Findings Of Fact At all pertinent times, Aubrey Moran, who holds a Florida pharmacist's license, No. 0010982, was the managing pharmacist and the dispensing pharmacist at Lake Mary Pharmacy, 185 North Country Club Road, Lake Mary, Florida, a community pharmacy that holds permit No. 0007301. Half a block away from Lake Mary Pharmacy Robert L. Bevier, M.D., who was then Lake Mary's "principal general practitioner," had his office. COCAINE In the fall of 1981, Dr. Bevier brought respondent an article from a medical journal, which read, as follows: Make Your Own TAC; It Works Well Atlanta--An Atlanta emergency physician has reported good results with a topical anesthetic called TAC made of tetracaine, cocaine, and epinephrine. Dr. Michael Kessler, director of a seminar on Outpatient Surgical Techniques for the Non-Surgeon, said his group at a freestanding emergency clinic sees large numbers of pediatric patients, and TAC has worked well as a topical anesthetic for children as well as adults. The recipe for TAC (taken from the January 1980 Journal of the American College of Emergency Physicians, according to Kessler) calls for 300 mg. tetracaine hydrochloride powder; one-fourth ounce (7,090 mg.) cocaine flakes; 30 cc 1:1000 inject epinephrine, and distilled water. The tetracaine is dissolved in a small amount of distilled water; the epinephrine and cocaine added; and the mixture combined with distilled water to make 60 cc volume. It should be stored in a brown bottle and has a shelf-life of 21 to 30 days. Dr. Bevier asked Mr. Moran to compound some of this mixture. Mr. Moran did not keep cocaine in stock ordinarily, but he acquired some from a wholesaler and dispensed 60 cc. amounts of the TAC solution to Dr. Bevier on three occasions. On each occasion Dr. Bevier wrote a prescription for himself on a form on which "AB 8796510" appeared just under his signature. The prescriptions were dated September 8, November 3 and November 23, 1981, and were filled on the dates written, except for the first, which was not filled until September 14, 1981, perhaps because of a delay in obtaining ingredients. Mr. Moran was under the impression that Dr. Bevier was using the solution as a local anesthetic in his practice for procedures like the removal of warts. Solutions of this type are also used to anesthetize mucous membranes. Cocaine in solution with epinephrine is of no use to an abuser. Deposition of Charles L. Park, p. Testimony of Respondent. (T. 112) In early December of 1981, Dr. Bevier asked Mr. Moran for the TAC ingredients to keep on hold in his office so that he could mix the solution up along, as needed. Mr. Moran's only information about shelf life was what he had read in the article from the medical journal Dr. Bevier had shown him. He did in fact deliver the ingredients to Dr. Bevier, including four quarter ounce packages of cocaine hydrochloride flakes, on December 3, 1982. Dr. Bevier signed the official Drug Enforcement Administration form (DEA 222) required in connection with this transaction, and delivered it to the pharmacy. INVESTIGATOR ARRIVES After the cocaine flake purchases, Will A. Merrill, an investigator for petitioner Department of Professional Regulation visited Mr. Moran in the course of investigating Dr. Bevier. On May 27 and 28, 1982, Mr. Merrill examined respondent's records, and talked to Mr. Moran. Precisely what was said is a matter of dispute. At the very least, Mr. Merrill advised Mr. Moran that irregularities in Dr. Bevier's record keeping regarding Schedule II drugs were being looked into. Cocaine, Demerol (Meperidine) and Dilaudid are all controlled substances, and are listed on Schedule II in Chapter 893, Florida Statutes. The investigation culminated in an emergency suspension of Dr. Bevier's license to practice medicine on September 12, 1982. Thereafter the investigation of respondents began. DEMEROL AND DILAUDID Lige Williams, a cancer victim, was Dr. Bevier's stepfather. On July 14, 1982, and again on August 2, 1982, Mr. Moran filled prescriptions for Mr. Williams written by Dr. Bevier, each for sixty 100 milligram tablets of Demerol. He dispensed the medicine to Mr. Williams. On August 9, 1982, Mr. Moran dispensed a 20 milliliter ampule of Demerol to Dr. Bevier for office use after Dr. Bevier signed the appropriate Form 222. Dr. Bevier himself came into Lake Mary Pharmacy with a prescription for one hundred 100 milligram tablets of Demerol for Lige Williams on August 13, 1982, and Mr. Moran filled the prescription. On August 16, 1982, Mr. Moran dispensed a second 20 milliliter ampule of Demerol to Dr. Bevier for office use, again after Dr. Bevier signed the appropriate Form 222. Three days later Dr. Bevier presented another prescription for a hundred 100 milligram tablets of Demerol for Lige Williams, which Mr. Moran filled. On August 26 and September 8, 1982, Dr. Bevier signed two more Form 222s and Mr. Moran dispensed two more 20 milliliter ampules of Demerol for office use. Dr. Bevier told Mr. Moran that the Demerol ampules were "primarily . . . for Mr. Williams' use." (T. 103) The parties stipulated that Mr. Moran dispensed another fifty 100 milligram tablets of Demerol at some time "from or about May 1, 1981 until August 30, 1982" to unspecified person(s) under unspecified circumstances. On September 9, 1982, Mr. Moran filled a prescription Dr. Bevier wrote and personally presented for Lige Williams for 100 four milligram tablets of Dilaudid. When Mr. Moran questioned the quantity of tablets, Dr. Bevier said that Lige Williams was leaving Lake Mary to go back to his own home and that he "want[ed] him to have enough tablets to get him up there and hold him until he can be seen by a physician up there." (T. 93) Dilaudid and Demerol in the sequence and dosages to be inferred from the prescriptions Mr. Moran filled for Mr. Williams, even assuming Mr. Williams received the full contents of all four ampules, are commonly and appropriately prescribed for terminally ill cancer patients, according to the uncontroverted medical testimony.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaints filed against respondents. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984. COPIES FURNISHED: Bruce D. Lamb, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. C. Hutchison, Jr., Esq. Hutchison & Mamele 230 North Park Avenue Sanford, Florida 32771 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida, and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.; § 1001.32, Fla. Stat. (2016). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a two-year probationary period, and required Respondent to submit to substance abuse treatment. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who was at work. Respondent’s calls were not answered by Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.” At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows: I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day. And she asked me for pain pills or if I had any, and I said no.[1/] Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication. Mr. Long then contacted the school board’s office of human resources to report what he had been told by Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.” Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.” During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/ At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit to drug testing pursuant to the school board’s drug-free workplace policy. Reasonable Suspicion Indicators Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows: Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy. Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting Abnormal or erratic behavior Evidence of possession, dispensation, or use of a prohibited substance Industrial accident requiring medical attention Physical altercation or assault Odors and/or Appearance Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess very flushed very pale Jerky eye movements Unfocused, blank stare Dilated or constricted pupils Dry mouth, frequent swallowing or wetting lips Bloodshot or watery eyes Behavior and Speech Slurred or incoherent speech Breathing difficulty or irregularity Loss of physical control, dizzy or fainting Unsteady walk, poor coordination Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude Irritable, moody, belligerent or aggressive demeanor Nausea or vomiting Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness Rambling, loud, fast, silly or repetitious speech Talkative, cursing, other inappropriate speech Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions Mr. Carter and Ms. Anderson each completed a checklist. None of the indicators listed above were checked by either Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4, 2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing. Morphine and Imitrex Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and] [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her 2016-2017 annual contract with the School Board. DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 14th day of July, 2017.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 30, 1989, certified as a law enforcement officer in the State of Florida. He holds Law Enforcement Certificate Number 31895. At all times material to the instant case Respondent was employed as a sergeant by the Miami-Dade County Police Department. During his employment, Respondent was a member of the Miami-Dade County Police Department's Tactical Narcotics Team. As a team member, he came into contact with and handled controlled substances, including cocaine, in discharging his duties. Respondent's employment with the Miami-Dade County Police Department was involuntarily terminated after his urine tested positive for cocaine. The test was part of a regularly scheduled biannual physical examination he was required to undergo by the Miami- Dade County Police Department. The examination was conducted the morning of January 24, 2002, at Mount Sinai Medical Center in Miami Beach, Florida. Respondent gave the urine sample that tested positive for cocaine approximately 8:00 a.m. that morning. Respondent had almost a month's advance written notice of the examination. The written notice he received listed "all the tests" he would be given during the examination. Respondent could have requested that the examination be rescheduled (by "go[ing] through [his] station"), but he did not make such a request. The urine sample that Respondent gave as part of the examination was tested and analyzed by Toxicology Testing Service, Inc. (TTS). TTS received Respondent's urine sample "intact" (in two sealed and labeled containers) the afternoon of January 24, 2002. One of the containers was then unsealed and its contents tested and analyzed. The other container was "kept frozen." TTS's initial screening of the contents of the unsealed container indicated the presumptive presence of benzoylecgonine, a metabolite produced when (and only when) cocaine is ingested and metabolized in the body. TTS then performed confirmatory testing using gas chromotography-mass spectrometry analysis. Gas chromotography-mass spectrometry analysis is an exceptionally reliable and accurate method of confirmatory testing.2 The gas chromotography-mass spectrometry analysis, which was done on February 1, 2002, confirmed the presence of benzoylecgonine in Respondent's urine specimen at the level of 575 nanograms per milliter, a result consistent with, and indicative of, Respondent's having ingested cocaine prior to the collection of his urine specimen. There was no umetabolized "parent cocaine" detected in the specimen.3 Neither did testing reveal the presence of cocaethylene (the metabolite formed in most, but not all, persons when cocaine is ingested together with alcohol) or ethyl ecgonine ester (a metabolite which is a "breakdown" product of cocaethylene). It is undisputed that, in conducting its testing and analysis, TTS followed required testing protocol designed to ensure reliable results. The results of TTS's testing and analysis were reported to the Miami-Dade County Police Department. After receiving these results, the Miami-Dade County Police Department commenced an internal affairs investigation of the matter. Lieutenant Cynthia Machanic was assigned the task of heading up the investigation. As part of the investigation, Lieutenant Machanic asked Respondent to give a sworn statement explaining "how he would [have] come to have a positive drug test." Respondent had not at any time knowingly ingested cocaine. He therefore had to resort to speculation and conjecture to provide the explanation Lieutenant Machanic sought. He did not remember having participated on the Tactical Narcotics Team, or having engaged in any other job- related activity, in which he would have come in contact with cocaine, close in time to his January 24, 2002, biannual examination. The "only logical, plausible explanation" he could come up with was that, on the evening of January 22, 2002, while attending a bachelor party for a fellow Miami-Dade County police officer at the Play Pen South, a topless nightclub, one of the dancer's at the nightclub, with whom he had gotten into an argument over payment for a "lap dance," had "put something in [his last] drink [that evening] which caused [him] to test positive for cocaine." He had not seen anyone, including any of the nightclub's dancers, "put anything in [any of his] drink[s]" that evening, but he had left his last drink unattended before consuming its contents and he felt, at the time he was questioned by Lieutenant Machanic, that it was possible that the drink could have been tampered with when out of his sight. This last drink, a 12-ouncce beer, had been his eighth of the evening. In addition to these eight beers, he had consumed four shots of scotch while at the bachelor party. Two dancers and a bartender at the Playpen South also gave statements during the investigative process. Following the completion of the internal affairs investigation Respondent's employment with the Miami-Dade County Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 31st day of August, 2004.
The Issue Whether disciplinary action should be taken against Respondent's license no. 15-02311, 4COP, based on the violations of Sections 893.13, 561.29, and 823.13, Florida Statutes, as charged in the Second Amended Notice to Show Cause filed against Respondent in this proceeding.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Respondent is Manos, Inc., d/b/a Sea Port Restaurant and Lighthouse Lounge. Respondent holds Beverage License No. 15-02311, 4COP, and is located at 680 George King Boulevard, Cape Canaveral, Florida 32920. Raymond J. Cascella is the president, vice-president and secretary of Respondent. Cascella indicated that his wife, Eileen Cascella, was the manager of Respondent's restaurant and lounge during the period of June through August 2001. A customer going by the name of "Red" had been at the establishment three or four times a week for a couple of years. Mahatha Brownlee is the individual who goes by the nickname "Red" and frequents Respondent's establishment. An individual going by the name of "Diamond" had been at the establishment frequently over a period of six months. Ronald Carlson, caretaker of the premises during the relevant time-period of June through August 2001, became aware that drug usage was occurring on the licensed premises when two bartenders of Respondent complained to him. Carlson also observed that whenever uniformed officers came into the establishment, many of the customers would get up and leave. Deputy Thomas D. Rodgers made two arrests on drug warrants inside the licensed premises during 2001, both of whom were employees of Respondent. On July 31, 2001, Special Agent Bethany Driggers, DABT, while in the licensed premises overheard a conversation whereby a customer asked a bartender about the availability of crack cocaine at the licensed premises. Stephanie Farrington, a bartender employed by Respondent, gave a statement to law enforcement under oath, which Special Agent Richard Waters, DABT, signed as a witness. The sworn statement of Stephanie Farrington was introduced as a business record exception. Respondent's qualified representative waived any objection to its introduction. Sometime in July 2002, Farrington confronted Cascella about the drug abuse in his business and the obvious drug dealing going on in the establishment. Cascella told her to go speak to the suspect known as "Red" to let "Red" handle it. Farrington had spoken with the manager, Eileen Cascella, as well, who indicated that she was aware that drug dealing was going on in the premises. Richard Hurlburt is a Special Agent with DABT. He is an 18-year veteran agent and has prior law enforcement experience. Agent Hurlburt was found, without objection, to be an expert in conducting undercover operations. Agent Hurlburt, based on his training and experience, believed that there was rampant drug dealing going on at the licensed premises, during the months of June through August 2001. Agent Hurlburt began his investigation during the daytime hours in June 2001, so that he could have more of a one- on-one contact with the employees. As a result of the violations he observed occurring during the day, Agent Hurlburt was able to conduct the investigation during the day and avoid the violence that frequently occurred at the premises in the later hours. Agent Hurlburt indicated that a suspect's exchange of a wad of money with an employee and receiving a large bill in return is consistent with the actions of drug dealers. In June 2001, Agent Hurlburt observed suspect "Red" exchange a wad of money with Cascella and receive a large bill in return. On June 27, 2001, Agent Hurlburt was served a beer by suspect "Red" while on the subject premises. On June 27, 2001, Agent Hurlburt purchased drugs twice from suspect "Big Mama," a person not further identified. Agent Hurlburt turned both samples of suspected crack cocaine over to Special Agent Roy Dotson, DABT. Agent Dotson is a ten-year law enforcement veteran with over 1,500 hours of specialized training. Agent Dotson has field-tested suspected crack cocaine over 500 times and has never had a field test result invalidated by later testing. Agent Dotson field-tested the suspected crack cocaine turned over to him by Agent Hurlburt on June 27, 2001, and the results were positive for the presence of cocaine. Special Agent Gregory Aliberti, DABT, secured the suspected crack cocaine purchased by Agent Hurlburt on July 11, 2001. Kim Poon, employed by the Florida Department of Law Enforcement (FDLE) as a crime laboratory analyst, was recognized, without objection as an expert drug analyst. Poon used two separate instrument tests, the mass spectrometer, as well as a gas chromatograph. Poon indicated that when the instruments are used correctly and in conjunction, the instruments are foolproof, there is no room for error. None of the drugs in this case that were in Poon's possession were tampered with to his knowledge. The three exhibits were tested and came back positive for cocaine, using the aforementioned two tests. The drugs purchased by Agent Hurlburt on June 27, 2001, were tested and the results came back positive for cocaine. On June 29, 2001, Agent Hurlburt purchased $20 of crack cocaine from suspect "Big Mama" and turned these drugs over to Agent Aliberti. These drugs were subsequently tested positive for cocaine. On or about July 2001, Agent Hurlburt, DABT, while in the licensed premises overheard a conversation between a bartender, Elaine, and another bartender, Jason, in which they indicated that Farrington had come into the establishment and named the names of people who were dealing drugs. They went on to say that Farrington named specific individuals "Moo-Moo," "Red" and "Diamond" as drug dealers. Farrington stated that there is a black male known as "Red" who hangs-out in the bar five out of seven days a week and she believed he was selling crack cocaine. Suspect Ray Charles was observed exiting the kitchen on numerous occasions. Agent Hurlburt asked suspect Ray Charles if he was an employee and he indicated that he cleaned up or did whatever Ray wanted him to do on the premises. On July 10, 2001, the agent made three separate drug purchases from suspect Ray Charles. The suspected crack cocaine was turned over to Agent Dotson who subsequently conducted a field test. It rendered a positive result for the presence of cocaine. The three separate samples of suspected crack cocaine purchased from suspect Ray Charles by Agent Hurlburt were subsequently tested positive for cocaine. Agent Hurlburt established that after meeting with support personnel the packages in which the suspect crack cocaine was stored in were marked with the date of the purchase, Agent Hurlburt's initials, which purchase it was for that day, and the suspect's name. On July 11, 2001, Agent Hurlburt purchased a $100 piece of crack cocaine from suspect Ray Charles. Ray Charles is the same individual as Ray Charles Mitchell, who is a felon on probation for possession of cocaine at the time of the formal hearing in this matter. Agent Hurlburt made a second purchase from Ray Charles on July 11, 2001. The suspected crack cocaine purchased from suspect Ray Charles on July 11 by Agent Hurlburt was subsequently tested positive by Poon of the FDLE. Agent Hurlburt also purchased crack cocaine on July 11 from the suspect known as "Red." The suspected crack cocaine purchased from suspect "Red" by Agent Hurlburt subsequently tested positive after analysis by Poon. On July 13, 2001, Agent Hurlburt purchased a $20 piece of crack cocaine from suspect "Red." On July 13, 2001, Agent Hurlburt made a second purchase of suspected crack cocaine from "Red." The suspected crack cocaine subsequently tested positive for cocaine. On July 17, 2001, Agent Hurlburt made two purchases of suspected crack cocaine from suspect "Red" and both subsequently tested positive for presence of cocaine. On July 20, 2001, Agent Hurlburt returned to the premises and purchased suspected crack cocaine from suspect "Red." Poon tested the crack cocaine purchased from "Red" on July 20 and it tested positive for cocaine. On July 24, Agent Hurlburt purchased suspected crack cocaine from suspect "Red" on two occasions and turned over the drugs to support personnel. The drugs purchased by Agent Hurlburt on July 24, 2001, subsequently tested positive for the presence of cocaine. Agent Dotson field-tested the drugs purchased from suspect "Red" on July 24 with a positive result for cocaine. During some of the drug purchases from suspect "Red" on July 24, 2001, Cascella was in the bar area. On July 25, Agent Hurlburt purchased suspected crack cocaine from a suspect known only as Rudy and turned the substances over to Agent Dotson, who subsequently field-tested it with a positive result. The drugs purchased by Agent Hurlburt on July 25, 2001, were subsequently tested positive for the presence of cocaine. Cascella was in the bar area on July 25, 2001. On July 27, 2001, Agent Hurlburt purchased two pieces of suspected crack cocaine. The drugs purchased by Agent Hurlburt were subsequently tested by Poon with the FDLE and tested positive for cocaine. On July 31, 2001, Agent Hurlburt overheard a conversation between two suspected narcotic dealers talking about a sale of crack cocaine to an individual bartender named Jason. On July 31, 2001, Agent Hurlburt purchased suspected crack cocaine from an individual on the licensed premises. The drugs purchased subsequently tested positive for the presence of cocaine. Agent Scott Behringer of the Brevard County Sheriff's Office (BCSO), Special Investigation Unit, secured the suspected crack cocaine purchased by Agent Hurlburt on July 31, 2001. Agent Behringer has been employed by the BCSO for approximately 13 years. He has been involved in several hundred investigations and has specialized training in narcotic identification schools including DEA basic and DEA advanced. Agent Behringer observed drug transactions occurring at the licensed premises. Agent Behringer subsequently tested the narcotics purchased by Agent Hurlburt on July 31, 2002, and the field test results were positive. Agent Behringer never had an occasion where he had field-tested a substance and was later disproved by drug analysis. This is despite having conducted approximately 1,000 field tests. On August 2, 2001, Agent Hurlburt and Agent Driggers were sitting at the bar at the licensed premises when they observed suspect "Red" sitting in a booth in the premises as well. Visible from the bar, placed on the suspect's calf was a stack of crack cocaine. Agent Hurlburt proceeded to measure the distance from the bar to a spot parallel to the suspect in order to determine the distance. The distance was estimated to be 155 inches. On August 2, 2001, Agent Hurlburt purchased $100 worth of crack cocaine from suspect "Red." On August 3, Agent Hurlburt purchased $50 worth of crack cocaine from suspect Rudy. The contraband was turned over to support personnel. Agent Behringer secured evidence on August 2, 2001; he field-tested the substance and it was positive for cocaine. It had the appearance of crack cocaine as well. All the evidence that Agent Behringer maintained was kept in a security area until being forwarded to Agent Dotson. Agent Behringer never had drugs in his possession that had been tampered with in any way. Agent Behringer saw Cascella observing drug sales during the relevant time-period late July and early August 2001. Agent Driggers indicated that even though she didn't have a great deal of training, she was able to observe numerous individuals making hand drug transactions in the licensed premises. The crack cocaine purchased on August 2 by Agent Hurlburt from suspect "Red" was tested by Poon and the result was positive for the presence of cocaine. Agent Driggers purchased suspected crack cocaine from suspect "Red" on August 8. The suspected crack cocaine purchased by Agent Driggers on July 31 and August 8, 2001, from suspect "Red" subsequently tested positive for cocaine. On August 10, 2001, Agent Hurlburt entered the establishment, made a purchase and departed the premises. He then went to the staging area where they were subsequently transported and tested by Kimberly Hampton-Sheley of the FDLE crime lab with a positive result for cocaine. FDLE Analyst Kimberly Hampton-Sheley indicated that the two tests that she ran on the substance resulted in a positive reading for cocaine. Further, the accuracy of combined testing in terms of chemistry is 100 percent accurate. Agent Driggers purchased $20 worth of suspected crack cocaine from an employee of the licensed premises, Jason, August 10, 2001. The drugs subsequently tested positive for the presence of cocaine. Shortly thereafter, Agents from the combined task force from the DABT and BCSO reentered the licensed premises in order to arrest those engaging in illegal activity. Agent Dotson searched bartender, Jason Gilroy, on August 10, 2001, at the time of the raid on the licensed premises. Agent Dotson discovered a small napkin with some cocaine in one of his pants' pockets. The drugs discovered on employee Gilroy on August 10, 2001, subsequently tested positive for the presence of cocaine. Another Manos employee, a bartender named Mike, was apprehended with a crack pipe in his manual possession on the night of the raid. Evidence Agents Aliberti and Waters, DABT, secured in this investigation was stored in the trunk of their state vehicle or at the Florida Highway Patrol unit where they have an evidence storage locker until it is forwarded to the BCSO or whatever agency is going to be responsible for the evidence. Agent Waters indicated that at the location of the Florida Highway Patrol is a locker which has their own personal key and they are the only ones with that key. Both Waters and Aliberti indicated that they have never had any evidence that was in their possession tampered with in this case or any other to their knowledge. Agent Aliberti was involved in transporting drugs from the BCSO to the FDLE. Agent Dotson testified that he secured the evidence in an evidence bag. He would initial them and they would be put into an evidence locker in one of their precincts to be forwarded to the Evidence Unit. Agent Dotson has never had any drugs tampered with in any of his cases, including the case at hand. The evidence is clear and convincing that on numerous occasions between June and August 2001, on the licensed premises, agents and employees, while in the scope of their employment, sold or permitted to be sold controlled substances, to wit: cocaine, in violation of Florida law. The evidence is clear and convincing that on numerous occasions between June and August 2001, the licensee, Raymond J. Cascella, permitted others, while on the licensed premises, to violate the laws of this state and of this United States by selling controlled substances, to wit: cocaine. The evidence is clear and convincing that the licensed premises was used for the illegal keeping, selling and delivery of controlled substances and is a public nuisance. The evidence is clear and convincing that the licensee, Raymond J. Cascella, maintained the licensed premises for the illegal keeping, selling and delivery of controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Section 893.13(1)(a), Florida Statutes, as alleged in Counts 1-18 of the Second Amended Administrative Complaint, and imposing a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 893.13(7)(a)5, Florida Statutes, as alleged in Count 19 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 823.10, Florida Statutes, as alleged in Count 20 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of an administrative fine in the amount of $250. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of May, 2002. COPIES FURNISHED: Raymond Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Richard J. Dempsey Qualified Representative 223 Columbia Drive, No. 221 Cape Canaveral, Florida 32920 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2018.
The Issue Whether Respondent's alcoholic beverage license number 60-05660, series 2COP, should be disciplined based on the alleged violations of the alcoholic beverage laws set forth in the Notice to Show Cause dated August 14, 1998.
Findings Of Fact Respondent Jimmy Karl Boyd is the holder of alcoholic beverage license number 60-05660, series 2COP, for a licensed premises known as Get A Way Bar & Lounge, located at 2517 North Military Trail, West Palm Beach, Palm Beach County, Florida. At all times pertinent to this proceeding, Ellie Reardon was the girlfriend of the Respondent and the manager of the premises. Shannon Dowding, who is Ms. Reardon's daughter, and Kathy Harris were also bartenders at the establishment. Petitioner initiated an investigation of the licensed premises based on a complaint from Jim Falsia, a deputy with the Palm Beach Sheriff's Office, that persons were dealing in stolen property and drugs on the premises.2 Kent Stanton and Jennifer DeGidio, special agents employed by Petitioner, conducted the undercover investigation of Respondent's business in cooperation with the Palm Beach County Sheriff's Office. Before they entered the subject premises for the first time, Agents Stanton and DeGidio were given certain information, including identifying information pertaining to two suspected drug dealers named William Howell and Scott Lyons. As part of their investigation, Agents Stanton and DeGidio entered the subject premises during late afternoon or early evening on the following dates: June 18, 19, 23, and 26; July 1, 15, 21, 23, 29, and 31; and August 4, 6, and 12, 1998. After each of these visits, the undercover agents returned to their office where they recorded their recollection of what had transpired. At all times, the two agents entered the premises together. One or the other agent always wore a listening device that was monitored by backup law enforcement officers. Agents Stanton and DeGidio purchased quantities of cocaine inside the subject premises on the following dates: June 19; July 1, 15, 21, 23, 29, and 31; and August 6 and 12, 1998. THE PREMISES The premises are located in a commercial area that backs up to an area of low income housing. The premises consist of a parking area and a rectangular shaped building with approximately 2,000 square feet. The building has three doors. There is no lighting other than that provided by the open doors. The evidence established that there was adequate light in the premises to observe the events pertinent to this proceeding. There is a long bar with a mirror on the wall that the patrons face. The bartender on duty is usually stationed behind the bar in the vicinity of the cash register, which is behind the bar toward the eastern end of the bar. There is a telephone at the eastern end of the bar that patrons are free to use. The door at the westerly end of the premises is off a hallway in the vicinity of the men's room. This hallway is not visible from where the bartender is usually stationed and is not otherwise monitored. There are four televisions that could be set on different stations. One or more television was usually on. There is a juke box. At the times pertinent to this proceeding, the bar was cooled by two four-foot fans and an 18-inch fan because the central air conditioning system was broken. There were coolers behind the bar. Although the premises was noisy, the evidence established that the noise did not prevent ordinary conversation. JUNE 18, 1998 The first time the undercover agents entered the subject premises was Thursday, June 18, 1998. They observed Respondent, Ellie Reardon, and two patrons drinking beer and engaging in conversation. The agents only engaged in small talk on that occasion. No drugs were purchased by the undercover agents on this date. JUNE 19, 1998 On Friday, June 19, 1998, the two undercover agents entered the premises and made contact with Respondent, Ms. Reardon, and two patrons known to the agents only as "Rick" and "Gabe." Agent DeGidio asked Rick if he knew where she could "get something to party with." Rick replied, grass (slang for marijuana) or powder (slang for cocaine). When Agent DeGidio responded powder, Rick introduced her to another patron, William Howell, and requested Howell to provide cocaine to Agent DeGidio. Howell asked Agent DeGidio what she wanted, and Agent DeGidio replied an "eight bail," which is slang for 3.5 grams of cocaine. No employee of the Respondent was in a position to hear those conversations. After Howell related the price, Agent DeGidio returned to the bar area to Agent Stanton and asked him for money. Agent Stanton openly handed Agent DeGidio approximately $160.00. Ms. Reardon was in a position to observe this transfer of money. Agent DeGidio returned to Howell and gave him $150.00. Agent DeGidio and Howell returned to the bar area and Howell picked up the phone from Ms. Reardon. Howell placed a brief telephone call, and within a short time, Ms. Reardon picked up the ringing telephone, and gave it to Howell. Howell then departed the premises and returned shortly thereafter, whereupon he handed Agent DeGidio a small plastic bag containing suspected cocaine. Howell did not attempt to conceal the nature of the transaction from Ms. Reardon, who was in position to observe the transfer. The substance purchased on this occasion was laboratory analyzed and found to contain cocaine. JUNE 23, 1998 On June 23, 1998, the undercover agents returned to the licensed premises. On this date, Agent DeGidio approached employee Ms. Reardon and openly asked her if Howell was around and whether he could "get us some stuff." Ms. Reardon began looking for Howell, but did not take any other action regarding Agent DeGidio's obvious drug request. When Howell arrived at the premises shortly thereafter, he approached Agents DeGidio and Stanton. Howell told Agent DeGidio that Ellie (Ms. Reardon) had told him that she (DeGidio) wanted some, meaning drugs. When Agent DeGidio told Howell that she was looking for a gram of cocaine, Howell said he would try, made a phone call, and thereafter departed the premises. When Howell returned, he told the agents that his cocaine supplier had not come yet. No drugs were purchased by the undercover agents on this date. JUNE 26, 1998 On June 26, 1998, the undercover agents returned to the licensed premises. On this date, Agent DeGidio made contact with Howell regarding the purchase of cocaine. Howell placed a phone call at the bar phone, and received a return call a few minutes later. Howell informed Agent DeGidio that he could sell her cocaine as soon as his supplier arrived. When Howell returned and advised that his cocaine supplier had not arrived, the agents departed. The evidence failed to establish that anyone employed by Respondent heard this conversation. No drugs were purchased by the undercover agents on this date. JULY 1, 1998 On July 1, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio made contact with Howell regarding the purchase of cocaine. Their conversation occurred at the bar less than two feet from Shannon Dowding, who was tending the bar and in a position to hear the conversation. Ms. Dowding took no action in response to this conversation. Howell placed a call using the telephone at the bar and received a return call seconds later. Agent DeGidio approached Agent Stanton, who openly handed her $60.00. Agent DeGidio then handed the money to Howell. This exchange occurred in the middle of the bar in plain view of Ms. Dowding, but no reasonable inquiry or action was taken. Howell later approached an unidentified patron and called Agent DeGidio to where he was standing in the hallway in the vicinity of the men's room. This area was not monitored or supervised by the Respondent or his employees and was not visible from the bar counter where the Respondent's bartender was stationed. When Agent DeGidio arrived, Howell handed her a small plastic bag containing cocaine. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 15, 1998 On July 15, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, the agents met with Kathy Harris, who was working as the bartender at the premises. Ms. Harris answered the telephone at the bar and the caller asked for Howell, but Howell was not on the premises. Agent Stanton asked Ms. Harris if she knew whether Howell was coming to the premises that day. When Ms. Harris replied that she did not know, Agent DeGidio asked Ms. Harris if she knew someone who could get the agents "something to party with." Ms. Harris told the agents that Howell's "partner" was present. Ms. Harris then brought the partner into the premises and introduced him to the agents as "Scott," later identified as Scott Lyons. Agent DeGidio then loudly asked Lyons, in the presence of Ms. Harris, whether he could provide the agents "something to party with." Agent DeGidio and Lyons then discussed availability and price of the cocaine in the presence of Ms. Harris. When Agent Stanton expressed concern over giving Lyons money before receiving cocaine, Ms. Harris stated that Lyons could be trusted. Agent Stanton then handed Lyons $60.00 and Lyons departed the premises. Soon thereafter, Lyons returned to the premises and approached Agent Stanton, who was sitting at the bar two feet from Ms. Harris. Lyons handed Agent Stanton, at bar level, a small plastic bag with a white powdery substance. At no time during this transaction did Ms. Harris, or any other employee, take any action to stop the drug transaction or even inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 21, 1998 On July 21, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, the agents sat at the bar, which was tended by Ms. Dowding. Agent DeGidio made contact with Lyons, who was standing at the bar in front of Ms. Dowding, and asked if he could "get some stuff." Lyons said that he could, made another call using the bar phone, and departed the premises. Lyons and Howell later entered the premises together. Lyons approached Agent Stanton, and they discussed a cocaine transaction. Agent Stanton openly handed Lyons $60.00. These conversations were at normal speaking volumes and could have been heard by anybody at the bar including Ms. Dowding. After departing and then returning to the premises, Lyons approached Agent Stanton, who was sitting at the bar three feet from Ms. Dowding and four feet from Ms. Reardon, who had entered the premises. Lyons handed Agent Stanton, at bar level, two small clear plastic bags containing a white powdery substance. Agent Stanton placed the small clear bags in the palm of his hand, and then placed his hand at chest level and looked at the bags of cocaine for a few seconds. Anybody at the bar was in a position to see the bags in Agent Stanton's hand including Ms. Dowding and Ms. Reardon. At no time did Ms. Dowding or Ms. Reardon take any action to stop the drug transaction or inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 23, 1998 On July 23, 1998, Agents Stanton and DeGidio returned to the licensed premises. Agent Stanton went to the hallway by the men's room and met with Lyons regarding the purchase of cocaine. Agent Stanton handed Lyons $60.00. Approximately five minutes later, Lyons approached Agent Stanton at the bar and handed him at bar level two small clear plastic bags containing a white powdery substance. Agent Stanton held the cocaine in his palm and looked at it before placing it into his pocket. The cocaine transfer could have been viewed by anyone sitting at the bar, including a ten-year old boy, who was sitting next to Agent Stanton, and Ms. Reardon. At no time did Ms. Reardon or any other employee take any action to stop the drug transaction or inquire about it. The substance purchased on this occasion was laboratory analyzed and found to contain cocaine. JULY 29, 1998 On July 29, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio met with Howell regarding the purchase of cocaine and asked him, in the presence of Ms.Dowding, for a gram. Howell walked to the end of the bar where Ms. Dowding handed him the telephone. Howell placed a call. When the phone rang moments later, Ms. Dowding answered and handed the telephone to Howell. After a short conversation, Howell told Agent DeGidio that she would have to wait. Ms. Dowding was sitting right next to Howell during this exchange. Shortly thereafter Ms. Dowding departed the premises and was replaced by Ms. Reardon, who had arrived with a child approximately ten years old. Agent DeGidio looked out the back door and saw Howell and an unidentified male in an automobile engaged in what appeared to be a hand-to-hand drug transaction. Howell then reentered the bar and approached Agent DeGidio. Agent DeGidio told Agent Stanton that Howell needed the money, and Agent Stanton gave Howell $60.00 in the presence of Ms. Reardon. Howell briefly walked out the back door, reentered and handed Agent DeGidio two small clear plastic bags containing a white powdery substance. The transfer occurred at the back of the bar. At no time did Ms. Dowding or Ms. Reardon take any action to stop the drug transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 31, 1998 On July 31, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent Stanton met with Lyons regarding the purchase of cocaine. Later, Lyons signaled Agent Stanton to walk to the hall by the men's room. Lyons stated that he needed the money, and Agent Stanton gave Lyons $60.00. Approximately ten minutes later, Lyons again signaled Agent Stanton to go to the back of the bar. There Lyons handed Agent Stanton two small clear plastic bags containing a white powdery substance. The evidence failed to establish that any employee of the Respondent was in a position to see these events or hear these conversations. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. AUGUST 4, 1998 On August 4, 1998, the undercover agents returned to the premises, but they did not purchase any drugs. AUGUST 6, 1998 On August 6, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio met with Howell regarding the purchase of cocaine. Agent DeGidio obtained $60.00 from Agent Stanton and handed it to Howell. Approximately ten minutes later, Howell signaled Agent DeGidio to go to the back of the bar in front of the men's restroom. Once there Howell handed Agent DeGidio two small clear plastic bags containing a white powdery substance. Ms. Reardon was in a position to observe Agent Stanton give Agent DeGidio the money that she subsequently gave to Howell. Ms. Reardon was not in a position to see or hear the remaining events. At no time did any employee take any action to stop the drug transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to be cocaine. AUGUST 12, 1998 On August 12, 1998, Agents Stanton and Agent DeGidio returned to the licensed premises. On this date, Agent DeGidio again met with Howell regarding the purchase of cocaine. Howell was standing in the back of the bar with employee Ms. Reardon, Respondent, and an unknown patron. In the presence of these people, Agent DeGidio asked Howell if he could "hook her up." This question should have been construed by all who heard it as an inquiry pertaining to drugs. Howell replied that he would attempt to locate some cocaine for Agent DeGidio. Shortly thereafter, Howell met with Agent DeGidio and told Agent DeGidio that his usual source wasn't home, but he would see if he could get it from someone else. After discussing price with Howell, Agent DeGidio approached Agent Stanton and obtained $60.00 from him. Agent Stanton counted out the money in front of Ms. Reardon and Ms. Dowding and handed the money to Agent DeGidio. Agent DeGidio then gave the $60.00 to Howell. Shortly thereafter, Howell motioned for Agent DeGidio to come to the area of the men's room, where he handed Agent DeGidio $10.003 and two paper packets containing a white powdery substance. At no time did any of the employees attempt to stop the transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to be cocaine. Although the consummation of the foregoing transactions was frequently in the area of the men's room, any reasonable employee knew or should have known that the undercover agents were purchasing drugs from Howell and Lyons. With the exception of the transaction on July 31, 1998, at least a part of each transaction was conducted in an open manner near the bar, where the transaction could easily be viewed by the bartender on duty. Ellie Reardon, Shannon Dowding, and Kathy Harris were aware of, or should have been aware of, the drug activity. Respondent's employees openly condoned it, to the point of actually directing the agents to the sellers and vouching for the reliability of Lyons. The testimony of the Respondent and his employees that they had no idea drugs were being bought and sold in the establishment is rejected because that testimony is contrary to the clear and convincing evidence of the two special agents and to the multiple bags of cocaine that were produced as evidence. NO RESPONSIBLE VENDOR TRAINING Respondent took no action to prevent drug activity on the premises. Respondent provided no Responsible Vendor Training pursuant to Section 561.701, Florida Statutes.4 The Respondent never informed his employees that drug use and sales were not to be tolerated on the licensed premises, nor did he instruct them what they should do if they observed drugs being trafficked on the premises. Ms. Reardon, Ms. Dowding, and Ms. Harris testified that they had been given appropriate vendor training by the Respondent. This testimony is rejected as being contrary to the Respondent's testimony.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that Respondent's alcoholic beverage license number 60-05660, series 2COP, be revoked. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998.
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
The Issue Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Jeffrey Jones reported for work while under the influence of cocaine on or about September 27, 1995. If so, whether Petitioner Jones should be terminated as an employee of the Seminole County School Board. Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Sylvia Foster reported for work while under the influence of cocaine on or about January 8, 1996. If so, whether Petitioner Foster should be terminated as an employee of the Seminole County School Board.
Findings Of Fact Facts Common to Both Respondents Petitioner, Seminole County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate control and supervise all public schools and personnel in the Seminole County School District. Paul J. Hagerty is the Superintendent of Public Schools for Seminole County, Florida. Respondent, Jeffrey Jones, at all relevant times, was an employee in the Transportation Department of the Seminole County School District, including September 27, 1995. His position is bus driver/courier. Respondent, Sylvia Foster, at all relevant times, was an employee in the Transportation Department of the Seminole County School Board, including January 8, 1996. Her position is bus driver. Respondents, Jeffrey Jones and Sylvia Foster, are members of the bargaining unit, the Bus Driver Association, who entered into a collective bargaining agreement with their employer, the Seminole County School Board. Article XXXIII of the collective bargaining agreement provides that Seminole County School Board will implement and abide by all aspects of the Federal Omnibus Transportation and Employee Testing Act. The Federal Omnibus Transportation and Employee Testing Act was applicable to bargaining unit members who hold a Commercial Driver's License (hereinafter CDL). Corning MetPath has a contract with Seminole County School Board to conduct urine sampling. In addition to taking urine samples from school bus drivers, Corning MetPath collects hundreds of other types of sampling at its facility in Longwood, Florida, for other clients. Prior and following entering into a contract with Corning MetPath, the Seminole County School Board did not provide blind test samples for quality control before contracting with Corning MetPath to perform federally required drug testing. John Richert, the director of Petitioner's "Anti-Drug and Alcohol Program", initiated the sampling designated by receipt of a list of persons who were to take the sample for the quarter. Once every three months, John Richert sent a packet of materials containing names of individuals who were to submit to urine testing by the week to Jean Crampton, Director of Transportation. Upon receipt of that list, Jean Crampton, who supervised the bus drivers, selected each person to be tested that week and provided them with a time and date to report for testing. That information was not provided by John Richert, but was left up to Mrs. Crampton. The Director of Transportation was responsible for passing on the list of sample providers, and ultimately for recommending termination of an employee whose test result was verified as positive. Anita Callahan operates the Corning MetPath facility in Longwood, Florida, and is an employee of Corning Clinical Laboratories. During most times of operation, Anita Callahan operates the collection facility by herself, without assistance. Each month, this facility conducts or takes between 500 and 760 samples. Prior to the relevant time, Anita Callahan received training in urine collection from her employer, and she relied on two Corning MetPath office manuals provided for use by personnel for reference. Neither manual contained copies of the Federal Regulations that apply to the specific procedures required under the federal testing act. The regulations call for the collection of urine samples, as follows: An employee is to report to the testing facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The employee must be identified to the technician by photo identification. The employee selects a sealed box containing a urine sample collection cup and two sample bottles from a large box. The employee is directed to wash his/her hands. The employee is directed to a bathroom to give a urine sample. The collection room is to have no other water source operating and the toilet is to contain a bluing agent. The sample is brought to the technician and the temperature is checked. To initiate the chain of custody, a portion of the urine sample is then poured into each of the collection bottles. The employee then dates and initials the seals and places them on each sample bottle. The technician then places the specimen bottles in a separate plastic bags and places them into the box from which they were originally packed, along with the original and three copies of the completed and signed Federal Drug Testing and Control Form. The box, which becomes the shipping box to transmit specimens to the laboratory in New Jersey, is sealed. The specimens are sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. Anita Callahan did not always strictly follow this procedure because she did not want to be touching the hands, paper or pen of people who had not washed their hands after obtaining the sample. Anita Callahan did not wear gloves when collecting and handling samples. In other respects the practices and procedures used at the Corning MetPath facility varied from the procedures its personnel were to follow: At times, there was other water sources in the collection area and collection closet, including running water in the bathroom sink and a water fountain in the hall. The sample containers that were used were sometimes unsealed and opened before the sample providers arrived. At times, the toilet in the collection closet did not contain a bluing agent. The sample containers were, at times, themselves visibly contaminated. Some drivers were not given a choice as to the sample container that was to be used. At times, if she was busy, Anita Callahan directed drivers to leave samples on the counter to be split and sealed outside the presence of the driver, at a later time. More than one person providing a sample was allowed in the sampling area during collection. Unless sample containers are clean and then sealed, all hands are washed and surfaces are kept clean, contamination is possible. Unless the sample containers are split in front of the sample provider, signed by both the technician and the provider, and sealed in front of the provider, a proper chain of custody has not been initiated and the possibility of mislabeling exists. If a collection site does not strictly follow those procedures set out in the Federal Regulations as to collection, chain of custody and testing, the test result is not scientifically reliable. Facts Relating to Case No. 95-5532 Respondent, Jeffrey Jones, was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida on September 27, 1995, prior to beginning work, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Jeffrey Jones was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form.) The Respondent was identified. The Respondent selected a box containing the urine sample collection cup and the two samples bottles from a box. The Respondent washed his hands. The Respondent went to the bathroom as directed and returned with a urine sample. The temperature of the samples was checked. A portion of the urine sample was poured into each of the collection bottles. The Respondent then dated and initialed the seals which were to be placed on the specimen bottles, referred to as split samples. The specimen bottles were then placed in separate plastic bags and placed into the box from which they were originally packed along with the original and three copies of the Federal Drug Testing and Control Form. The box, which becomes the shipping box in which the specimens are shipped to the laboratory in New Jersey, was sealed. The Respondent then signed the copy of the Federal Drug Testing and Control Form which acknowledges that the urine sample is his urine sample. j. The specimens were then sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. At the time Jeffrey Jones was obtaining his urine sample he dropped his key chain in the toilet and then retrieved it. He did not inform the technician of this event. The first sample bottle remained sealed until it was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Shilpa Joshi. The urine sample of Jeffrey Jones (second bottle) was sealed upon collection at the Corning Clinical facility at Longwood, Florida and remained sealed until it was opened for confirmation testing at LabOne in Overland Park, Kansas. Laboratory analysis of urine for the presence of drugs/controlled substance, as prescribed by 49 C.F.R. Subsection 40.29 is to be done in two phases. The initial test (screening) shall employ immunoassay and the second phase (confirmation testing) shall employ gas chromatography/mass spectrometry (GC/MS). The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Jeffrey Jones was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The GC/MS process for analysis of urine for the presence of controlled substances is generally accepted in the scientific community. Laboratory analysis of the urine sample submitted by Jeffrey Jones, by Corning Clinical Laboratories, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. The second sample was then sent to LabOne for confirmation testing. Laboratory analysis of the urine sample submitted by Jeffrey Jones to LabOne of Overland Park, Kansas, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. There is no substance that will cause a person's urine to test positive for benzoylecgonine, a metabolite of cocaine, other than cocaine. Both Corning Clinical Laboratories and LabOne were properly certified as required by 49 C.F.R. Subsection 40.39. Murray Lappe, M. D., was the designated medical review officer (MRO) for the drug testing of Jeffrey Jones. The MRO did not contact Jeffrey Jones or otherwise communicate with Mr. Jones after the putative positive test result. Jean Crampton, Director of Transportation was informed by telephone from Corning Labs that Jeffrey Jones had tested positive for cocaine in his urine. Neither Jean Crampton, nor anyone else in the School Board, contacted Respondent Jones about his result to inquire into possible alternative medical explanations for the result. Jean Crampton believed that alternate medical explanations was the province of the MRO and should have already happened. False positive test results can occur for cocaine either in certain prescription medications, creams, and certain consumer goods, such as teas and drinks, although such teas and drinks have been banned for sale in the U. S. Respondent Jones, prior to and at the time of taking the urine screening, was a care-giver for his two elderly parents, both of whom lived with him, were bedridden, and required extensive medications. There were times that Respondent Jones' father provided headache and toothache medicine to him. The supervisors of Jeffrey Jones were trained to recognize signs of drug or alcohol abuse. The supervisors of Jones, who saw him daily, saw no evidence of drug or substance abuse in his work performance. Facts Relating to Case No. 96-0506 Respondent Sylvia Foster was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida, after her first run, on January 8, 1996, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Sylvia Foster was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The Respondent was identified by her School Board Badge. The technician selected a box containing the urine sample collection cup and the two sample bottles from a box and gave it to the Respondent. The Respondent washed her hands. The Respondent went to the bathroom, as directed, and returned with an empty urine sample. She was not able to urinate. The Respondent drank some water and returned to the bathroom. She returned with a urine sample. The technician was across the hall with another person on whom she was conducting a diabetic time test. Respondent was directed to leave her urine sample on the counter and leave; Respondent had previously signed and initialed the documents and labels. Respondent left the sample and departed. The technician later split the sample, sealed them and placed them into the box with the documentation for shipping to the laboratory in New Jersey. The specimens were then sent by courier to the Corning lab in Teterboro, New Jersey for analysis. The urine sample shipped under the name of Sylvia Foster from the Corning Clinical facility at Longwood, Florida, remained sealed until the first sample bottle was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Isidoro Lomotan. The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Sylvia Foster was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The laboratory analysis of the urine sample submitted under the name of Sylvia Foster, by Corning MetPath, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. Sylvia Foster, on January 9, 1996, the day after submitting her urine sample at the Corning MetPath facility, complained to her supervisors that she was taking a lot of different prescription medications and was worried about the result. Murray Lappe, M. D. was the designated MRO for the drug testing of Sylvia Foster. Someone who identified himself as working with the MRO contacted Sylvia Foster, by telephone, after the putative positive test result. The person on the telephone informed Sylvia Foster that she had a drug problem and needed help. The person on the telephone did not make any inquiry into Respondent Foster's medical condition or history, nor that she would be able to produce information and medical records to substantiate an alternate medical explanation. Jean Crampton, Director of Transportation, was informed by telephone from Corning MetPath that Sylvia Foster had tested positive for cocaine in her urine. Neither Mrs. Crampton, nor anyone else in the School Board, contacted Respondent Foster about possible alternative medical explanations for the result. The supervisors of Sylvia Foster, who saw her daily, did not see any evidence of drug or substance abuse in her work performance. Respondent Foster's testimony as to sequence of events is credible.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED tht the School Board dismiss the Superintendent's request to terminate the employment of Jeffrey Jones and Sylvia Foster, and the Respondents should be reinstated to their former positions. DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 29th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-5532 and 96-0506 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6 (except as to the year), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 (as to Jeffrey Jones only), 24, 25, and 27. Rejected as against the greater weight of the evidence: paragraphs 23 and 26. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4 (except as to the year), 5, 6, 7, 8, 9, 10, 11, 12, 16, 17 (except for the year), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 (in part), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 (in part), 55 (in part), 56, 53 [No. 3], 54 [No. 2], 55 [No. 2], 56 [No. 2]. Rejected as irrelevant and immaterial: paragraphs 13, 14, 15, 45. Rejected as against the greater weight of the evidence: paragraphs 29 (in part), 54 (in part), 55 (in part). COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Lake Mary, Florida 32773 Thomas F. Egan, Esquire 56 East Pine Street, Suite 300 Orlando, Florida 32801 Dr. Paul Hagerty, Superintendent 1211 South Mellonville Sanford, Florida 32771 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
