The Issue Whether the School Board should permit Respondent to take sick leave for the period commencing December 18, 2013, through the time it takes for evaluation by a Substance Abuse Professional and any necessary rehabilitation or until Respondent’s sick leave is exhausted, whichever occurs first.
Findings Of Fact Ms. Terry Green Ms. Green has been employed by ECSD for at least five years. (See Hr’g Tr. 102, where the testimony indicates she was hired in 2008). At the time of the final hearing, Ms. Green was on leave without pay from her position as a school bus driver, her employment status with ECSD since December 18, 2013. As the driver of an ECSD school bus entrusted with the safety of the children she transports on school days, Ms. Green is required to meet certain criteria by the Department of Transportation. For example, she must have an annual medical examination. Ms. Green must also inform ECSD and the State of Florida of any pharmaceutical substances medically prescribed for her that she takes on a daily basis. Among the pharmaceutical substances on a list in her patient profile with A&E Pharmacy in Pensacola is “Hydrocod/Apap Tab10-325MG.” Ms. Green referred to the substance at hearing by its proprietary name: “Lortab.” Ms. Green does not take Lortab on a daily basis. She listed it as one of the pharmaceutical substances that are prescribed for her when she was hired by ECSD because she takes Lortab occasionally. Lortab Lortab is the proprietary name for a tablet prescribed for pain management. Its active ingredients are “acetaminophen” (commonly known as Tylenol) and “hydrocodone.” Ms. Green offered an exhibit (Ex. R-2, attached to the Transcript of the final hearing), which shows relationships between hydrocodone and codeine and morphine. It cannot be determined on the state of this record whether Lortab metabolizes in the human body into codeine and morphine, but the exhibit offered by Ms. Green raises that possibility. Ms. Green’s Illness Ms. Green was ill for a period of about three weeks that commenced around November 18, 2013, and stretched into the early part of the week of December 9, 2013. Her recovery from the illness lasted until at least the end of January 2014. For much of the time after November 25, 2013, during her illness and recovery, Ms. Green was bed-ridden. The severity of her illness was unusual. As Angela Green, her daughter, testified, “my mom has never been like that.” Hr’g Tr. 83. Running a fever as high as 103 degrees, Ms. Green showed up for work and drove her school bus from Monday, November 18 through Friday, November 22, 2013. Her illness continued through the weekend of Saturday, November 23, 2013. On Sunday, November 24, 2013, Ms. Green’s mother tried to convince her to go to an emergency room (“ER”). She had seen Ms. Green in the morning and observed, “she was a pretty sick gal.” Hr’g Tr. 75. The record is silent as to whether Ms. Green went to the ER, but it seems likely that she did not. November 25, 2013 Sometime during the early morning hours of Monday, November 25, 2013, a school day, prior to reporting for work, Ms. Green took a Lortab. Ms. Green went to work despite her illness and despite having taken the Lortab. Her determination to report to work and perform her duties is a characteristic ingrained in her from early childhood. As her mother testified, she required Ms. Green to attend school as a child unless she was “pretty much . . . on [her] death bed.” See Hr’g Tr. 77. While Ms. Green was driving the school bus that morning, a school bus assistant (another ECSD employee assigned to the bus) became concerned about Ms. Green’s condition. The concern was reported to the ECSD’s Office of the Director of Transportation. A replacement driver was sent to the bus, and Ms. Green returned to the office. A form to be used to help determine reasonable suspicion for drug/alcohol testing, entitled “Reasonable Suspicion Drug/Alcohol Testing Checklist for Supervisors” was filled out by observers to determine whether Ms. Green should be subjected to drug or alcohol testing. See Pet’r’s Ex. H. The form shows Ms. Green was observed at 9:05 a.m. in the office. Her speech was slurred, and the checklist indicates that she was mumbling. She stumbled, appeared dazed, and had unkempt hair or clothing. Four boxes were checked on the form under the section called “Today’s Job Performance”: “Mistakes due to poor judgment,” “Low productivity/Taking longer to complete tasks,” “Complaints from others about behavior/attitude/driving,” and “Late to work.” Under “Interpersonal Behavior,” two boxes were checked: “Overly sensitive to real/imagined criticism,” and “Major change in personality.” Typed onto the form with regard to the source reporting any drug/alcohol use was: “Bus assistant reported initially then corroborated in the office with two route managers who see her frequently.” The observations led to the conclusion, “The combination of factors indicates she is under the influence.” The “Test Requested” section of the form had a box checked for “Drug and Alcohol.” The form was signed by two observing supervisor/officials and dated November 25, 2013. The route managers, who observed Ms. Green, reported to the Director of Transportation that there was a reasonable suspicion that Ms. Green was under the influence of drugs or alcohol.2/ The Reasonable Suspicion Drug/Alcohol Test Ms. Green submitted to the drug/alcohol test the same day. The test results are reported on a “Federal Drug Testing Custody and Control Form.” See Pet’r’s Ex. F, at 6. Dated November 25, 2013, it shows ECSD as the “employer,” Dr. Natalie Hartenbaum of FirstLab as the medical review officer (“MRO”), and Ms. Green as the donor. Ms. Green signed a certification on the form that she submitted an unadulterated urine specimen to the laboratory’s collector and that the information affixed on the specimen bottle was correct. The report shows the specimen was verified as positive for two opiates: codeine and morphine. The Timeline The third page in Petitioner’s Exhibit F is a “TIMELINE” under “DONOR NAME: TERRY GREEN” (the “Timeline”). Compiled by FirstLab with regard to the specimen Ms. Green submitted for analysis, the Timeline commences on November 25, 2013, and concludes with entries the following December 5, 2013. The Timeline shows that the specimen collected on November 25, 2013, was received at the laboratory on November 26, 2013, for drug/alcohol analysis. According to the Timeline, the laboratory transmitted the result to FirstLab on December 3, 2013: “MORE THEN [sic] ONE SUBSTANCE FOUND.” Pet’r’s Ex. F, at 6. The Timeline shows involvement of the MRO, beginning on December 4, 2013. According to the Timeline, the MRO, after being sent the documents for review, called the Donor (Ms. Green). After an interview, the Timeline entry shows: “MRO GAVE DONOR 24 HOURS TO FAX RX.” The entry for December 4, 2013, concludes: “MRO DETERMINATION MADE POSITIVE FOR CODEINE AND MORPHINE. ANOTHER SUBSTANCE PENDING.” Pet’r’s Ex. F, at 3, TIMELINE (emphasis supplied). The Timeline shows two entries for December 5, 2013. The first December 5 entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS POSITIVE FOR CODEINE, MORPHINE AND PENDING FOR ANOTHER SUBSTANCE. MRO REC’D AND VERIFIED RX PROFILE FOR THE OTHER SUBSTANCE.” Id. (emphasis supplied). The second December 5 entry and final Timeline entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS VOICE MAIL, NO CHANGE IN RESULT. OTHER SUBSTANCE NEGATIVE.” Id. (emphasis supplied). It may be inferred from the timing of the report of the positive for codeine and morphine (prior to a determination on the “other substance”), the reference to the receipt and verification of the RX profile “for the other substance,” and the conclusion in a separate entry that the “other substance” was negative, that the MRO examined the RX profile only for the other substance. It may also be inferred, therefore, that the MRO did not investigate whether the codeine and morphine positives in the specimen could have been due to the ingestion and metabolizing of Lortab or, as it is referred to on the RX profile, “HYDROCOD/APAP TAB.” See Ex. R-1, attached to the Transcript of the final hearing. The Return to Work Agreement The next day, December 6, 2013, Ms. Green interrupted a stay at a hospital for the illness she had had since mid-November in order to meet outside the hospital with an ECSD Administrator and her Union Representative. The meeting led to the execution of a Return to Work Agreement signed by Ms. Green, the ECSD Administrator, and Ms. Green’s Union Representative. The title of the agreement contains the following: “FIRST TIME POSITIVE DRUG/ALCOHOL SCREEN.” See Pet’r’s Ex. A. The body of the agreement contains the following: I, Terry Green, in exchange for my continued employment with the School District of Escambia County, Florida, and consistent with the provisions of Article XI.3 - Discipline Involving Drug or Alcohol Abuse or Dependency, Section B, hereby acknowledge that I have received a “First Time” positive drug/alcohol test result . . . . I am required to undergo a Substance Abuse Professional (SAP) evaluation and participate in the SAP recommended drug/alcohol abuse program at my expense with a goal of returning to full employment upon my successful completion of the prescribed rehabilitation regimen. Id. It is apparent that prior to November 25, 2013, Ms. Green had not had a record of any drug or alcohol offenses while in the employ of ESCD. The Return to Work Agreement acknowledges Ms. Green’s understanding that she “had the benefit of competent legal counsel and/or Association representation [as shown by the signature on the agreement of a Union/Legal Representative] . . . .” Pet’r’s Ex. A. It also acknowledges Ms. Green’s entry into the agreement “voluntarily and without duress or coercion of any kind and with full understanding of [her] rights and any waiver thereof.” Id. Nonetheless, at hearing Ms. Green claimed that she signed the Return to Work Agreement in reliance on her Union Representative’s advice without fully understanding the agreement’s implications. It was not until she met with an attorney provided to her by the Union who told her that she “had signed away [her] rights,” Hr’g Tr. 91, that she fully realized its significance. Signing it was an act she would not have committed, she asserted at hearing, even if it meant losing her job, had she thought it affected her right to challenge the positive drug/alcohol test. ECSD Action On December 5, 2013, ECSD notified Ms. Green that she had been placed on leave with pay. Section IX.6(b)(6) of the Master Contract between the School District of Escambia County, Florida and the Union of Escambia Education Staff Professionals, FEA, NEA, AFT (the “Master Contract”)3/ states as follows: Upon receipt of a positive test result in a first offense drug or alcohol screening, the employee may be administratively reassigned to her/his home pending appropriate due process procedures. The employee shall be recommended for suspension without pay until she/he completes a District and Union approved Substance Abuse Professional (SAP) evaluation and the drug/alcohol dependence or abuse rehabilitation program at the employees’ expense as recommended by the SAP. (The employee may utilize the District Health Care Program to the extent specified for the rehabilitation program in the DHCP.) Pet’r’s Ex. D, at 8 (page 35 of the Master Contract). Consistent with the section of the Master Contract quoted above, the superintendent of the ECSD recommended that Ms. Green be placed on suspension without pay until completion of an evaluation by the SAP and any rehabilitation program recommended by the SAP. On December 17, 2013, the School Board approved the superintendent’s recommendation, and Ms. Green was suspended without pay beginning December 18, 2013. Ms. Green’s subsequent request to use sick leave beginning December 18, 2013, was denied by ECSD. Ms. Green’s Petition On January 14, 2014, Ms. Green, through counsel provided by the Union, submitted a Petition for Hearing to the ECSD. The petition requests that Ms. Green be allowed to use sick leave after December 18, 2013, the date the School Board placed her on leave without pay. The Petition asserts that there are no disputed issues of material fact. Facts cited in the petition include Ms. Green’s employment as a school bus driver with ECSD, her initial placement on leave with pay while a “reasonable suspicion” drug test was conducted, her entry into the Return to Work Agreement, and the School Board’s subsequent placement of Ms. Green on leave without pay effective December 18, 2013. The Petition does not definitively admit that Ms. Green is a substance abuser. Rather, it asserts that she “is unable to perform her duties as a bus driver while she is evaluated and receiving rehabilitation for substance abuse, which is a sickness.” Petition for Hearing, at 2, ¶ 9. The Petition, therefore, depends on the evaluation of the SAP and a determination that Ms. Green is in need of rehabilitation for substance abuse. If Ms. Green were evaluated by the SAP and determined not to be in need of rehabilitation for substance abuse, there would be no basis for the petition or the relief it seeks. Ms. Green’s Need for Rehabilitation for Substance Abuse At the hearing, Ms. Green’s mother, Henrietta Moye, was asked the following question by Ms. Green: “Have you ever witnessed me being, in the last two years or almost two years being here, under the influence of any type of drug to impair or any type of alcoholic beverage to impair me?” Ms. Moye answered, “No.” Hr’g Tr. 76. Ms. Moye, moreover, is not aware of any time in her life that Ms. Green has abused any type of medication or consumed alcohol to the point of intoxication. At the hearing, employees of ECSD did not contend that Ms. Green needs rehabilitation for substance abuse. Nor has ECSD expressed its position based on Ms. Green’s relationship to substance abuse. Rather, it bases its position solely on procedures dictated by a single, first-time, drug report positive for opiates and the Return to Work Agreement. The record is silent as to the outcome of an evaluation by the SAP or whether such an evaluation has ever been conducted. Sick Leave Whether Ms. Green is in need of rehabilitation for substance abuse or is a person free of substance abuse, no evidence was produced at hearing that substance abuse is a sickness that would entitle her to sick leave. Likewise, no statute, rule, regulation, or any applicable law was produced by Ms. Green that would entitle her to sick leave for substance abuse while she was placed on leave without pay pending an evaluation by the SAP.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board continue to deny Ms. Green’s request to use sick leave during her suspension without pay that the School Board imposed effective December 18, 2013, and enter a final order that denies the relief sought in Ms. Green’s petition. DONE AND ENTERED this 2nd day of May, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 2nd day of May, 2014.
The Issue The issue in this case is whether the Respondent failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.
Findings Of Fact Based on the evidence received at the formal hearing, the following facts are found: The Respondent, James L. Jackson, was certified by the Criminal Justice Standards and Training Commission as a correctional officer in 1981. At all times relevant and material to these proceedings, the Respondent was a correctional officer sergeant employed by the Broward County Sheriff's Department. In late July or early August of 1989, during the course of investigating illegal conduct by other employees of the Broward County Sheriff's Department, a Detective Dansky, then working in the Internal Affairs Office of the Broward County Sheriff's Department, was told by one of the admitted wrongdoers that he had heard that several employees of the Sheriff's Department, including the Respondent, were involved in criminal activity related to the possession, use, or distribution of controlled substances. Shortly after receiving that information, Detective Dansky contacted the Respondent and requested that he provide a statement in response to the allegation that he had been involved in illegal drug activity. On August 8, 1989, the Respondent reported to the Internal Affairs Office, where he met with Detective Dansky. After being advised of the specific allegations that had been made against him, the Respondent gave a statement to Detective Dansky. The Respondent's statement consisted of a denial of all allegations of misconduct. After taking the Respondent's statement, Detective Dansky offered the Respondent the option of furnishing a urine sample for drug testing in order to resolve the issue. The Respondent voluntarily agreed to provide a urine sample. Detective Dansky initiated the drug testing process by asking the Respondent if he had been using any drugs that might show up on the test. The Respondent stated that he had not used any drugs. Shortly thereafter, the Respondent provided a urine sample. The sample was collected under circumstances which verified that the sample was actually provided by the Respondent and the sample was promptly sealed in a manner which made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was also given a unique identifying number. The urine sample was properly protected until it was turned over to the forensic laboratory, where it was received in good condition with no evidence of tampering. At the laboratory the Respondent's urine sample was kept in a secure manner during the testing process. At the laboratory, adequate procedures were used to ensure that the Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the sample had not been tampered with. A portion of the Respondent's urine sample was submitted to an immunoassay screening analysis. The screen analysis indicated the presumptive presence of benzoyleconine, a unique metabolite of cocaine. Following the screen analysis, a second portion of the Respondent's urine sample was submitted for analysis by means of gas chromatography/mass spectrometry, which is the most reliable and accurate method for confirmatory drug testing. The gas chromatography/mass spectrometry analysis of the Respondent's urine sample was positive for the presence of benzoyleconine in a concentration of 4903.5 nanograms per milliliter. That concentration of benzoyleconine is consistent with, and indicative of, the Respondent's voluntary ingestion of cocaine within a time frame of approximately one to four days prior to the collection of the urine sample. The Respondent's positive drug test results were received by the Internal Affairs Office of the Broward County Sheriff's Department on August 15, 1989. On that date, Detective Dansky again met with the Respondent. Detective Dansky told the Respondent that the Respondent's urine sample had been confirmed positive for cocaine. The Respondent told Detective Dansky that he does not do things like that and that it could not be him. 1/ As a result of the positive drug test results, the Respondent was suspended and ultimately terminated from his position as a correctional officer sergeant with the Broward County Sheriff's Department. At the time of his suspension, the Respondent had worked for the Broward County Sheriff's Department for approximately nine and a half years. Prior to August of 1989, the Respondent had an excellent work record with the Broward County Sheriff's Department.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent has failed to maintain good moral character and revoking the Respondent's certification as a correctional officer. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH, 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 21st day of May, 1991.
The Issue The issue is whether Respondent is guilty of violating Petitioner's rule requiring that all employees Respondent's job classification submit to random drug testing.
Findings Of Fact At all material times, Petitioner employed Respondent as a school bus driver. On January 12, 1995, Petitioner's representatives conducted a Drug Free Workplace Employee Training Session, which was attended by Respondent. This training session was one of many such sessions at which Petitioner's representatives explained to each covered employee the provisions of Petitioner's drug policies. These provisions include a provision that a refusal to take a random drug test is tantamount to failing a drug test and a basis for termination. The Employee Information on Drug and Alcohol Testing, which is the handbook distributed to Petitioner's school bus drivers, including Respondent, informs each driver that Petitioner will annually administer random drug tests to half of the driver positions and that, if selected for a random drug test, the driver must report immediately to the testing laboratory. The employee handbook informs drivers that a refusal to submit to a random drug test is prohibited. The employee handbook explains that engaging "in conduct that clearly obstructs the testing process" constitutes a refusal to submit to a random drug test. The employee handbook notes that conduct obstructing the testing process includes a "failure to immediately report to the testing facility after notification." Finally, the employee handbook warns that Petitioner may terminate drivers who have engaged in prohibited behavior. Article 32, Section 2, of the 1998-2000 Agreement Between the School Board of Pinellas County, Florida, and School Employees Union, Local 1221, Firemen & Oilers, An Affiliate of Service Employees International Union, AFL/CIO, CLC, contains the same requirements as those set forth above in the employee handbook. Section 3 warns that a violation of any of these requirements by a covered employee may result in termination. On March 21, 2000, Petitioner's Transportation Clerk Specialist II summoned Respondent to the transportation offices. When Respondent reported to her office, the clerk informed Respondent that she had selected him for random drug testing. Obviously, element of surprise is an important feature of random drug testing. Equally important to random drug testing is the control of the subject between the point at which he is informed that he is to take a random drug test and the production of the sample or samples to be tested; given enough time between the notification and the test, a subject might be able to ingest substances that could interfere with the ability of the test to detect drugs. Also important to random drug testing is the confirmation that the person presenting himself at the testing laboratory is the person who has been randomly selected for testing. Each of these elements plays a role in this case. Petitioner's clerk checked Respondent's identification, including his driver's license, and explained to him the procedures that he was to follow. Respondent had undergone random drug testing in the past while employed by Petitioner. In brief, Petitioner's clerk told Respondent that he had to report immediately to the testing laboratory, which is a short drive from the office. The clerk instructed Respondent to sign in upon arrival at the laboratory and, when called, to present all of the paperwork that she was giving him, as well as his driver's license. Petitioner's clerk warned him that he could not leave the laboratory premises until he had completed the drug test. Respondent reported immediately to the laboratory and signed in, as instructed. When called, Respondent presented his paperwork to the laboratory clerk, but he did not produce his driver's license, claiming that he did not have it with him. Respondent is not the first employee to appear at the laboratory without suitable identification. Petitioner's procedure is to maintain a photocopy of each employee's driver's license and fax the photocopy to the laboratory when employees report to the laboratory without identification. If the laboratory clerk cannot positively confirm the identification of the employee from the photocopied identification, then the laboratory employee detains the employee while Petitioner sends the employee's supervisor to the nearby laboratory to confirm the identity of the employee. Once done, the drug test proceeds. Pursuant to this procedure, the laboratory clerk telephoned Petitioner's clerk and informed her that Respondent had failed to produce his driver's license. The testimony of the laboratory clerk and Petitioner's clerk diverges at this point; each claims that the other clerk spoke to Respondent. However, the laboratory clerk testifies that she summarized the instructions given Respondent over the telephone by Petitioner's clerk. Just before Respondent left the reception room to search the bus for his driver's license, the laboratory clerk told him that he could go to the bus to look for his driver's license, but he was to return to the reception room. In any event, the clerks agree that Respondent received permission to return, unescorted, to his bus to search for his driver's license--a deviation from established procedure that prohibits the employee from leaving the laboratory once he has reported for a random drug test. The testimony of the clerks establishes that Respondent was permitted to return, unescorted, to his bus to search for his driver's license. The testimony of the laboratory clerk establishes that she clearly directed Respondent to look for his driver's license in the bus and return to the reception room. The discrepancy in the testimony of the clerks as to who conveyed the substance of the additional instructions to Respondent is, ultimately, immaterial; the possibility that one of the clerks could have given Respondent permission to leave the laboratory parking lot to search for his driver's license, or the possibility that Respondent could have misunderstood the clerk to have given him this permission, is negated by Respondent's later conversation with the Assistant Director of Transportation, as set forth below. Following his conversation with the laboratory clerk and possibly Petitioner's clerk, Respondent left the laboratory and went to his bus, ostensibly to search for his driver's license. Respondent did not return to the laboratory, but, instead, drove his bus back to the bus compound. Evidently, Respondent went home after returning his bus. One to one and one-half hours after leaving the laboratory, Respondent telephoned Petitioner's clerk and informed her that he had not found his license and had instead become sick, so he had gone home to eat something and take his medicine. Respondent told her that he had retraced his steps, but had not found his driver's license. At this point, Petitioner's clerk transferred the call to her supervisor, who is the Assistant Director of Transportation. The Assistant Director of Transportation started their conversation by stating her understanding that Petitioner had sent Respondent for a random drug test, but he had not completed it. Respondent answered that he could not find his driver's license and believed that Petitioner's clerk may have failed to return it to him earlier in the morning when she had examined it. The Assistant Director of Transportation replied that the clerk had looked for the driver's license and failed to find it, so that they were sure that she had not failed to return it to Respondent. Pausing for about five seconds, Respondent answered, "I wasn't feeling well. I had to go home and take my medication." The Assistant Director of Transportation replied that she would treat this as a refusal to submit to a drug test. They spoke for a few moments more, confirming that Respondent was calling from his home and that the bus was at the compound. The Assistant Director then directed Respondent not to report to work and told him that a personnel employee would be contacting him. Respondent concluded the conversation by repeating that he had not been feeling well. At no point in the conversation with Petitioner's clerk or the Assistant Director of Transportation did Respondent ever claim that he left the laboratory parking lot with the permission of Petitioner's clerk or the laboratory clerk or that he left the laboratory parking lot thinking that he had the permission of one of the clerks. It appears that he had ample opportunity in his conversation with the Assistant Director of Transportation to make this claim. Instead, Respondent merely repeated his claim that he became ill. Thus, it is very likely that Respondent clearly understood the final directions of the laboratory clerk: Respondent was to search his bus for the driver's license and then return to the laboratory reception room. It is thus not difficult to determine that it is considerably more likely than not that Respondent left the laboratory parking lot, knowing that he did not have the permission of either clerk to do so. Petitioner's witnesses testified candidly. The Assistant Director of Transportation did not appear overbearing or intimidating, so as to deter Respondent from presenting all of the facts in his defense, such as a claim that he had left the parking lot with the accurate or mistaken impression that he could do so in an effort to find his driver's license. It is only a little more difficult to determine that Respondent's claim of illness as the cause for his departure from the parking lot is more likely than not to be a fabrication. The coincidence of a random drug test, misplaced driver's license, and sudden onset of debilitating illness is unlikely. Presumably, the illness would have arisen after Respondent had spoken to the laboratory clerk, or else Respondent would have mentioned something to her when he was in the reception room. Even if Respondent had been suddenly struck by some illness while on his way to search the bus or while searching the bus, he would have been able to return to the reception room and tell the laboratory clerk either that he had fallen ill and had to go home immediately or that he had fallen ill and needed to produce a urine sample immediately, with or without further identification. Obviously, the illness had not been so debilitating to have prevented Respondent from returning to the reception room and telling the laboratory clerk of the illness; after all, Respondent was able to drive the bus to the bus compound and then drive himself home. Based on all of the facts, Petitioner properly treated Respondent's acts and omissions as the equivalent of refusing to submit to a random drug test and, as authorized by the collective bargaining agreement, properly terminated Respondent's employment as a school bus driver.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2000. COPIES FURNISHED: Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 Jacqueline M. Spoto, Staff Attorney Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Glenn Cromartie 1639 26th Street, South St. Petersburg, Florida 33712
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 18th day of August, 1995.
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 28th day of December, 2012.
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this case is whether the School Board has cause to discharge Respondent, Arlene Murray, from her duties as a bus driver with the Board because of a positive result for cocaine obtained in a drug screening.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Pinellas County School Board, was the agency in Pinellas County responsible for the provision of public education and educational support services in the county. Respondent, Arlene Murray, was employed by the Petitioner as a school bus driver. The position of school bus driver is a sensitive position and subject to the additional requirements pertinent to employment in such a position. One of these requirements is to undergo random drug screening from time to time. There is a decided safety purpose inherent in this requirement. By letter issued in October, 1994, the Board notified all its school bus drivers, including the Respondent, that, consistent with federal law, all employees who were required to hold a commercial driver's license and who perform sensitive functions for the Board, would be subject to drug urinalysis testing and/or breath alcohol testing. Respondent operated a school bus which transported more than 15 persons and was, therefore, subject to this requirement. Sometime thereafter, in December, 1994, the Board adopted Section 6Gx52-5.27, "Drug-free and Alcohol-free Workplace", as a formal Board policy. One purpose of this policy was to comply with the federal requirement. Consistent with this action, the Board contracted with FirstLab, a medical testing organization, to conduct the drug screenings, and FirstLab contracted with Corning-Metpath Clinical Laboratories, (Corning Metpath), a certified clinical laboratory, to conduct the actual analyses of the specimens gathered from subject employees. School Board policy and the pertinent federal regulations require that drug testing be conducted un-announced on a random selection basis and must equal or exceed fifty percent of the total number of individuals in each subject class. Consistent with the policy and federal requirement, sometime prior to January 23, 1995, Max Loden, the Board's supervisor of support services and its project coordinator for drug testing, compiled a list of all subject employees which he thereafter furnished to FirstLab. FirstLab, in turn, through use of its computers, generated a random list of those subject employees who were to be drug tested in calendar year 1995. The list for the first quarter of calendar year 1995 was telefaxed by FirstLab to Mr. Loden on January 23, 1995. Respondent's name appeared on that list. Also, sometime during January 1995, the Board conducted one-hour workshops for all bus drivers to inform them of its policy regarding drug testing. At those training sessions, a handbook describing the program was furnished to each driver. Each driver who received such a handbook signed a receipt to that effect. On January 26, 1995, Ms. Murray signed a receipt indicating she had received the information handbook describing the Board's drug policy. As a part of its implementation of the testing program, some time before March 1995, the Board contracted with Doctors Walk-In Clinic, (Clinic), located on US 19 North in Clearwater, to be a drug testing site. A complete and detailed collection procedure was developed which, all available evidence indicates, is designed to preserve the confidentiality of the donor, and to ensure that the integrity of each sample is maintained to guarantee a match of sample with donor and against contamination by any outside source. This procedure was followed in Ms. Murray's case. On the morning of March 10, 1995, Respondent was notified by a Board representative that she was to report to Doctors Walk-In Clinic for a drug test before 9:35 AM that day. Ms. Murray reported to the proper location for testing as instructed, where the sample was collected according to the defined collection procedure, by Ashar Deshbande, a lab technician at the Clinic. Once the sample was collected, Ms. Deshbande completed the required portions of the federal drug testing custody and control form for shipment of the sample to Corning-Metpath for analysis. Portions of this form are completed by both the technician and the donor, and a detailed procedure is prescribed and followed for the securing, packaging and transmission of the sample from the collection site to the laboratory. This procedure, which was followed in this case, is designed to insure that the sample collected from the individual donor is properly identified, secured and transmitted to the lab without any reasonable possibility of contamination. Respondent's sample was received at Corning Metpath, a facility licensed to conduct this type of laboratory analysis by both the appropriate federal and Florida authorities, on March 14, 1995. When inspected at Corning Metpath, the sample was found to have all security seals intact and undisturbed. The identification number on the specimen was compared with the number on the requisition form submitted by the Clinic and found to be identical. It is found, therefore, that the sample collected from Respondent on March 10, 1995, immediately secured, identified and prepared shipment to Corning Metpath, and thereafter shipped by air to Corning Metpath, was the same sample as received by the laboratory on March 14, 1995 and it had not been contaminated by any outside source at time of receipt by the lab. A tracking number to be used for laboratory internal tracking was also assigned at that time. Several distinct tests were run at Corning Metpath on the instant specimen collected from Respondent. The first was a screening test, conducted on March 15, 1995. In this test, the sample is placed within a batch of control samples used to insure the instrumentation is properly functioning during the process of analysis. This screening process tests for five drug classes. These include amphetamines, phincyclatine, PCP, opiates and marijuana. In the course of the test, only a small portion of the sample is utilized. The remainder of the collected sample is placed in a locked cage for temporary storage. The sample to be used is then taken the preparation room to the screening room where instrumentation reads the identifying bar code on the containers, performs the analysis and produces a print out. Once the process is completed, this tested sample portion is discarded. In the instant case, the screening test indicated Respondent's specimen showed a numerical value of 370. This is more than twice the minimal indicator calibrated for indicating the presence of cocaine. When the specimen tested positive for cocaine, the sample was removed from the test batch and secured in a locked refrigerator for confirmation testing. The next day, March 16, 1995, the Respondent's positive sample was removed from the locked refrigerator and subjected to confirmation testing. Confirmation testing is accomplished by a staff team entirely different from those individuals who made up the screening test personnel. The confirmation testing is done on only one specimen at a time and no more than that sample under test is opened. In a confirmation test, the standards of which are even more stringent than those for the screening test, Respondent's sample again tested positive for cocaine. The test results indicating a positive result of the laboratory analysis were received from FirstLab by Mr. Loden at the Board on March 23, 1995. Mr. Loden immediately notified the Board's Office of Professional Standards that a positive result had been received on Ms. Murray's sample, and a decision was then made to suspend Ms. Murray, with pay, until dismissal action could be considered by the Board at its next regularly scheduled meeting. Before the Board meeting could be held, Ms. Murray requested formal hearing. Ms. Murray denied under oath ever using cocaine and affirmatively stated she did not use drugs. She could not, however, give any explanation as to how cocaine metabolite could have been present in her urine. Ms. Murray has lived in Pinellas County for 32 years and has been employed by the Board as a bus driver for six years. Prior to the instance under consideration here, she claims, she has never been in any trouble with the Board and has never been convicted of a crime. When interviewed by Dr. O'Howell on the day the test results were received, she was advised of the results and that if she resigned, the incident would not appear in the papers. Because, she claims, she has not used drugs for at least one year prior to this incident, Ms. Murray declined to resign and was dismissed. She asserts that in briefings given to employees, they were told that if they were to come to their supervisor and indicate they needed help, they would not be fired. She knows of at least one other employee who tested positive for drugs and was not fired. That individual was not identified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Arlene Murray, be terminated for cause from employment as a school bus driver with the Pinellas County Schools. RECOMMENDED this 27th day of October, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of October, 1995. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Eduardo LaTour, Esquire Tarpon Tower, Suite 400 905 East Martin Luther King, Jr. Drive Tarpon Springs, Florida 34689-4815 Dr. J. Howard Hinesley Superintendent Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue is whether Respondent, a certified law enforcement officer, tested positive for marijuana metabolites, indicating the unlawful use of a controlled substance, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent’s certificate?
Findings Of Fact Respondent is a certified law enforcement officer, having been issued certificate number 240412 on May 17, 2004. At all times material hereto, Respondent was employed by the Town of Palm Beach Police Department (the Town). On June 24, 2012, at approximately 1:20 a.m., Respondent responded to an alarm call. As he was leaving the scene, Respondent, who was driving a city police vehicle, pulled into a private driveway and failed to see a low hanging metal chain hanging across the driveway attached to two concrete pillars. The chain struck the front end of the vehicle, and, as Respondent continued forward, the chain rode up the front hood and struck the windshield. As a result, the vehicle sustained multiple scratches across the hood, a cracked windshield, a broken side view mirror, and a cracked front lens plate. Watch commander, Captain Curtis Krauel (Krauel), was on the scene at the time the accident occurred. Krauel estimated the damage to the vehicle to be approximately $500.00. However, it was very dark and this was a rough estimate only. In relevant part, the Town’s comprehensive alcohol and drug abuse policy, procedure number 1-06-5(d), provides that the Town may require an employee to submit to tests for the presence of alcohol or illegal drugs: Whenever an employee is involved in an accident while operating a town vehicle or while working for the town, which results in one or more of the following: A citation issued to the employee; Total property damage in excess of $1,000; Filing of a notice of injury under Workers Compensation. Because Krauel was not certain of the amount of damage to the vehicle, he instructed Respondent to report back to the station for drug and alcohol testing. Krauel had no concerns prior to the accident regarding any illicit drug use by Respondent. However, he knew that this accident would require a property damage report and that the Town’s policies mandate testing. This was Respondent’s first accident in seven years, and he was upset. Krauel told Respondent he believed the damage was minor. Respondent disputed that an alcohol or drug test was necessary. Respondent had been studying for the sergeant’s exam and was aware that the policy had a minimum $1,000.00 damage threshold. Krauel contacted his sergeant and both believed the threshold necessary for testing was $500.00 worth of damage. However, as Krauel explained at the final hearing, he is not a property appraiser, and he needed to make a ballpark estimate in the dark. Krauel knew that he could not really tell the damage until the morning; therefore, the most prudent option was for him to send Respondent for drug and alcohol testing. Property Damage Appraisers Fort Pierce examined the vehicle and provided a repair estimate of $1,844.24. Respondent, in compliance with the order issued by his supervisor, reported back to the station on June 24, 2012, at approximately 2:11 a.m., and gave a specimen of his urine, by urinating in a sterile, previously unused specimen cup provided to him by Nancy O’Dette (O’Dette)(formally Nancy Richards) of NMS Management.1/ After Respondent urinated into the specimen cup provided to him, he handed it to O’Dette who put Respondent’s specimen into a tube, immediately sealed the tube, had Respondent initial and date the seal, and then completed the chain of custody form. O’Dette labeled Respondent’s specimen with his Social Security number and also assigned it a unique specimen number, 9263743, making it uniquely identifiable as Respondent’s June 24, 2012, urine sample. The vial containing Respondent’s urine specimen was sealed with a label that would not allow the vial to be opened again without breaking the seal created by the label. O’Dette packaged the vial containing Respondent’s urine specimen in a bag which she also sealed and labeled as Respondent’s June 24, 2012, urine sample. She then placed the bag in a pickup box at NMS Management to await pickup by a courier for delivery to laboratories of Quest Diagnostics (Quest). Specimen number 9263743 was received at the laboratories of Quest in Tucker, Georgia, on June 26, 2012, where it was assigned the unique laboratory accession number 328410K for purposes of drug testing analysis by Quest. Quest maintained chain of custody procedures in handling Respondent’s specimen until it was unsealed by qualified laboratory personnel at the Quest laboratory and subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. Quest conducts initial testing of urine samples by immunoassay, and confirmation testing by "GC-MS" or gas chromatography-mass spectrometry. It is the regular practice of Quest to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and is broken down by the liver, producing the marijuana metabolite, which is excreted through the kidneys. Quest conducted immunoassay and confirmation testing on specimen number 9263743. Quest’s confirmatory laboratory analysis of Respondent’s urine specimen was found by qualified Quest personnel to be positive for the marijuana metabolite in a concentration of over 1500 ng/mL. Any quantitative level of the marijuana metabolite detected above 15 ng/mL using the "GC-MS" methodology is considered a positive test result. Dr. Benjamin Droblas, a medical doctor and the medical review officer for Healthcare Center of Miami, reviewed the report from Quest reflecting the results of the analysis of Respondent’s urine specimen. On June 29, 2012, Dr. Droblas discussed the test result by telephone with Respondent. Dr. Droblas’ purpose for contacting Respondent was to ascertain if he could provide any legitimate explanation for the positive test result. Respondent did not provide Dr. Droblas with any explanation for the positive test result and denied using marijuana. The test results from the analysis of Respondent’s urine specimen are consistent with Respondent’s illicit cannabis use prior to providing his urine specimen. Respondent did not request additional confirmatory testing on a split sample from Quest.2/ No evidence was introduced regarding any prior discipline against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failure to maintain good moral character, as required by section 943.13(7), Florida Statutes. It is further recommended that Respondent’s certification as a corrections officer be suspended for a period of six months, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 20th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2014.
Findings Of Fact At all times material hereto, Respondent, Cheryl A. Odom, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), having been issued certificate number 02-028628 on June 4, 1982. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. The procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/ In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/ Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against Respondent. DONE AND ENTERED this 8th day of August 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1995.
