIES FURNISHED: Sharon S. Traxler, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Markeith L. Daniels Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether the nursing license of Alice M. Thomas Lofton should be disciplined for violations of Section 464.018(1)(f) and (h), F.S., by reporting to duty under the influence of alcohol.
Findings Of Fact Alice M. Thomas Lofton is now, and was at all times relevant in this proceeding, licensed as a registered nurse in Florida under license number 59769-2. In September 1985, Ms. Lofton was employed as a staff nurse at Tampa General Hospital. On September 15, 1985, she reported for duty smelling of alcohol and unsteady on her feet. Her speech was slow, deliberate and slurred and she was observed to have difficulty in taking a patient's blood pressure. She appeared to be intoxicated. When confronted by her supervisor, Ms. Lofton voluntarily submitted to a blood and urine test. The blood-alcohol test was returned with the result of .14 percent (.141 gm/dl). Ms. Lofton was sent home. She was subsequently given an opportunity to keep her job if she would participate in and follow the recommendations of the employee assistance program at Tampa General Hospital. She agreed to participate but did not comply with the counselor's recommendations, so she was terminated. It is both unprofessional and unsafe for a nurse to practice while under the influence of alcohol. Alice Lofton was a longtime employee of Tampa General Hospital. She had been an assistant head nurse for four and a half years. She admitted that at one time she thought she had a drinking problem and was once admitted to the emergency room under the influence of alcohol. No evidence was presented of other disciplinary actions regarding Ms. Lofton's license or regarding her employment as a registered nurse. No evidence was presented that a patient was harmed or that Ms. Lofton, except for her intoxicated appearance at work, ever failed to conform to minimal standards of acceptable prevailing nursing practice. Ms. Lofton claimed that the incident was the result of a conspiracy against her because she had asked for a transfer when her supervisors really needed her and wanted her to stay. The claim was inherently contradictory and was unsubstantiated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a final order be entered finding Alice M. Thomas Lofton guilty of a violation of Subsections 464.018(1)(f) and (h), F.S., and suspending her license for a period of 30 days and thereafter until she can demonstrate her ability to practice nursing safely. The demonstration should include a physical or psychological examination to determine whether she has an alcoholism problem requiring treatment, and, if so, continued probation is recommended to insure that such treatment is obtained. DONE and RECOMMENDED this 17th day of December 1986, in Tallahassee, Florida. MARY CLARK 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 17th day of December 1986. COPIES FURNISHED: William M. Furlow, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Alice T. Lofton 2703 Spruce Street Tampa, Florida 38687 Judie Ritter Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Bell holds license no. ME 0008297 issued by the State of Florida. His license was active from January 7, 1959, until December 31, 1991, at which time Bell's license became inactive because of his failure to pay the renewal fee. Bell is a board certified child and adult psychiatrist. In addition to his practice of psychiatry, Bell practiced general medicine for a year in 1979, worked as a contract physician in several emergency room in Georgia during 1986 and 1987, and worked as a parts warehouseman for an automobile dealership between February and September, 1989. Bell has a long history of alcohol related problems, beginning in August, 1982, when Bell was charged in South Carolina with driving under the influence of alcohol and was later convicted of reckless driving, which Bell acknowledges to have been alcohol related. In 1987, Bell called Roger A. Goetz, M.D., Director of the Florida Physicians Recovery Network (PRN), because he could not find employment in Georgia. He told Goetz that he was an alcoholic and agreed to enter the South Miami Hospital's addiction treatment program. This was not the first alcohol treatment program from which Bell had received treatment. Lynn A. Hankes, M.D., evaluated and observed Bell during his treatment at South Miami Hospital. Dr. Hankes also saw Bell in August, 1988, for a reevaluation. When Bell entered South Miami Hospital, he gave an extensive history of alcohol abuse and he acknowledged that he was an alcoholic. Alcoholism is a primary disease characterized by continuous or periodic impaired control, drinking to excess, preoccupation with the drug of alcohol, the use of alcohol despite adverse consequences, and distortions in thinking, most notably, denial. The disease of alcoholism is progressive, causing multi- system impairment. The alcoholic is impaired and cannot predict or control when his drinking is going to be out of control. Denial is an integral part of the illness and a major obstacle to recovery. According to Dr. Hankes, at the time of his evaluations of Bell, Bell suffered from the disease of alcoholism. Despite the treatment and a period of abstinence after his release, Bell's attitude, awareness, and belief system, as manifested by his denial and lack of insight, indicated to Dr. Hankes that Bell would be unable to change his behavior, vis-a-vis alcohol. In his testimony, Dr. Hankes expressed an opinion that Bell is unable to practice with reasonable skill and safety due to his alcoholism and use of alcohol. However, Dr. Hankes' opinion was based only on his personal knowledge from 1988 and on his review of the reports of the other experts and the interviews with Bell. On August 23, 1988, Bell entered into a five-year contract with PRN in which he agreed to abstain from use of alcohol, to have Dr. Hankes as his monitoring physician, to attend AA three times per week, to attend aftercare, to notify PRN in case of a relapse, to contact PRN two times per month, to withdraw from practice on evaluation at the request of PRN, and to be reported to DPR by PRN if he failed to comply with the contract. Bell claims to have unilaterally "cancelled" his contract about two weeks after signing it, but he failed to advise PRN or anyone else about this cancellation. He cancelled the contract because Dr. Goetz did not find him a job which Bell believed Dr. Goetz had agreed to do if he went to treatment and signed a contract. PRN and Bell corresponded in 1989 and 1991 regarding the contract and Bell's alcohol usage. In August, 1991, Bell advised Dr. Goetz and PRN that he had no problem with alcohol. In May, 1991, Bell was arrested after an alcohol-related incident. The events leading up to this arrest involved a drinking binge Bell had with a lady friend who lived in a trailer next to him. Bell believed that the friend had stolen his carton of cigarettes and bottle of vodka while Bell was "asleep." He went to retrieve these items and entered the friend's trailer through the floor air duct. An altercation ensued involving a butcher knife. On August 22, 1991, Bell pled no contest to the charge of trespass in an occupied structure. At the time of the arrest, Bell's trailer was unkempt and strewn with empty liquor bottles. In December, 1991, at the request of DPR, Bell was examined by two physicians, John E. Perchalski, a family practitioner, and Ernest C. Miller, a psychiatrist and expert in addiction medicine. Bell reported to Dr. Perchalski and acknowledged at hearing that his average daily alcohol intake was 14.5 ounces and that his alcohol intake had remained at that level for many years. Dr. Perchalski assessed this information and determined that Bell had a history of chronic excessive alcohol intake. Additionally, Bell had a high corpuscular volume which can be indicative of excessive alcohol intake. According to Dr. Perchalski, while Bell has no physical disability that would prevent him from practicing medicine, his long history of maladaptive behavior and excessive, regular alcohol intake would make it very difficult for Bell to be able to perform in a completely rational and safe way in his care for his patients. Bell told Dr. Miller that he consumed an average of 14.5 ounces of alcohol per day and that he suffered from occasional blackouts and hangovers. Bell's further discussions with Dr. Miller supported Dr. Miller's opinion that Bell has no insight into his problem with dealing with, relating to, and controlling the use of alcohol and that treatment programs have thus far been unsuccessful. Bell's refusal to admit that he is an alcoholic is consistent with the level of Bell's denial regarding his problems with alcohol. The history given by Bell, the physical examination results, and the evaluation and assessment of Dr. Miller support Dr. Miller's diagnosis of chronic alcoholism, alcohol abuse, alcohol dependency, and gamma alcoholism. Dr. Miller's opinion is that in light of the progressive dysfunctional aspects of the disease, Bell will become incapable of sustaining an effective clinical role. As Bell drinks, which is inevitable without treatment, he will not function effectively and his functioning will become less effective as the disease asserts itself on the various aspects of Bell's being. While Dr. Miller acknowledges that Bell may be able to practice currently, the probability is that he will be or will become unable to practice safely until his disease of alcoholism and its disease process are successfully treated. Bell is not currently practicing so no immediate evidence of impaired practice exists. Additionally, Miller indicated that the ingestion of 14.5 ounces of alcohol would take 20 hours to dissipate from Bell's system and any work with patients before the alcohol dissipated would be affected. Bell maintains that he has no problem with alcohol and that at no time has there been any allegation that he treated any patient while under the influence of alcohol.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein: Suspend the medical license of Robert E. Bell, Jr., M.D., for a period of one year or until he appears before the Board of Medicine and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety. If or when the terms of the suspension have been satisfied, place Dr. Bell on probation for five (5) years with terms and conditions to be set by the Board to insure his continued ability to practice with reasonable skill and safety. At a minimum, the demonstration of skill and safety should be supported by satisfactory mental and physical examinations by Board approved experts and by evidence of successful completion of an acceptable alcohol rehabilitation program. DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2204 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(3); 7(4); 8(12); 9(13); 10(16); 12(6); 13(5); 14(6 & 7); 15(7); 18(9 & 10); 20(15); 21(16); 22(18); 23(19); 24(19); 25(20); 26(21); and 27(23). Proposed findings of fact 2, 3, and 17 are unnecessary. Proposed findings of fact 6, 11, and 16 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 19 is unsupported by the credible, competent and substantial evidence in that Goetz's opinions were based on the evaluations and opinions of other experts and have insufficient support to stand alone. Proposed finding of fact 28 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert E. Bell, Jr., M.D. Proposed findings of fact 1a, 1b, 1d, 1e, 1f, 1g, 2a, and 2b are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1c, 1h, and 1i are irrelevant. Proposed finding of fact 2c is unnecessary. COPIES FURNISHED: Larry G. McPherson, Jr. Barbara W. Makant Attorneys at Law Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert E. Bell, Jr., M.D. Route 3, Box 503 Starke, FL 32091 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
