The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000.
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Valderrama was certified as a law enforcement officer in the State of Florida by the Commission on September 29, 2004, and was issued Law Enforcement Certificate No. 243605. From September 27, 2004, to November 9, 2007, Ms. Valderrama was employed by the Osceola County Sheriff's Office. On or about October 17, 2007, at approximately 1:00 p.m., Ms. Valderrama reported to the Osceola County Sheriff's Office Administration Building for random drug testing pursuant to the terms of her employment and provided a urine sample under controlled conditions. A lab technician was the only other person in the restroom with Ms. Valderrama during the collection process. Ms. Valderrama provided the specimen by urinating in a sterile, previously unused specimen cup, which she subsequently provided to a lab technician who immediately sealed the sample. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered, or adulterated since the initial collection of the urine sample and had remained sealed and maintained in the chain of custody until unsealed by a qualified laboratory personnel at Total Compliance Network, a licensed drug testing laboratory contracted by Florida Hospital Centra Care to conduct random employee drug screens for the Osceola County Sheriff's Office. The laboratory analysis of Ms. Valderrama's urine specimen was found by qualified Quest Diagnostic's laboratory personnel and a Total Compliance Network medical review officer to be positive for Cocaine metabolites in a concentration of 2046 nanograms per milliliter. The minimum level of detection for Cocaine is 150 nanograms per milliliter. On October 27, 2007, Ms. Valderrama discussed her test results with Dr. Seth Portnoy, the licensed medical review officer for Total Compliance Network. Ms. Valderrama could not provide Dr. Portnoy with any medical reason for the positive test result and did not challenge the positive test results. The procedures and methods employed in the handling and analysis of Ms. Valderrama's urine specimen provided reliable safeguards against contamination, a reliable chain-of-custody, and produced, through gas chromatography/mass spectrometry, a reliable, scientifically-accepted measure of the concentration of Cocaine metabolite in the body. The laboratory standards and practices observed in conjunction with the collection, preservation, shipment, handling and analysis of Ms. Valderrama's urine specimen, for the purpose of testing for drugs, were in conformance with the applicable provisions of Florida Administrative Code Chapter 59A-24 and consistent with the requirements for reliability and integrity of the testing process pursuant to Florida Administrative Code Rule 11B-27.00225. Cocaine is rapidly metabolized by the body and can be usually detected for two to three days after ingestion. Because the minimum detection level for Cocaine is 150 nanograms per milliliter and Ms. Valderrama's test results showed a level of 2046 nanograms per milliliter, it was Dr. Portnoy's expert opinion that the tests results were indicative of ingestion of Cocaine. Dr. Portnoy's opinion is credited. Ms. Valderrama had drunk some herbal tea prior to giving her urine sample. She feels that the ingestion of the herbal tea could have resulted in the positive test for Cocaine. There was no expert testimony to establish that the ingestion of the herbal tea would result in the positive drug test. Additionally, based on Dr. Portnoy's credible expert opinion, the metabolite detected in Ms. Valderama's urine could only result from Cocaine. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Vivian Valderrama violated Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking her certification. DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 9th day of December, 2008.
The Issue The issue is whether Respondent, a certified law enforcement officer, tested positive for marijuana metabolites, indicating the unlawful use of a controlled substance, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent’s certificate?
Findings Of Fact Respondent is a certified law enforcement officer, having been issued certificate number 240412 on May 17, 2004. At all times material hereto, Respondent was employed by the Town of Palm Beach Police Department (the Town). On June 24, 2012, at approximately 1:20 a.m., Respondent responded to an alarm call. As he was leaving the scene, Respondent, who was driving a city police vehicle, pulled into a private driveway and failed to see a low hanging metal chain hanging across the driveway attached to two concrete pillars. The chain struck the front end of the vehicle, and, as Respondent continued forward, the chain rode up the front hood and struck the windshield. As a result, the vehicle sustained multiple scratches across the hood, a cracked windshield, a broken side view mirror, and a cracked front lens plate. Watch commander, Captain Curtis Krauel (Krauel), was on the scene at the time the accident occurred. Krauel estimated the damage to the vehicle to be approximately $500.00. However, it was very dark and this was a rough estimate only. In relevant part, the Town’s comprehensive alcohol and drug abuse policy, procedure number 1-06-5(d), provides that the Town may require an employee to submit to tests for the presence of alcohol or illegal drugs: Whenever an employee is involved in an accident while operating a town vehicle or while working for the town, which results in one or more of the following: A citation issued to the employee; Total property damage in excess of $1,000; Filing of a notice of injury under Workers Compensation. Because Krauel was not certain of the amount of damage to the vehicle, he instructed Respondent to report back to the station for drug and alcohol testing. Krauel had no concerns prior to the accident regarding any illicit drug use by Respondent. However, he knew that this accident would require a property damage report and that the Town’s policies mandate testing. This was Respondent’s first accident in seven years, and he was upset. Krauel told Respondent he believed the damage was minor. Respondent disputed that an alcohol or drug test was necessary. Respondent had been studying for the sergeant’s exam and was aware that the policy had a minimum $1,000.00 damage threshold. Krauel contacted his sergeant and both believed the threshold necessary for testing was $500.00 worth of damage. However, as Krauel explained at the final hearing, he is not a property appraiser, and he needed to make a ballpark estimate in the dark. Krauel knew that he could not really tell the damage until the morning; therefore, the most prudent option was for him to send Respondent for drug and alcohol testing. Property Damage Appraisers Fort Pierce examined the vehicle and provided a repair estimate of $1,844.24. Respondent, in compliance with the order issued by his supervisor, reported back to the station on June 24, 2012, at approximately 2:11 a.m., and gave a specimen of his urine, by urinating in a sterile, previously unused specimen cup provided to him by Nancy O’Dette (O’Dette)(formally Nancy Richards) of NMS Management.1/ After Respondent urinated into the specimen cup provided to him, he handed it to O’Dette who put Respondent’s specimen into a tube, immediately sealed the tube, had Respondent initial and date the seal, and then completed the chain of custody form. O’Dette labeled Respondent’s specimen with his Social Security number and also assigned it a unique specimen number, 9263743, making it uniquely identifiable as Respondent’s June 24, 2012, urine sample. The vial containing Respondent’s urine specimen was sealed with a label that would not allow the vial to be opened again without breaking the seal created by the label. O’Dette packaged the vial containing Respondent’s urine specimen in a bag which she also sealed and labeled as Respondent’s June 24, 2012, urine sample. She then placed the bag in a pickup box at NMS Management to await pickup by a courier for delivery to laboratories of Quest Diagnostics (Quest). Specimen number 9263743 was received at the laboratories of Quest in Tucker, Georgia, on June 26, 2012, where it was assigned the unique laboratory accession number 328410K for purposes of drug testing analysis by Quest. Quest maintained chain of custody procedures in handling Respondent’s specimen until it was unsealed by qualified laboratory personnel at the Quest laboratory and subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. Quest conducts initial testing of urine samples by immunoassay, and confirmation testing by "GC-MS" or gas chromatography-mass spectrometry. It is the regular practice of Quest to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and is broken down by the liver, producing the marijuana metabolite, which is excreted through the kidneys. Quest conducted immunoassay and confirmation testing on specimen number 9263743. Quest’s confirmatory laboratory analysis of Respondent’s urine specimen was found by qualified Quest personnel to be positive for the marijuana metabolite in a concentration of over 1500 ng/mL. Any quantitative level of the marijuana metabolite detected above 15 ng/mL using the "GC-MS" methodology is considered a positive test result. Dr. Benjamin Droblas, a medical doctor and the medical review officer for Healthcare Center of Miami, reviewed the report from Quest reflecting the results of the analysis of Respondent’s urine specimen. On June 29, 2012, Dr. Droblas discussed the test result by telephone with Respondent. Dr. Droblas’ purpose for contacting Respondent was to ascertain if he could provide any legitimate explanation for the positive test result. Respondent did not provide Dr. Droblas with any explanation for the positive test result and denied using marijuana. The test results from the analysis of Respondent’s urine specimen are consistent with Respondent’s illicit cannabis use prior to providing his urine specimen. Respondent did not request additional confirmatory testing on a split sample from Quest.2/ No evidence was introduced regarding any prior discipline against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failure to maintain good moral character, as required by section 943.13(7), Florida Statutes. It is further recommended that Respondent’s certification as a corrections officer be suspended for a period of six months, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 20th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of June, 2014.
The Issue Whether Respondent discriminated against Petitioner in its employment decisions in violation of Section 760.10, Florida Statutes (2001).
Findings Of Fact Petitioner, Oscar Jones (Petitioner), is a black male. He began working for Respondent in July 1997, as a longshoreman working on "chicken boats." In that position, Petitioner loaded boxes of frozen chicken into the holds of refrigerated ships. Respondent, Coastal Maritime Services, LLC (Respondent), is engaged in the business of stevedoring and seaport terminal operations, including loading and unloading ships, and receiving cargo. On May 28, 1998, Respondent injured himself when a very heavy box of frozen chicken fell on his ankle. Other than first aid at the worksite, Petitioner declined further medical treatment that day. He was given a medical form authorizing treatment at the medical clinic which provided medical services to injured employees who might be covered under Respondent's workers' compensation insurance. The next day, on May 29, 1998, Petitioner sought medical treatment for his injury at the medical facility which handled Respondent's workers' compensation injuries. As part of that treatment, Petitioner was asked to take a drug test and Petitioner consented. Although no formal written drug test policy was in effect by Respondent at the time of Petitioner's injury, the general policy and practice was that a work-related injury would subject an employee to a voluntary drug test. Petitioner's drug test came back positive for marijuana. As a result of the positive drug test result, Respondent's insurance carrier controverted Petitioner's workers' compensation claim. There was no evidence that Respondent's management had any responsibility or involvement in the carrier's decision to controvert Petitioner's entitlement to workers' compensation benefits. During the 12-month time period of January 1998 through December 1998, Petitioner was not the only employee of Respondent required to take a drug test after a work place injury. In fact, in June 1998 (the same time period as Petitioner's test) seven white employees were required to take a drug test and three black employees were required to take a drug test. For the entire 1998 calendar year, 51 total drug tests were administered, with 31 of those tests administered to non- black employees (for example, white or Hispanic) and only 21 of those tests administered to black employees. Similarly, for the entire 1998 calendar year, a total of 18 employees were not administered drug tests, either because medical attention was refused or because of the severity of the injury. Of those 18 employees, 11 were non-black employees and seven were black employees. Employees who were not required to take a drug test either were those who refused medical attention or who were severely injured and had to seek treatment from hospital emergency rooms where drug tests were not given. Clearly, race played no factor in who was required to take a drug test or who received a drug test. Petitioner did cite the names of two white employees, Jay Chavers and Andy Wiley, who allegedly were treated more favorably than Petitioner, in that those two employees did not take a drug test. However, those two employees were not "similarly situated" to Petitioner. First, the injuries of both Mr. Chavers and Mr. Wiley were much more serious in nature than the contusion (bruise) that Petitioner had suffered and both were taken to emergency rooms for their injuries where drug tests were not routinely administered. Specifically, Mr. Chavers had fallen from a high distance and suffered numerous broken bones, thus, rendering him incapable of giving consent to a drug test at the hospital. As to Mr. Wiley, his injuries were not subject to workers' compensation coverage, unlike Petitioner's. Thus, given the nature of the injuries of Mr. Chavers and Mr. Wiley, those two individuals were not sufficiently "similarly situated" to Petitioner to enable him to establish a prima facie case of racial discrimination. Petitioner's positive drug test result had no other impact on his employment with Respondent, apart from the controversion of his workers' compensation benefits. Indeed, Respondent attempted to get Petitioner to return to work. Shortly thereafter, in early June 1998, Petitioner contacted the chief financial officer of Respondent, Kathleen Wiley, who in 1998 was Respondent's office manager. Petitioner expressed concern to Ms. Wiley about his workers' compensation benefits and his employment status with Respondent. Ms. Wiley informed Petitioner that he was still considered to be employed with Respondent and that he needed to contact Ben Brown for a light duty assignment. Petitioner was expressly informed that light duty work was available that would meet his medical restrictions imposed after his injury. Petitioner never followed-up with Mr. Brown about light duty work. Almost immediately thereafter in June 1998, Respondent hired Bud Underwood as its new safety manager. Mr. Underwood's responsibilities were to oversee workers' compensation cases and follow up on accidents and injured employees. Ms. Wiley informed Mr. Underwood to follow up on the situation of Petitioner to get him to return for a light duty assignment. In late June or early July 1998, Mr. Underwood contacted Petitioner as directed and offered him light duty work within his medical restrictions. Petitioner informed Mr. Underwood in very obscene terms that he was not going to accept any light duty assignments. Petitioner never appeared for any light duty assignments after that conversation. Based upon Petitioner's response to that telephonic offer of light duty employment, Respondent sent Petitioner a letter around July 9, 1998, informing him that based upon his refusal of light duty work, he had been deemed to have abandoned his employment, and thus was no longer employed by Respondent due to self-termination. Thereafter, in September 1998, Petitioner contacted Respondent by telephone seeking employment. However, by that time, opportunities for longshoremen, such as Mr. Jones were extremely limited, as the "chicken boat" operation had all but shut down for financial reasons, and no positions were available at the time. Thus, Respondent sent Petitioner a letter dated September 2, 1998, informing him that no positions were available, but encouraging him to reapply. Despite the invitation to Petitioner that he should reapply, Petitioner never submitted any subsequent inquiry for employment. Respondent's "chicken boat" operation had shut down completely by February 1999. Petitioner later applied for unemployment compensation benefits, but those benefits were denied on the ground that Petitioner had abandoned his employment by refusing the light duty work that was offered to him. In fact, in an evidentiary hearing held in his unemployment compensation matter, the Unemployment Appeals Referee found as a fact that Petitioner admitted that he had refused the light duty work offered to him. Petitioner's appeal of that adverse decision was, likewise, denied by the Unemployment Appeals Commission. Petitioner's race played no role in Respondent's determination that Petitioner had abandoned his employment or in Respondent's determination that no position existed for Petitioner in September 1998. Similarly, race played no role in the insurance carrier's decisions regarding Petitioner's workers' compensation benefits. In fact, Petitioner voluntarily settled his workers' compensation claim disputes in a settlement agreement signed by him and his attorney dated March 22, 1999. Petitioner had a family to support and needed the money. Pursuant to that settlement agreement, Petitioner agreed to accept $4,500 in full, final and complete settlement, release and discharge of any and all claims against the employer arising out of Petitioner's alleged accident, injury, and disability in issue, including, but not limited to claims for temporary total, temporary partial, permanent total, and/or permanent partial disability compensation, and past and future medical benefits. Petitioner verified that the settlement was adequate and was not entered into under duress. Rather, Petitioner of his own accord thought that the settlement was in his best interest. The Department of Labor approved the settlement. Petitioner has made no credible showing that there was any relationship between his race and the adverse employment actions of which he has complained.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of December, 2002, 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 16th day of December, 2002. COPIES FURNISHED: Peter Reed Corbin, Esquire Richard L. Ruth, Jr., Esquire Ford & Harrison LLP 121 West Forsyth Street Suite 1000 Post Office Box 41566 Jacksonville, Florida 32203 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Oscar Jones 1817 East 27th Street Jacksonville, Florida 32206 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation. Respondent was aware that DDMC engaged in advertisements to solicit patients. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available. In the event the Doppler showed no problem, Respondent would not recommend additional testing. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO CASE NO. 90-6331 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted. Paragraphs 8 and 9 are accepted. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted. Paragraph 11 is rejected as contrary to the weight of the evidence. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence. Paragraph 18 is accepted. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 and 23 are accepted. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence. Paragraph 31 is accepted. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 5 are accepted. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges. Paragraphs 8 through 10 are accepted. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted. Paragraphs 12 through 15 are accepted. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence. COPIES TO: Richard A. Grumberg Sr. Medical Atty. DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Grover C. Freeman 4600 West Cypress, Ste. 500 Tampa, FL 33607 Dorothy Faircloth Executive Director DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. 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 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
