The Issue Whether Sapa Precision Tubing Rockledge, LLC (Respondent), discriminated against Christopher Brian Edwards (Petitioner) on the basis of age.
Findings Of Fact Petitioner is over 40 years of age, and was employed by Respondent from 2009 until May 21, 2013. Prior to his termination, Petitioner received favorable work evaluations and demonstrated good work attendance. Respondent is a manufacturing company that makes aluminum tubing for commercial purposes. Safety in the work environment is critical to Respondent’s success. Part of Respondent’s safety regimen includes maintaining a drug-free workplace. To that end, Respondent retains an outside company, Edge Information Management, Inc. (Edge), to conduct random drug tests of Respondent’s employees. Respondent’s drug-free policy is set forth in its employee handbook that is provided to all employees. Petitioner received a copy of the handbook and knew or should have known of the company’s drug-free policy upon his employment. In order to screen Respondent’s employees, Edge creates a random matrix that assigns all employees a number. The computer program used by Edge then generates a random sampling of employees for the given test date. In this case, approximately one month before the test date, Edge randomly selected employees who were to be tested on May 14, 2013. Petitioner was named among the randomly selected employees. Edge is accredited by the Drug and Alcohol Testing Industry Association and is fully authorized to conduct drug screenings. Edge employee, Leonard Clarke, was fully trained in the process of collecting samples to assure conformance with all applicable testing standards. Prior to the test date, Petitioner attended a meeting with other employees and voiced concerns to Respondent regarding working conditions by “bringing up stuff that they were not comfortable with.” Although not part of his original claim of discrimination, Petitioner now maintains that his termination was also in retaliation for his comments during that meeting. On May 14, 2013, based upon the employees randomly selected by Edge, Respondent notified supervisors to send the employees to a conference room for drug testing. Clarke prepared the paperwork and waited for the 27 employees to report for the screening. No one at Respondent selected the employees to be screened, conducted the collection of samples, or tested the samples taken. Clarke was solely responsible for the drug testing. All of the employees were required to review the testing form, sign, and date it before returning it to Clarke. Each was given a lollypop stick with a sponge attached to one end. By placing the sponge in the mouth and collecting saliva, the sample can then be tested to issue a preliminary result for drugs. Clarke had a difficult time collecting a saliva sample from Petitioner. Eventually, on the second or third attempt Petitioner produced enough saliva to place the sponge in the vial to allow the test strip to render a result. The test strips are designed to react to substances such as marijuana, cocaine, or amphetamines. In Petitioner’s case, the test strip showed positive for drug metabolites and/or alcohol. After testing positive on the saliva test (the only employee who did), Clarke asked Petitioner to give a urine sample so that a complete drug analysis could be performed by the Edge lab. Petitioner consented to all testing procedures and the collection of samples on May 14, 2013. For the purpose of the urine sample, Petitioner was given a cup and asked to go into the adjacent bathroom to produce the sample. When Petitioner returned the cup to Clarke it was noted that the cold, clear liquid did not register a temperature. Based upon his training, Clarke suspected that Petitioner had not urinated into the cup and discarded the sample. Next, Clarke accompanied Petitioner while a second sample was collected for urinalysis. Clarke marked the sample, packaged it in accordance with all applicable standards, and sent it by FedEx to Edge’s lab. Petitioner’s testing went from “random” to “reasonable suspicion/cause” based upon his saliva test and behavior with Clarke. It appeared to Clarke that Petitioner attempted to evade the drug testing process. Based upon the preliminary test results, Petitioner was suspended from work. Petitioner knew he had tested positive for drugs and that his urine sample would be further evaluated. It is undisputed that Petitioner’s urine tested positive for cocaine. Prior to notifying Respondent of the test results, Edge notified Petitioner that the sample tested positive for cocaine and gave Petitioner an opportunity to contest or explain how the result might be erroneous. Petitioner did not contest the result and has not disputed the presence of drugs in his saliva and urine on May 14, 2013. On May 21, 2013, Edge sent Petitioner’s drug results to Respondent. At that time, Respondent decided to terminate Petitioner’s employment with the company, and Chapman notified Petitioner by telephone that he was terminated because he tested positive for cocaine. Respondent gave Petitioner an opportunity to contest the drug results, but he did not. At hearing, Petitioner did not contest the drug results. Of the persons tested with Petitioner, twenty were younger than he and six were older. Only Petitioner tested positive for drugs. In the last ten years, all employees at Respondent who have tested positive for drugs have been terminated. No one younger or older than Petitioner has been retained if they tested positive for drugs. Petitioner’s age did not impact Respondent’s decision to terminate his employment. None of Petitioner’s comments were considered in the termination of his employment. Petitioner did not raise retaliation with FCHR and has not established that Respondent retaliated against him because of comments he made during a company meeting. In short, Petitioner was terminated because he tested positive for cocaine. There was no competent, substantial evidence that persons younger than Petitioner were treated differently from Petitioner or were subject to dissimilar policies or practices. All of Respondent’s employees who tested positive for drugs have been terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015. COPIES FURNISHED: Christopher Brian Edwards 4605 Ocean Beach Boulevard Cocoa Beach, Florida 32931 Mary Susan Sacco, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether the Criminal Justice Standards and Training Commission (Petitioner) should take disciplinary action against the certificate of Bradley W. Carlton (Respondent) based upon his alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, including specifically the requirement that a law enforcement officer have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on April 7, 1988, and was issued certificate number 12-87-02-03. Respondent was employed as a law enforcement officer by the North Palm Beach Police Department in 1989, and was so employed at all times material hereto. Based upon information received by the North Palm Beach Police Department from two informants concerning the alleged use of controlled substances by the Respondent, on and off duty, a Departmental investigation was conducted on September 13, 1989. During that investigation, the Respondent gave a statement denying the use of any controlled substances or the possession of a "one-hitter" pipe as described by the informants. The Respondent also consented, orally and in writing, to a search of his person, automobile and residence, and he was entirely cooperative during these searches. No contraband was found on his person. During the search of Respondent's vehicle on September 13, 1989, by Captain George Warren and Lieutenant Wilbur Walker, a portion of a marijuana cigarette and a one-hitter pipe were discovered inside a red pouch that was obtained from a gear bag located in his vehicle's trunk. The ashtray in the Respondent's car also had an odor of marijuana. A search of Respondent's bedroom was also conducted on September 13, 1989, by Captain Warren and Lieutenant Walker. Although the Respondent had a roommate, his roommate occupied a separate bedroom. This search uncovered contraband in Respondent's bedroom which included a 35mm film canister containing marijuana seeds which was found in a box on Respondent's closet shelf, a portion of a marijuana cigarette in an ashtray on Respondent's desk, a plastic coaster containing marijuana seeds located on a bookshelf near his bed, and a portion of a marijuana cigarette on the Respondent's desk behind a clock radio. The items found on the Respondent's desk and bookshelf were in open view and were not hidden inside other containers. Captain Warren and Lieutenant Walker have the necessary training and experience to recognize and identify marijuana, marijuana cigarettes and the odor of marijuana. The one-hitter pipe found in Respondent's trunk matches the description of the pipe which one informant claims that the Respondent used in her presence. Pipes such as this are typically used to smoke marijuana. The Respondent admitted the marijuana seeds found in the 35mm canister, the bag containing the pipe and portion of a marijuana cigarette, and the ashtray containing the partial marijuana cigarette were all his. He stated that the ashtray had only gone unemptied for approximately one week. He also admitted that the pipe was probably his because at one time he had one just like it. However, Respondent urges that he had forgotten about these contraband items since he had not used them in a long time, and that at all times material hereto, he did not "knowingly" possess these items. Nevertheless, these items of contraband were Respondent's, and they were found in his vehicle and in his residence. Prior to his employment with the North Palm Beach Police Department, Respondent had used marijuana. He admitted to using marijuana as late as 1982 during the polygraph portion of his employment process. On or about September 19, 1989, Respondent took a drug test at the Toxi-Tech Laboratory in West Palm Beach, Florida. The results of that test were negative, meaning that there was no indication of any controlled substance which exceeded the testing threshold level. This test cannot exclude the possibility of marijuana use by the Respondent, but simply establishes that the testing threshold level for marijuana of 100 ng/ml was not exceeded in the Respondent's test sample. Officers Donald Zimmerman and William McArdle received written statements about the Respondent from the two informants, and were also involved with the internal investigation of Respondent which was conducted by the North Palm Beach Police Department. Respondent claims that there was a personal animosity between Officer Zimmerman and himself, and that this may have lead to these informants giving these statements to Officer Zimmerman since he and Officer McArdle knew both informants personally. Officer Zimmerman denies any animosity between himself and the Respondent. Even if it were shown that such animosity existed, which it was not, that fact would not discredit the results of the searches conducted by Captain Warren and Lieutenant Walker, especially in light of the Respondent's admitted prior use of marijuana and ownership of the items of contraband found in his vehicle and residence. The statements of these two informants clearly constitute hearsay, which alone is not sufficient to establish the above findings of fact. They are considered only to support and confirm other direct evidence in the record which consists, specifically, of testimony and documentary evidence concerning the searches conducted of Respondent's vehicle and residence, and Respondent's admissions.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. RECOMMENDED this 27th day of March, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5013 Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 11. Adotped in Finding of Fact 3. 6-8. Adopted in Finding of Fact 11. 9. Rejected as unnecessary. 10-12. Adopted in Findings of Fact 3 and 11, but otherwise Rejected as unnecessary. 13-15. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Rejected as unnecessary and immaterial. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. 22-25. Adopted in Finding of Fact 5. 26-27. Rejected as unnecessary and immaterial. 28. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary. 29-33. Adopted in Finding of Fact 8. Rulings on the Respondent's Propsoed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, but otherwise Rejected as immaterial. 3-4. Adopted in Finding of Fact 11, but otherwise Rejected as immaterial. 5-6. Adopted in Finding of Fact 3. 7. Adopted in Findings of Fact 4 and 8, but otherwise Rejected as not based on competent substantial evidence. 8-10. Adopted in Findings of Fact 5 and 8, but otherwise Rejected as not based on competent substantial evidence. 11. Rejected as unnecessary and immaterial. 12-13. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding of Fact 9, but otherwise Rejected as not based on competent substantial evidence and immaterial. Rejected as immmaterial and irrelevant. Adopted and Rejected, in part, in Finding of Fact 10. COPIES FURNISHED: Sharon D. Larson, Esquire P. O. Box 1489 Tallahassee, FL 32302 Stephen W. Foxwell, Esquire P. O. Box 11239 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P. O. Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(d); and, if so, the appropriate penalty.
Findings Of Fact Petitioner is an agency of the State of Florida responsible for the certification and the revocation of certification of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes. Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 332010 to Respondent on July 24, 2003. As part of her employment agreement with the Florida Department of Corrections (DC), Respondent agreed to submit to random drug testing. See also § 944.474, Fla. Stat. (providing DC with the authority to develop a program for random drug testing of all employees). On June 22, 2018, DC requested that Respondent submit to a random drug test and she provided a urine sample that same day. Prior to her submission of the urine sample, Respondent provided photo identification to the lab technician to verify her identity. Respondent did not notify DC of any reason why her urine sample might test positive for a controlled substance. After submitting her urine sample, Respondent signed a form that stated: I [the Respondent] certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner, each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct. Respondent does not dispute the testing procedures, chain of custody, qualifications, or accreditation of the laboratory and its employees that analyzed her urine specimen. Respondent also does not dispute that this was a “drug test” as defined under section 112.0455(5)(j), Florida Statutes. Section 112.0455 is known as “the Drug-Free Workplace Act,” and authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Instead, it relied on the testimony of Dr. Widerspan, the medical review officer who analyzed Respondent’s drug test, and Dr. Schwimmer, the director of medical review services at Doctor’s Review Services, which employs Dr. Widerspan, to establish those results. Dr. Schwimmer testified as to the testing and evaluation procedures utilized generally at Doctor’s Review Services. He noted that his office does not conduct the drug test, but rather, a separate laboratory conducts it. Medical review officers within his office review the results of positive tests. With respect to marijuana, Dr. Schwimmer testified that the laboratory conducts a two-stage testing process. First, the laboratory conducts an immunoassay, or screening test, that he described as a reactive test. If that first test reveals presence of delta-9 tetrahydrocannabinol/marijuana (delta-9 THC) for the marijuana metabolite at or above 15 ng/ml, the laboratory will then conduct a gas spectrometry test, which he described as more detailed and not reactive. If the gas spectrometry test confirms the concentration of delta-9 THC for the marijuana metabolite at or above 15 ng/ml, Dr. Schwimmer explained that the laboratory then refers the test to Doctor’s Review Services for review by a medical review officer. Dr. Schwimmer further testified that when a medical review officer receives the results of a test that reflects a concentration of marijuana in excess of 15 ng/ml, the medical review officer speaks with the subject of the test to determine if the subject has a valid medical explanation that the medical review officer can verify. According to Dr. Schwimmer, the only verifiable valid medical explanation for a positive marijuana test is if a subject presented a prescription for Dronabinol, also known as Marinol, and the subject ingested Dronabinol prior to the drug test. If a subject provides a verifiable, valid medical explanation for a positive marijuana test, a medical review officer may overturn the laboratory’s findings. Dr. Widerspan is a practicing physician and has been a certified medical review officer since 2015; she testified that she has evaluated over 50 urine specimens as a medical review officer. Dr. Widerspan was the medical review officer who reviewed the results of Respondent’s drug test. She testified that she saw the results of the marijuana metabolite concentration in Respondent’s drug test, which were transmitted electronically to her from the testing laboratory, and which she stated reflected a positive marijuana test. Again, Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Dr. Widerspan testified that she contacted Respondent to determine if a valid medical explanation existed to justify the positive result of the drug test, and after that conversation, determined that Respondent did not present a valid medical explanation. Respondent, an approximately 16-year veteran of DC, testified and presented credible evidence that she suffered from multiple issues related to her back, starting in 2017. As a result, Respondent stated that she took over-the-counter cannabidiol oil (CBD) for back pain around the time of her drug test. Respondent testified that she explored, and ultimately decided to ingest the over-the-counter CBD oil as an alternative to other prescribed pain medication, so that she would not be “woozy” or “goofy” at work, and because, as a correctional officer, she needed to be “aware and alert.” Petitioner and Respondent both provided evidence that Respondent purchased an over-the-counter CBD oil product from a local pharmacy near the time of the drug test. However, Respondent did not provide evidence that a medical professional prescribed the use of CBD oil or any marijuana-related products for her back. Respondent denied ingesting illegal marijuana during her employment with DC, but admitted ingesting over-the-counter CBD oil around the time of her drug test. Dr. Schwimmer testified that the medical review officers at Doctor’s Review Services will not consider a subject’s claim that he or she ingested CBD oil to overturn a drug test that is positive for marijuana because “it is not verifiable.” He further explained: If they are taking a product that is sold legally in the State of Florida, we don’t believe that normal usage would be a valid medical explanation because the levels required are well beyond what you would expect to see from that normal usage. Dr. Schwimmer further testified that “normal” CBD oil should have no more than 0.3% THC, which is very low, and thus should not trigger a positive marijuana test, even if the subject ingests it regularly. Dr. Widerspan similarly testified: Because the THC content within a CBD oil product is a trace amount, which is not - - would not be expected to come up as a positive test. It is not expected to develop a concentration strong enough to show up as a confirmed positive test. Respondent testified that she spoke with Dr. Widerspan after receiving a phone call where Dr. Widerspan indicated that her drug test was positive for marijuana, and Respondent told Dr. Widerspan that she ingested over-the-counter CBD oil. Respondent further provided copies of the bottle of the CBD product, as well as receipts of purchase, to Doctor’s Review Services. Dr. Widerspan stated that she advised Respondent that Respondent failed to provide her with a valid medical explanation that would permit her to overturn the result because over-the- counter CBD oil is not an acceptable prescribed medication, such as Dronabinol. It bears repeating that Petitioner did not introduce into evidence the actual result of Respondent’s June 22, 2018, drug test. Instead, Petitioner apparently relies solely on the testimony of Dr. Schwimmer and Dr. Widerspan to establish that Respondent’s June 22, 2018, drug test resulted in a positive test for marijuana, and in turn, that Respondent failed to maintain good moral character. The only exhibit that Petitioner introduced was a receipt from the local pharmacy where Respondent stated she purchased the over-the-counter CBD product. Respondent introduced into evidence, among other things, a series of letters from current and past co-employees of DC, that attest to her professionalism, strong work ethic, and leadership abilities at DC, as mitigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint against Terri D. Roberts. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 4th day of October, 2019. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Terri D. Roberts (Address of Record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed the violations charged in the Administrative Complaint, involving possessing and introducing onto the grounds of a state correctional institution, certain controlled substances and, if so, what if any penalty is warranted.
Findings Of Fact The Respondent, Erlene Stewart, has been employed as a correctional officer at Union Correctional Institution (UCI). She was so employed on February 1, 1999, and had been employed there for almost five years at that time. The Respondent was working on Saturday, January 30, 1999. On that day, officers at UCI examined employees coming to work by conducting an "Ion Scan" of employees to attempt to detect any drug or drug residues on or about their persons when they entered the institution to go on duty. The Respondent was subjected to such an Ion Scan and successfully passed it. Thus, she was aware that a drug detection effort was being conducted on Saturday, January 30, 1999, at UCI. February 1, 1999, was the Monday after that Saturday. The Respondent was working that day in tower number five of UCI. She had driven to work that day in the black Pontiac Grand Am in question, which is registered in her name. She was working on the 8:00 a.m. to 4:00 p.m., shift on that Monday. It was very unusual for a drug detection operation to be conducted on that Monday, immediately succeeding the Ion Scan drug detection operation which had been conducted on Saturday, two days before. Such a drug detection operation was conducted in the parking lot of UCI on Monday, February 1, 1999, however, using a drug detection dog. It was very unusual for a drug detection dog to be used so soon after an Ion Scan drug detection operation and also unusual for the dog to be used at 12:30 in the afternoon. The Respondent was surprised to find that a drug detection dog was being used in the parking lot of UCI on February 1, 1999. When the Respondent came to work on that day she locked her car leaving the windows slightly cracked and went inside to go on duty. Later that day, at approximately 12:30 p.m., a drug detection dog, handled by Sergeant Box of UCI, was examining vehicles in the parking lot and "alerted" to the presence or odor of narcotics inside or on the Respondent's vehicle. The dog had been trained and certified to be capable of passively alerting to the odors of four narcotics: marijuana, powdered cocaine, crack cocaine and heroin. After the dog alerted to the presence of contraband drugs in or on the Respondent's vehicle, the Respondent, who was then working in tower number five, was relieved of duty and summoned to her vehicle in the parking lot on the grounds of UCI. When she arrived in the vicinity of her vehicle, she was informed that a drug detection dog had alerted to her vehicle. She provided a written consent, to the officers present, to a search of her vehicle. The Respondent had to unlock her vehicle in order for the drug detection officers to begin their search of its interior. Upon gaining access to the interior of the Respondent's vehicle, Sergeant Mobley of Hamilton Correctional Institution, discovered an aluminum foil package containing a white powder suspected to be cocaine, on the passenger's side of her vehicle. Sergeant Mobley turned that package over to the custody of Inspector Bailey. Sergeant Dugger found what appeared to be marijuana on the driver's side of the Respondent's vehicle. Prior to his entry into the vehicle, Sergeant Dugger and Inspector Bailey had observed through the window what appeared to be marijuana and marijuana seeds on and about the driver's seat. The Respondent is familiar with the appearance of marijuana and cocaine. Moreover, she is aware that cocaine is commonly wrapped in aluminum foil. Her former husband had been known to use cocaine according to the Respondent's testimony. Inspector Bailey took custody of the suspected cocaine and marijuana and conducted two tests on both substances. The results of his field test and Ion Scan test were positive for marijuana and cocaine. The evidence was then turned over to Inspector Yaw who conducted another Ion Scan test on the white powder confirming it as cocaine. Sergeant Dale Pfalzgraf of the Union County Sheriff's Office, was summoned to UCI on that day, after the suspected drugs were located in the Respondent's vehicle. Inspector Yaw turned over to him a sealed plastic bag containing what appeared to be marijuana and a tin-foil package of what appeared to be cocaine. Deputy Pfalzgraf placed the Respondent under arrest and transported her and the evidence to the Sheriff's office. He placed the evidence into a secure locker with the evidence custodian, pending its transportation to the Florida Department of Law Enforcement (FDLE) laboratory. Deputy Tomlinson of the Union County Sheriff's Office was given the evidence that was seized from the Respondent's vehicle by the evidence custodian and transported it to the FDLE laboratory in Jacksonville, Florida, for testing. At the FDLE laboratory, Allison Harms received the evidence from Deputy Tomlinson. The evidence bag remained sealed until testing was performed by Ms. Somera, the FDLE chemistry analyst. Ms. Somera tested the substances contained within the bag and positively identified them as cannibis and cocaine. The Respondent maintains in her testimony that her former husband had access to her vehicle and had used it in the last several days with some of his friends. She contends that he is a known illicit drug user (cocaine). She also states that she left the windows to her car slightly cracked for ventilation when she parked it in the parking lot on the day in question to go to work. She states, in essence, that either the illicit drug materials found in her car were placed there without her knowledge by her former husband or his friends or, alternatively, that the correctional officers involved in the investigation planted the drug materials in her car in order to remove her from employment and/or licensure as retaliation for past employment-related friction she states she had with prison authorities. She also contends that another prison employee told her in private that she was being "framed" but that that person refused to testify on her behalf because of fear of potential loss of his job. In any event, her self-serving testimony is not corroborated by any other witness or exhibit and is not credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent be found guilty of failure to maintain good moral character as defined by the above-cited legal authority and that her certification be suspended for a period of two years. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Erlene Stewart Route 1, Box 52 Sanderson, Florida 32087 A. Leon Lowry, II Program Director Division of Criminal Justice Professionalism Services 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 is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, 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 22nd day of February, 2018.
The Issue The issue is whether the certificate issued to Mr. Ramsey by the Criminal Justice Standards and Training Commission should be revoked for his failure to maintain good moral character through the use of cocaine.
Findings Of Fact Charles Ramsey was issued a certificate on October 2, 1981, by the Criminal Justice Standards and Training Commission, number 19-81-502-01, as a correctional officer. On April 12, 1988, Mr. Ramsey went to the Mount Sinai Medical Center for Industrial Medicine at 4300 Alton Road, Miami Beach, Florida 33140. The overall purpose of the visit was not clear, but as a part of his activities at the Center, Ramsey provided urine specimen for analysis. Before providing the specimen, Ramsey had disrobed, was wearing a hospital gown, and was escorted to a bathroom at the site, where he was given two marked specimen bottles. The first bottle was for the main sample, the second for any overflow if Mr. Ramsey's urine donation was greater than the size of the first bottle. Each bottle was a 60 ml. pharmaceutical round bottle. The specimen bottles had his name on them, a bar code identifying the bottles as bottles from an employee of the Metro-Dade Law Enforcement Department, and the unique specimen number of 117270. At that time, Mr. Ramsey initialed the information on the bottle acknowledging that it was correct. After he exited the bathroom and delivered the urine bottle it was sealed with evidence tape by the technician at Mount Sinai, Sonia Abreu, and was placed in a locked cabinet. The cabinet was opened with a key belonging to the courier for the Toxicology Testing Service of Miami, Florida. The urine was kept under lock and key until it was removed and brought to the screening room at Toxicology Testing Service. The technician there broke the seal and dispensed a sample into an automated clinical analyzer which performed an EMIT screen test on 3 ml. of urine. That test showed the presence of cocaine metabolites, i.e., substances left in the body after cocaine has been ingested and been processed by the metabolic action of the body. Based on this initial positive screening test result, another 3 ml. of the sample was used to perform the screening test again. When the screening test again was positive for cocaine metabolites, a more specific test for the presence of cocaine metabolites was performed by Dr. Terry Hall, who holds his doctorate in chemistry, and has specialized in forensic toxicology. The test was performed using a gas chromatograph and a mass spectrometer. The study showed the presence of methylecganine in the urine, which is a cocaine metabolite. The concentration of the methylecganire in the sample was such that it is likely that Mr. Ramsey used cocaine within the previous two weeks. Exposure to trace amounts of cocaine, such as from airborne cocaine which might be inhaled while measuring cocaine seized as part of a drug arrest, could not have yielded the high level of methylecganine found in Mr. Ramsey's urine. The level of metabolite is such that Mr. Ramsey would have had to ingest approximately 10 grams of cocaine.
Recommendation Based upon the foregoing, it is RECOMMENDED that the certificate held by Charles Ramsey be revoked for failure to maintain good moral character. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Ramsey 1064 Northwest 61st Street Miami, Florida 33127 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission
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.
Findings Of Fact At all times material hereto, respondent, Reyes P. Ramos, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department), having been issued certificate number 19-83-002-05 on October 29, 1983. On January 30, 1990, respondent, as part of his annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. Upon analysis, the sample taken from respondent proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 55 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. On February 5, 1990, the Opa-Locka Police Department notified respondent that the analysis of his urine sample had proved positive for the presence of cocaine, a controlled substance. In response, respondent offered to provide another sample for further analysis. Later that day, February 5, 1990, respondent provided a second sample of urine to TTS to be analyzed for the presence of controlled substances. Upon analysis, the second sample also proved positive for the presence of the cocaine metabolite, benzoylecgonine, but this time at a concentration of 9.2 nanograms per milliliter. Such reduced concentration is consistent with the initial concentration of 55 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. In concluding that the urine samples respondent gave proved positive for the presence of cocaine metabolite, careful consideration has been given to the collection, storage and handling procedures adopted by TTS, as well as its testing methods. In this regard, the procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable measure of the concentration of cocaine metabolite in the body. 1/ While the testing demonstrates the presence of cocaine metabolite in respondent's system, and therefore the presence of cocaine, it does not establish how ingestion occurred. 2/ It may be reasonably inferred, however, that such ingestion was proscribed by law, absent proof that the subject drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained. In response to the testing which revealed the presence of cocaine metabolite in his urine, respondent credibly denied the use of cocaine, and offered the testimony of a number of witnesses who know him well to lend credence to his denial. Those witnesses, who also testified credibly, observed that respondent is a person of good moral character who, among other qualities has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and could be relied upon in a position of trust and confidence. Moreover, from the testimony of those witnesses who have known respondent for an extended period of time, commencing well prior to the incident in question, it may be concluded that, in their opinions, it is the antithesis of respondent's character to have ingested or used cocaine. Apart from his denial, respondent offered two possible explanations for the presence of cocaine in his system: (1) that, during the week of January 18, 1990, he had been in contact with four to five K-9 training aids, which contained pseudo-cocaine, while cleaning out his dog's possessions, and (2) that he had been in contact with 10 bags of rock cocaine, during the course of duty, in the early part of January 1990. As to the first explanation, the proof demonstrates that respondent was, and had been for some time, a canine officer with the City of Opa-Locka Police Department, and had a dog named "Eagle" as his partner. "Eagle" was a cross-trained drug and work dog. In or about September 1988, respondent and his dog attended narcotic detection training through the Florida Highway Patrol, and received training aids, which contained "pseudo-cocaine," for use in training dogs in the detection of cocaine. These aids were comprised of newborn baby socks, inside of which was placed pseudo-cocaine. The socks were then closed at the top with rubber bands and placed inside a folded towel, which was then rolled and taped. According to respondent, he continued to use these aids 2-3 times a week, after leaving the Florida Highway Patrol course, to keep his dog proficient. Eagle died in early January 1990 and, according to respondent, the week of January 18, 1990, respondent cleared a number of items that were used in the care or training of Eagle from a small aluminum shed in his back yard. Among those items were the training aids, which contained pseudo-cocaine. According to respondent, he disposed of the training aids by cutting the tape from the towels, removed the sock, and then shook the pseudo-cocaine into a trash can, which caused some residue to become airborne and contact him. Respondent's counsel theorizes that such contact with the pseudo-cocaine, as well as the possibility that some residue could have been lodged under respondent's fingernails, when coupled with the fact that respondent occasionally bites his nails, could be an explanation for the positive reading respondent received. Notably, respondent offered no proof at hearing, through representatives from the Florida Highway Patrol or otherwise, as to the chemical composition of the pseudo-cocaine. Under such circumstances, there is no showing of record that the pseudo-cocaine could have resulted in the positive reading he received, and it would be pure speculation to conclude otherwise. As to respondent's second explanation, that in early January 1990, during the course of duty, he had been in contact with 10 bags of rock cocaine, it likewise does not provide a rational explanation for his positive test results. Notably, according to respondent, that rock cocaine was bagged and, necessarily, he would not have had physical contact with the substance. Moreover, even if touched such would not explain its ingestion, and, considering the lapse of time from the event and his testing, is not a rational explanation for the source of his positive results. While the explanations respondent advanced at hearing were not persuasive, such does not compel the conclusion that his testimony is to be discredited. Indeed, if respondent never used cocaine, it is not particularly telling that he could not offer a plausible explanation for what he perceived to be an aberration. Here, while the results of the urinalysis point toward guilt, respondent's credible testimony, the character evidence offered on his behalf, and respondent's employment record suggest otherwise. With regard to respondent's employment history, the proof demonstrates that respondent was on active duty with the United States military from 1966 until 1972, and with the Florida National Guard (FNG) from 1974 until 1983. Prior to reverting to an inactive status with the FNG, respondent attended and graduated from the Southeastern Institute of Criminal Justice, a police academy, and was thereafter certified as a law enforcement officer. Following certification, respondent was employed by the Village of Indian Creek as a police officer for one year, and from January 1985 until his severance in 1990 as a police officer with the City of Opa-Locka. Currently, respondent is employed by the FNG, with the rank of Sergeant First Class, as a military criminal investigator assigned to counter drug programs for the Department of Justice. From respondent's initial employment as a police officer through his current employment, but for the incident in question, respondent has consistently been recognized as a professional, loyal and dedicated police officer who has also dedicated substantial personal time and resources to community service. During this service, he was frequently commended for his performance, and he has further demonstrated dedication to his profession through continued training in the law enforcement field. Among those who testified on his behalf, and spoke approvingly of respondent's good moral character, were Christina Royo, a sworn law enforcement officer with the Florida Department of Law Enforcement, and Alejandro Suarez, a Sergeant First Class with the United States Military, employed as a criminal intelligence analyst, and currently attached to respondent's FNG unit. Each of these witnesses are employed in positions of trust involving sensitive areas of law enforcement, and have known the respondent well for over fifteen years. In their opinions, which are credible, respondent enjoys a reputation reflecting good moral character and, it may be gleamed from their testimony, the use of controlled substances by respondent would be most uncharacteristic. Given the nominal amount of cocaine metabolite disclosed by testing and the credible proof regarding respondent's character, the inference that would normally carry petitioner's burden following proof of a positive test for cocaine metabolite, that such finding reflected the unlawful ingestion of cocaine, cannot prevail. Rather, considering the proof, no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results. Accordingly, such results, standing alone, do not support the conclusion that respondent unlawfully ingested cocaine or that he is lacking of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of March 1995. WILLIAM J. KENDRICK 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 24th day of March 1995.
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 1990, in Tallahassee, Florida. K. N. AYERS 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 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
