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 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
The Issue The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
Findings Of Fact The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests. Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug Testing Programs" (DOT's Regulations). DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees. Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics. The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B). The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in each employee's personnel file. The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet. William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet. A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive. Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations. On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program. The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests. In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board. After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows: I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; that 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 attached to each bottle is correct. The lab technician followed the proper procedures for the collection of the single urine sample.1 Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form. The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen. There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample. Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations. There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control. A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body. The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California. On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion, Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis. An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis. Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days. Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed. The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis. At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive. As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services. School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part: No School Board employee shall unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . . Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction. As an employment condition, individuals shall: abide by the provisions of this School Board Rule. * * * The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein: Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes. Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment. The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with * * * (c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation. School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part: Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . . Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated. A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation. Any suspension or dismissal shall be pursuant to Florida Statutes. * * * Cause for dismissal shall include, but not be limited to: * * * (c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . . Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee. Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated. Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part: The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee. * * * Return to Duty Testing All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty. Follow-up Testing Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test. Positive Tests 1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program. The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part: Under what circumstances will a driver be subject to testing? * * * Return -to-duty testing: . . . Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a verified negative result for controlled substance use. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed. Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months. * * * What procedures will be used to test for the presence of controlled substances or alcohol? Controlled Substances All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). * * * What are the consequences for drivers found to have violated the prohibitions of this rule? Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: -- Drivers shall not be permitted to perform safety-sensitive functions. -- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances. -- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use. -- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use. -- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed. -- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months. The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion. By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting. On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample. The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated. By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board. Mr. Barber requested a formal hearing regarding the termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position. DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1998.
Findings Of Fact Respondent is a certified corrections officer, certificate number 68527. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine. The positive test was observed by Sgt. Farless and Respondent. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance. The area Respondent was traveling through is known as a high drug area with a high crime rate. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.
Findings Of Fact At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary. DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.
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
The Issue The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ 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 law enforcement officer, issued law enforcement certificate 233642. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest 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 Quest is an immunoassay test used to screen all samples. Any sample that is positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine. Respondent was terminated from his position as a law enforcement officer by the JSO. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.
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 law enforcement officer be suspended for a period of 60 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 3rd day of February, 2011, 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 3rd day of February, 2011.
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
