The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this proceeding is whether Petitioner was the subject of unlawful sexual harassment by Respondent and whether Petitioner was subjected to unlawful retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Julie Hembrough, was a female employee of Respondent, Sikorsky Support Services. She was employed as a senior calibration technician at the Pensacola Naval Air Station (Pensacola NAS). As part of her duties she was in charge of monitoring the quality of the work her section performed and the employees who performed that work. Petitioner came to work at Pensacola NAS with Sikorsky’s predecessor, Lear Siegler (LSI). Sikorsky is a “drug free” workplace and has a written policy, entitled "Sikorsky Support Services, Inc. Strike Pensacola, Florida Drug-Free Work Force and Work Place Manual,” as part of its collective bargaining agreement. The drug free workplace policy requires periodic random drug testing of employees. The policy states: An employee who refuses to take a drug test under Section . . .V.5 Random Testing will be terminated for violation of this policy. Petitioner went through an initial drug test when Sikorsky took over the Pensacola NAS maintenance contract and hired the LSI workers. Petitioner was aware that random drug testing occurred and was required by Respondent. She knew that there had been previous random drug tests at the Pensacola NAS. Petitioner was considered a hard worker and competent technical leader of her calibration section. However, there were personality conflicts throughout the section in which Petitioner worked. The problems in the section stemmed from a weak supervisor, who was eventually terminated, who did not hold employees to the performance standards for the section, and who did not support the technical leaders, like Petitioner, when they tried to enforce those performance standards. The supervisory problems resulted in various factions in the work place. The factions were comprised of both male and female employees. Petitioner had particular conflicts with two employees, Roger York and Leon Mills. Petitioner herself testified that her conflicts with Roger York stemmed from a work disagreement regarding the repair of certain Navy radios. Mr. Mills did not want to perform certain tests on Navy radios that Petitioner thought were required for thorough testing of the radios. Petitioner also felt, with some factual basis, that Mr. Mills was not honest with her when he represented to her that he had performed such tests. Petitioner’s problems with Leon Mills were of a similar nature to those with Mr. York. However, Mr. Mills accused Petitioner of fraud in relation to trying to get rid of him. The evidence did not demonstrate that any of the difficulties with these men were related to Petitioner’s gender, but what little unspecified name-calling or derogatory statements there were was the result of animosity toward Petitioner and her supervisory role. Some workers considered Petitioner a “spy” for the Respondent. Other workers accused Petitioner of trying to “get rid of” Leon Mills through fraudulent means. Indeed Mr. Mills complained to the union about Petitioner and that he thought she was trying to get rid of him. Feelings against Petitioner were so strong that, even though she was a member of the union, she was asked by the union shop steward to not attend a union meeting. Respondent had no input or control over the union’s request to Petitioner. In September 2000, Petitioner orally complained to her manager, Joe Diehl, that another male worker used the word "bitch" and talked about his sex life and that someone else told her to put on some makeup. The details of the facts surrounding these comments were not introduced into evidence. Therefore, it is unclear if they were harassing in nature. Petitioner was never physically grabbed or groped by anyone at Sikorsky, was not sexually propositioned, and no one ever threatened her with adverse action if she refused to perform any type of sexual activity. She did not see open pornography in the workplace. Moreover, such sporadic comments do not constitute sexual harassment. She again complained in August 2001. The actual written complaints were not introduced into evidence. In essence, the bulk of the oral complaints revolved around the work problems in the section and the multi-gender employee animosity toward Petitioner. Sikorsky took Petitioner’s complaints seriously and investigated the complaints. During the investigation, people from the “upper echelon” of the company were brought in to investigate. However, the investigators could not corroborate Petitioner’s claims of sexual harassment. They did find that the section had various problems as described above. Nevertheless, to make sure that everyone understood the seriousness of sexual harassment issues, the site manager held a training session on Sikorsky’s sexual harassment policies. Petitioner attended the training session. The site manager also personally delivered the findings of the investigators to Petitioner, to show he was involved and to make Petitioner understand that Sikorsky was taking the issue seriously. Petitioner was invited to come forward with any complaints she may have at any time. After advising Petitioner of the results of the investigation, the site manager spoke to her several times encouraging her to come forward with any issues. He stopped by Petitioner’s work area in the section and asked if she was having any problems. Petitioner told him things were going okay and that she was not having any problems. Petitioner testified that sometime in May, she advised her supervisors that she intended to file another internal complaint because of actions by the union and because she had found “hot sauce” on her vehicle. Petitioner complained that the union accused her of committing fraud and that she was excluded from a union meeting. However, as indicated above, it was the union steward, not Sikorsky, that asked Petitioner not to attend the union meeting. Sikorsky was not involved in the union meeting or any accusations of fraud by the union against Petitioner. These facts do not support a finding of sexual harassment by Sikorsky. The “hot sauce” incident occurred while her vehicle was parked in an open, unfenced parking lot owned by the U.S. Navy. The Navy was responsible for security in the parking lot. Petitioner discovered that someone had poured hot sauce over her vehicle. Upon seeing the substance, Petitioner got in her vehicle and drove home. She called her manager from her vehicle to inform him about the incident. He advised her it was probably “too late” to do anything since she had left the scene. Petitioner did not see anyone put the substance on her vehicle, and does not know who did it, although she strongly suspects it was a particular coworker. Petitioner never reported the incident to Navy security. Without more detail and given the animosity in the workplace with allegations of spying and fraud, the incident does not support any finding that Petitioner was sexually harassed or that Sikorsky was responsible for such alleged harassment. On May 6, 2002, seventeen Sikorsky employees were selected for random urinalysis at Sikorsky; five employees were selected as alternates. Petitioner was one of the employees selected. Sikorsky employs a third-party contractor, Professional Health Examiners (PHE), to select the individuals to be drug tested and to administer the drug test. PHE and Sikorsky use a “name blind” system to select individuals for testing. Before a test day, Sikorsky’s administrative manager sends a list of partial social security numbers to PHE. Sikorsky does not give names to PHE, but only partial social security numbers. PHE then inputs the partial social security numbers into a computer program, which randomly selects a percentage of the numbers. Once the numbers are selected, PHE sends the list of numbers to Sikorsky. The administrative manager then matches the selected numbers with an employee list to determine the employees named. On the day of the test, those selected are called to take the test at a specific time and location. Petitioner was notified of her selection at approximately 7:15 a.m. and told to immediately report to the test site to take the test. She did not go to the drug test site, but went directly to the office of her manager, Joseph Diehl. Petitioner refused to take the drug test at the time the test was scheduled. At the time, Petitioner had no knowledge of the drug testing selection procedures and did not ask what the procedures were; she also wanted to speak with her attorney. Joseph Diehl called the administrative manager. At approximately 7:30 a.m., the administrative manager went to Diehl’s office. Since neither had been confronted with a situation similar to this one, Diehl and the manager allowed Petitioner to call her lawyer. However, her lawyer was unavailable. The morning of the drug test, the site manager and Diehl’s supervisor, Joe Colbert, had jury duty and had not arrived. Therefore, Mr. Diehl called Dan Pennington, the program manager, for guidance. Mr. Pennington stated in more colloquial language, that Petitioner must either immediately submit to the drug test per corporate policy or be terminated. Mr. Diehl, again in more colloquial language, passed the direct order to Petitioner to take the test or face termination. Petitioner said she would not take the test without calling her lawyer. Later in the morning, Petitioner spoke with Michael Neri, her supervisor, and told him she was quitting. Mr Neri had been hired only three weeks earlier and was familiar with the drug test policy. Mr. Neri told Petitioner to take the test, and that if she did not take the test, she would be terminated. Petitioner met with the site manager, Joe Colbert, after 9:00 a.m. He told her to take the test or she would be terminated. He told her that once she took the test, her lawyer could take whatever steps she wanted to take, but that she needed to take the test. All of Petitioner’s supervisors wanted Petitioner to take the test because she was a good employee whom they did not want to terminate. Petitioner did not take the test. Mr. Colbert then suspended Petitioner and gave her a letter of suspension, pending termination. The letter stated that the reason for the suspension was her refusal to take the drug test at the appointed time. Because Petitioner suggested that she had been targeted for selection for the drug test, Mr. Colbert assigned one of his managers, Frank Eggleton, to conduct an investigation of the procedures. Mr. Colbert told Petitioner that if the investigation came back clean, she would be terminated. Later in the morning, at approximately 11:00 a.m., on May 6, 2002, Petitioner called Joe Diehl and informed him that she had spoken to her lawyer and was willing to participate in the random drug testing. However, it was too late. Mr. Colbert refused to allow Petitioner to take the test at that time because she had already been suspended. Mr. Colbert testified that Petitioner had had her opportunity more than once to participate. He was concerned that if he made exceptions to the mandatory random drug testing policy, then it would open the door for everyone to seek to defer taking a random drug test. This rationale was reasonable and not pretextual. Mr. Colbert told Mr. Eggleton to investigate how individual employees were selected for the random drug test and to determine if Petitioner had somehow been targeted. Mr. Colbert did not pressure Mr. Eggleton to reach any particular conclusion and told him to conduct a thorough, open investigation. Mr. Eggleton visited the facilities of PHE to determine how individuals were selected. After conducting his investigation, Mr. Eggleton reported to Mr. Colbert that the drug-testing contractor used a name-blind system for selection and that there was no indication that Petitioner had been targeted. PHE had nothing to do with the decision to terminate Petitioner and Sikorsky did not pressure PHE to select Petitioner for the drug test. In fact, there was no evidence at the hearing that Petitioner was targeted for drug testing. After receiving the investigation report, Mr. Colbert decided to terminate Petitioner’s employment based on her refusal to take the drug test at the appointed time. He obtained the approval of the necessary authorities at Sikorsky. On May 10, 2002, Petitioner’s employment was terminated. In April 2002, employee Brian McHenry was selected for random drug testing. Mr. McHenry, prior to discovering he was going to be drug tested, used the restroom just before he was told of the drug test. As a result, Mr. McHenry was unable to produce a sufficient urine sample to allow PHE to perform a the test. He took part, tried to produce a sample, and actually produced a urine sample, but it was not enough for testing purposes. After a few hours of drinking fluids Mr. McHenry still could not produce a sufficient urine sample. Mr. Colbert wanted Mr. McHenry to stay late until he could provide a sample, but Mr. McHenry had a serious child care problem that day and needed to pick up his child in Alabama. Because Mr. McHenry had tried to complete the drug test, and because of the child care problem, Mr. Colbert told Mr. McHenry to go to the test facility in the morning. Unlike Petitioner, McHenry did not refuse the drug test; he could not provide a sufficient urine sample. The McHenry case is not similar to Petitioner’s situation. Moreover, Mr. Colbert testified that if Mr. McHenry had refused to take the test, he would have been fired. Likewise, there was no evidence at the hearing that Petitioner was terminated because of her previous internal complaints. There was no evidence Petitioner was selected for drug testing because of her previous complaints. In fact Mr. Colbert did not have knowledge of Petitioner’s two complaints, since both complaints were handled by the previous site manager. Mr. Colbert was aware of Petitioner's complaint about hot sauce thrown on her car, but said he did not even consider it a sexual harassment issue. Petitioner did not put forth sufficient evidence to prove a claim of sexual harassment. She did not introduce evidence that any conduct she complained of was severe or pervasive, or that the allegedly harassing conduct was because of her gender, as opposed to some other reason such as thinking she was a spy. Likewise, Petitioner failed to establish that she was terminated for any complaints she had made to Respondent. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S 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 26th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gregor J. Schwinghammer, Esquire Gunster, Yoakley & Stewart, P.A. Phillips Point, East Tower 777 South Flagler Drive, Suite 500 West Palm Beach, Florida 33401 Debra Cooper, Esquire Law Offices of Debra Cooper 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
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, Cheryl A. Odom, 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 (Commission), having been issued certificate number 02-028628 on June 4, 1982. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her 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. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. 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 analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 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. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/ In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/ Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks 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 this 8th day of August 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1995.
The Issue The issue is whether Respondent is guilty of violating Petitioner's rule requiring that all employees Respondent's job classification submit to random drug testing.
Findings Of Fact At all material times, Petitioner employed Respondent as a school bus driver. On January 12, 1995, Petitioner's representatives conducted a Drug Free Workplace Employee Training Session, which was attended by Respondent. This training session was one of many such sessions at which Petitioner's representatives explained to each covered employee the provisions of Petitioner's drug policies. These provisions include a provision that a refusal to take a random drug test is tantamount to failing a drug test and a basis for termination. The Employee Information on Drug and Alcohol Testing, which is the handbook distributed to Petitioner's school bus drivers, including Respondent, informs each driver that Petitioner will annually administer random drug tests to half of the driver positions and that, if selected for a random drug test, the driver must report immediately to the testing laboratory. The employee handbook informs drivers that a refusal to submit to a random drug test is prohibited. The employee handbook explains that engaging "in conduct that clearly obstructs the testing process" constitutes a refusal to submit to a random drug test. The employee handbook notes that conduct obstructing the testing process includes a "failure to immediately report to the testing facility after notification." Finally, the employee handbook warns that Petitioner may terminate drivers who have engaged in prohibited behavior. Article 32, Section 2, of the 1998-2000 Agreement Between the School Board of Pinellas County, Florida, and School Employees Union, Local 1221, Firemen & Oilers, An Affiliate of Service Employees International Union, AFL/CIO, CLC, contains the same requirements as those set forth above in the employee handbook. Section 3 warns that a violation of any of these requirements by a covered employee may result in termination. On March 21, 2000, Petitioner's Transportation Clerk Specialist II summoned Respondent to the transportation offices. When Respondent reported to her office, the clerk informed Respondent that she had selected him for random drug testing. Obviously, element of surprise is an important feature of random drug testing. Equally important to random drug testing is the control of the subject between the point at which he is informed that he is to take a random drug test and the production of the sample or samples to be tested; given enough time between the notification and the test, a subject might be able to ingest substances that could interfere with the ability of the test to detect drugs. Also important to random drug testing is the confirmation that the person presenting himself at the testing laboratory is the person who has been randomly selected for testing. Each of these elements plays a role in this case. Petitioner's clerk checked Respondent's identification, including his driver's license, and explained to him the procedures that he was to follow. Respondent had undergone random drug testing in the past while employed by Petitioner. In brief, Petitioner's clerk told Respondent that he had to report immediately to the testing laboratory, which is a short drive from the office. The clerk instructed Respondent to sign in upon arrival at the laboratory and, when called, to present all of the paperwork that she was giving him, as well as his driver's license. Petitioner's clerk warned him that he could not leave the laboratory premises until he had completed the drug test. Respondent reported immediately to the laboratory and signed in, as instructed. When called, Respondent presented his paperwork to the laboratory clerk, but he did not produce his driver's license, claiming that he did not have it with him. Respondent is not the first employee to appear at the laboratory without suitable identification. Petitioner's procedure is to maintain a photocopy of each employee's driver's license and fax the photocopy to the laboratory when employees report to the laboratory without identification. If the laboratory clerk cannot positively confirm the identification of the employee from the photocopied identification, then the laboratory employee detains the employee while Petitioner sends the employee's supervisor to the nearby laboratory to confirm the identity of the employee. Once done, the drug test proceeds. Pursuant to this procedure, the laboratory clerk telephoned Petitioner's clerk and informed her that Respondent had failed to produce his driver's license. The testimony of the laboratory clerk and Petitioner's clerk diverges at this point; each claims that the other clerk spoke to Respondent. However, the laboratory clerk testifies that she summarized the instructions given Respondent over the telephone by Petitioner's clerk. Just before Respondent left the reception room to search the bus for his driver's license, the laboratory clerk told him that he could go to the bus to look for his driver's license, but he was to return to the reception room. In any event, the clerks agree that Respondent received permission to return, unescorted, to his bus to search for his driver's license--a deviation from established procedure that prohibits the employee from leaving the laboratory once he has reported for a random drug test. The testimony of the clerks establishes that Respondent was permitted to return, unescorted, to his bus to search for his driver's license. The testimony of the laboratory clerk establishes that she clearly directed Respondent to look for his driver's license in the bus and return to the reception room. The discrepancy in the testimony of the clerks as to who conveyed the substance of the additional instructions to Respondent is, ultimately, immaterial; the possibility that one of the clerks could have given Respondent permission to leave the laboratory parking lot to search for his driver's license, or the possibility that Respondent could have misunderstood the clerk to have given him this permission, is negated by Respondent's later conversation with the Assistant Director of Transportation, as set forth below. Following his conversation with the laboratory clerk and possibly Petitioner's clerk, Respondent left the laboratory and went to his bus, ostensibly to search for his driver's license. Respondent did not return to the laboratory, but, instead, drove his bus back to the bus compound. Evidently, Respondent went home after returning his bus. One to one and one-half hours after leaving the laboratory, Respondent telephoned Petitioner's clerk and informed her that he had not found his license and had instead become sick, so he had gone home to eat something and take his medicine. Respondent told her that he had retraced his steps, but had not found his driver's license. At this point, Petitioner's clerk transferred the call to her supervisor, who is the Assistant Director of Transportation. The Assistant Director of Transportation started their conversation by stating her understanding that Petitioner had sent Respondent for a random drug test, but he had not completed it. Respondent answered that he could not find his driver's license and believed that Petitioner's clerk may have failed to return it to him earlier in the morning when she had examined it. The Assistant Director of Transportation replied that the clerk had looked for the driver's license and failed to find it, so that they were sure that she had not failed to return it to Respondent. Pausing for about five seconds, Respondent answered, "I wasn't feeling well. I had to go home and take my medication." The Assistant Director of Transportation replied that she would treat this as a refusal to submit to a drug test. They spoke for a few moments more, confirming that Respondent was calling from his home and that the bus was at the compound. The Assistant Director then directed Respondent not to report to work and told him that a personnel employee would be contacting him. Respondent concluded the conversation by repeating that he had not been feeling well. At no point in the conversation with Petitioner's clerk or the Assistant Director of Transportation did Respondent ever claim that he left the laboratory parking lot with the permission of Petitioner's clerk or the laboratory clerk or that he left the laboratory parking lot thinking that he had the permission of one of the clerks. It appears that he had ample opportunity in his conversation with the Assistant Director of Transportation to make this claim. Instead, Respondent merely repeated his claim that he became ill. Thus, it is very likely that Respondent clearly understood the final directions of the laboratory clerk: Respondent was to search his bus for the driver's license and then return to the laboratory reception room. It is thus not difficult to determine that it is considerably more likely than not that Respondent left the laboratory parking lot, knowing that he did not have the permission of either clerk to do so. Petitioner's witnesses testified candidly. The Assistant Director of Transportation did not appear overbearing or intimidating, so as to deter Respondent from presenting all of the facts in his defense, such as a claim that he had left the parking lot with the accurate or mistaken impression that he could do so in an effort to find his driver's license. It is only a little more difficult to determine that Respondent's claim of illness as the cause for his departure from the parking lot is more likely than not to be a fabrication. The coincidence of a random drug test, misplaced driver's license, and sudden onset of debilitating illness is unlikely. Presumably, the illness would have arisen after Respondent had spoken to the laboratory clerk, or else Respondent would have mentioned something to her when he was in the reception room. Even if Respondent had been suddenly struck by some illness while on his way to search the bus or while searching the bus, he would have been able to return to the reception room and tell the laboratory clerk either that he had fallen ill and had to go home immediately or that he had fallen ill and needed to produce a urine sample immediately, with or without further identification. Obviously, the illness had not been so debilitating to have prevented Respondent from returning to the reception room and telling the laboratory clerk of the illness; after all, Respondent was able to drive the bus to the bus compound and then drive himself home. Based on all of the facts, Petitioner properly treated Respondent's acts and omissions as the equivalent of refusing to submit to a random drug test and, as authorized by the collective bargaining agreement, properly terminated Respondent's employment as a school bus driver.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of October, 2000, in Tallahassee, Leon County, Florida. 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 17th day of October, 2000. COPIES FURNISHED: Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 Jacqueline M. Spoto, Staff Attorney Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Glenn Cromartie 1639 26th Street, South St. Petersburg, Florida 33712
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
