The Issue The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
Findings Of Fact The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests. Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug Testing Programs" (DOT's Regulations). DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees. Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics. The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B). The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in each employee's personnel file. The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet. William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet. A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive. Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations. On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program. The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests. In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board. After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows: I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label attached to each bottle is correct. The lab technician followed the proper procedures for the collection of the single urine sample.1 Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form. The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen. There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample. Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations. There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control. A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body. The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California. On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion, Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis. An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis. Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days. Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed. The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis. At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive. As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services. School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part: No School Board employee shall unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . . Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction. As an employment condition, individuals shall: abide by the provisions of this School Board Rule. * * * The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein: Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes. Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment. The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with * * * (c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation. School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part: Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . . Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated. A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation. Any suspension or dismissal shall be pursuant to Florida Statutes. * * * Cause for dismissal shall include, but not be limited to: * * * (c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . . Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee. Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated. Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part: The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee. * * * Return to Duty Testing All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty. Follow-up Testing Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test. Positive Tests 1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program. The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part: Under what circumstances will a driver be subject to testing? * * * Return -to-duty testing: . . . Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a verified negative result for controlled substance use. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed. Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months. * * * What procedures will be used to test for the presence of controlled substances or alcohol? Controlled Substances All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). * * * What are the consequences for drivers found to have violated the prohibitions of this rule? Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: -- Drivers shall not be permitted to perform safety-sensitive functions. -- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances. -- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use. -- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use. -- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed. -- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months. The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion. By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting. On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample. The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated. By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board. Mr. Barber requested a formal hearing regarding the termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position. DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1998.
The Issue Whether Respondent is subject to discipline for violating Subsection 943.1395(6) and/or (7), Florida Statutes, and/or Rule 27.0011(4)(d), Florida Administrative Code, in that he failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent was certified by the Commission on October 26, 1995, and was issued Law Enforcement Certificate No. 153749. From October 17, 1994, to April 12, 2000, Respondent was employed as a law enforcement officer for the Escambia County Sheriff's Office. On or about March 29, 2000, the Street Crimes Unit of the Escambia County Sheriff's Office seized a large quantity of marijuana, in two grades, and brought it back to the station to be photographed and placed into evidence bags. Each evidence bag was sealed with a case number and the initials of Investigator Mark Jackson. When the evidence was set out for the media to see, Investigator Jackson noticed that one bag, containing the higher-grade marijuana, had been changed out. The packaging and taping had been changed; the marijuana inside the bag had been swapped out; and the handwriting and taping on the bag was different. Investigator Jackson notified his supervisor of his discovery, and all of the evidence was placed in the vault. The team was sent home. Investigators Paul Hawke and John Sanderson were contacted to look into the discrepancy. All fifteen members of the Street Crimes Unit, from sergeants to investigators, were asked to submit to a urinalysis as part of the internal investigation that ensued. All members of the unit, including Respondent, signed a consent for that purpose. Respondent was observed as being extremely nervous about submitting to the urinalysis, stating that he had handled so much marijuana that he was afraid it would be in his system just from touching it. The collection of urine samples did not occur until the day after the switch was discovered. Deputy Taylor assisted in the collection of the urine specimens, and kept notes of the times of the collections. He sealed and marked the urine samples, made notes, and delivered the samples to the Florida Department of Law Enforcement (FDLE) for testing on March 31, 2000, along with an appropriate tracking sheet. Crime lab analyst Lisa Zeller ran an initial screening test, then a gas chromatography mass spectrometry test which is a confirmatory test. It confirmed the presence of tetrahydrocannabinols (TCH), a component of marijuana, in Respondent's urine, above the level of 13 nanograms. TCH is rendered contraband by Subsection 893.03(1)(c)34., Florida Statutes (1999). Respondent, identified as "Exhibit Nine" on the FDLE lab report, was the only individual on the Street Crimes Squad whose urine sample tested positive for TCH. Respondent did not have an explanation that was plausible to law enforcement investigators as to how the TCH could have gotten into his system. He told them he sucked the air out of bags of marijuana to, in effect, "vacuum seal" the bags. This is not a standard law enforcement technique for preserving evidence. It is not necessary to preserve the freshness of contraband for evidentiary purposes. Respondent was terminated by the Escambia County Sheriff's Department because of his positive contraband drug test. The State Attorney filed criminal charges against Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order finding Respondent guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1999), and revoking Respondent's certification. DONE AND ENTERED this 29th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 29th day of October, 2003.
The Issue The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.
Findings Of Fact Respondent began working for the City in August 2001. In November 2012 he was reclassified as a Stormwater Technician II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated effective March 11, 2015. See City Ex. 6. Respondent then requested a hearing to contest that action. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent." Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II. DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 1st day of October, 2015.
The Issue The issue is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of November, 2011.
The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida, and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.; § 1001.32, Fla. Stat. (2016). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a two-year probationary period, and required Respondent to submit to substance abuse treatment. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who was at work. Respondent’s calls were not answered by Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.” At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows: I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day. And she asked me for pain pills or if I had any, and I said no.[1/] Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication. Mr. Long then contacted the school board’s office of human resources to report what he had been told by Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.” Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.” During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/ At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit to drug testing pursuant to the school board’s drug-free workplace policy. Reasonable Suspicion Indicators Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows: Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy. Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting Abnormal or erratic behavior Evidence of possession, dispensation, or use of a prohibited substance Industrial accident requiring medical attention Physical altercation or assault Odors and/or Appearance Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess very flushed very pale Jerky eye movements Unfocused, blank stare Dilated or constricted pupils Dry mouth, frequent swallowing or wetting lips Bloodshot or watery eyes Behavior and Speech Slurred or incoherent speech Breathing difficulty or irregularity Loss of physical control, dizzy or fainting Unsteady walk, poor coordination Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude Irritable, moody, belligerent or aggressive demeanor Nausea or vomiting Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness Rambling, loud, fast, silly or repetitious speech Talkative, cursing, other inappropriate speech Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions Mr. Carter and Ms. Anderson each completed a checklist. None of the indicators listed above were checked by either Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4, 2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing. Morphine and Imitrex Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and] [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her 2016-2017 annual contract with the School Board. DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2017.
The Issue Whether disciplinary action should be taken against Respondent's license no. 15-02311, 4COP, based on the violations of Sections 893.13, 561.29, and 823.13, Florida Statutes, as charged in the Second Amended Notice to Show Cause filed against Respondent in this proceeding.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Respondent is Manos, Inc., d/b/a Sea Port Restaurant and Lighthouse Lounge. Respondent holds Beverage License No. 15-02311, 4COP, and is located at 680 George King Boulevard, Cape Canaveral, Florida 32920. Raymond J. Cascella is the president, vice-president and secretary of Respondent. Cascella indicated that his wife, Eileen Cascella, was the manager of Respondent's restaurant and lounge during the period of June through August 2001. A customer going by the name of "Red" had been at the establishment three or four times a week for a couple of years. Mahatha Brownlee is the individual who goes by the nickname "Red" and frequents Respondent's establishment. An individual going by the name of "Diamond" had been at the establishment frequently over a period of six months. Ronald Carlson, caretaker of the premises during the relevant time-period of June through August 2001, became aware that drug usage was occurring on the licensed premises when two bartenders of Respondent complained to him. Carlson also observed that whenever uniformed officers came into the establishment, many of the customers would get up and leave. Deputy Thomas D. Rodgers made two arrests on drug warrants inside the licensed premises during 2001, both of whom were employees of Respondent. On July 31, 2001, Special Agent Bethany Driggers, DABT, while in the licensed premises overheard a conversation whereby a customer asked a bartender about the availability of crack cocaine at the licensed premises. Stephanie Farrington, a bartender employed by Respondent, gave a statement to law enforcement under oath, which Special Agent Richard Waters, DABT, signed as a witness. The sworn statement of Stephanie Farrington was introduced as a business record exception. Respondent's qualified representative waived any objection to its introduction. Sometime in July 2002, Farrington confronted Cascella about the drug abuse in his business and the obvious drug dealing going on in the establishment. Cascella told her to go speak to the suspect known as "Red" to let "Red" handle it. Farrington had spoken with the manager, Eileen Cascella, as well, who indicated that she was aware that drug dealing was going on in the premises. Richard Hurlburt is a Special Agent with DABT. He is an 18-year veteran agent and has prior law enforcement experience. Agent Hurlburt was found, without objection, to be an expert in conducting undercover operations. Agent Hurlburt, based on his training and experience, believed that there was rampant drug dealing going on at the licensed premises, during the months of June through August 2001. Agent Hurlburt began his investigation during the daytime hours in June 2001, so that he could have more of a one- on-one contact with the employees. As a result of the violations he observed occurring during the day, Agent Hurlburt was able to conduct the investigation during the day and avoid the violence that frequently occurred at the premises in the later hours. Agent Hurlburt indicated that a suspect's exchange of a wad of money with an employee and receiving a large bill in return is consistent with the actions of drug dealers. In June 2001, Agent Hurlburt observed suspect "Red" exchange a wad of money with Cascella and receive a large bill in return. On June 27, 2001, Agent Hurlburt was served a beer by suspect "Red" while on the subject premises. On June 27, 2001, Agent Hurlburt purchased drugs twice from suspect "Big Mama," a person not further identified. Agent Hurlburt turned both samples of suspected crack cocaine over to Special Agent Roy Dotson, DABT. Agent Dotson is a ten-year law enforcement veteran with over 1,500 hours of specialized training. Agent Dotson has field-tested suspected crack cocaine over 500 times and has never had a field test result invalidated by later testing. Agent Dotson field-tested the suspected crack cocaine turned over to him by Agent Hurlburt on June 27, 2001, and the results were positive for the presence of cocaine. Special Agent Gregory Aliberti, DABT, secured the suspected crack cocaine purchased by Agent Hurlburt on July 11, 2001. Kim Poon, employed by the Florida Department of Law Enforcement (FDLE) as a crime laboratory analyst, was recognized, without objection as an expert drug analyst. Poon used two separate instrument tests, the mass spectrometer, as well as a gas chromatograph. Poon indicated that when the instruments are used correctly and in conjunction, the instruments are foolproof, there is no room for error. None of the drugs in this case that were in Poon's possession were tampered with to his knowledge. The three exhibits were tested and came back positive for cocaine, using the aforementioned two tests. The drugs purchased by Agent Hurlburt on June 27, 2001, were tested and the results came back positive for cocaine. On June 29, 2001, Agent Hurlburt purchased $20 of crack cocaine from suspect "Big Mama" and turned these drugs over to Agent Aliberti. These drugs were subsequently tested positive for cocaine. On or about July 2001, Agent Hurlburt, DABT, while in the licensed premises overheard a conversation between a bartender, Elaine, and another bartender, Jason, in which they indicated that Farrington had come into the establishment and named the names of people who were dealing drugs. They went on to say that Farrington named specific individuals "Moo-Moo," "Red" and "Diamond" as drug dealers. Farrington stated that there is a black male known as "Red" who hangs-out in the bar five out of seven days a week and she believed he was selling crack cocaine. Suspect Ray Charles was observed exiting the kitchen on numerous occasions. Agent Hurlburt asked suspect Ray Charles if he was an employee and he indicated that he cleaned up or did whatever Ray wanted him to do on the premises. On July 10, 2001, the agent made three separate drug purchases from suspect Ray Charles. The suspected crack cocaine was turned over to Agent Dotson who subsequently conducted a field test. It rendered a positive result for the presence of cocaine. The three separate samples of suspected crack cocaine purchased from suspect Ray Charles by Agent Hurlburt were subsequently tested positive for cocaine. Agent Hurlburt established that after meeting with support personnel the packages in which the suspect crack cocaine was stored in were marked with the date of the purchase, Agent Hurlburt's initials, which purchase it was for that day, and the suspect's name. On July 11, 2001, Agent Hurlburt purchased a $100 piece of crack cocaine from suspect Ray Charles. Ray Charles is the same individual as Ray Charles Mitchell, who is a felon on probation for possession of cocaine at the time of the formal hearing in this matter. Agent Hurlburt made a second purchase from Ray Charles on July 11, 2001. The suspected crack cocaine purchased from suspect Ray Charles on July 11 by Agent Hurlburt was subsequently tested positive by Poon of the FDLE. Agent Hurlburt also purchased crack cocaine on July 11 from the suspect known as "Red." The suspected crack cocaine purchased from suspect "Red" by Agent Hurlburt subsequently tested positive after analysis by Poon. On July 13, 2001, Agent Hurlburt purchased a $20 piece of crack cocaine from suspect "Red." On July 13, 2001, Agent Hurlburt made a second purchase of suspected crack cocaine from "Red." The suspected crack cocaine subsequently tested positive for cocaine. On July 17, 2001, Agent Hurlburt made two purchases of suspected crack cocaine from suspect "Red" and both subsequently tested positive for presence of cocaine. On July 20, 2001, Agent Hurlburt returned to the premises and purchased suspected crack cocaine from suspect "Red." Poon tested the crack cocaine purchased from "Red" on July 20 and it tested positive for cocaine. On July 24, Agent Hurlburt purchased suspected crack cocaine from suspect "Red" on two occasions and turned over the drugs to support personnel. The drugs purchased by Agent Hurlburt on July 24, 2001, subsequently tested positive for the presence of cocaine. Agent Dotson field-tested the drugs purchased from suspect "Red" on July 24 with a positive result for cocaine. During some of the drug purchases from suspect "Red" on July 24, 2001, Cascella was in the bar area. On July 25, Agent Hurlburt purchased suspected crack cocaine from a suspect known only as Rudy and turned the substances over to Agent Dotson, who subsequently field-tested it with a positive result. The drugs purchased by Agent Hurlburt on July 25, 2001, were subsequently tested positive for the presence of cocaine. Cascella was in the bar area on July 25, 2001. On July 27, 2001, Agent Hurlburt purchased two pieces of suspected crack cocaine. The drugs purchased by Agent Hurlburt were subsequently tested by Poon with the FDLE and tested positive for cocaine. On July 31, 2001, Agent Hurlburt overheard a conversation between two suspected narcotic dealers talking about a sale of crack cocaine to an individual bartender named Jason. On July 31, 2001, Agent Hurlburt purchased suspected crack cocaine from an individual on the licensed premises. The drugs purchased subsequently tested positive for the presence of cocaine. Agent Scott Behringer of the Brevard County Sheriff's Office (BCSO), Special Investigation Unit, secured the suspected crack cocaine purchased by Agent Hurlburt on July 31, 2001. Agent Behringer has been employed by the BCSO for approximately 13 years. He has been involved in several hundred investigations and has specialized training in narcotic identification schools including DEA basic and DEA advanced. Agent Behringer observed drug transactions occurring at the licensed premises. Agent Behringer subsequently tested the narcotics purchased by Agent Hurlburt on July 31, 2002, and the field test results were positive. Agent Behringer never had an occasion where he had field-tested a substance and was later disproved by drug analysis. This is despite having conducted approximately 1,000 field tests. On August 2, 2001, Agent Hurlburt and Agent Driggers were sitting at the bar at the licensed premises when they observed suspect "Red" sitting in a booth in the premises as well. Visible from the bar, placed on the suspect's calf was a stack of crack cocaine. Agent Hurlburt proceeded to measure the distance from the bar to a spot parallel to the suspect in order to determine the distance. The distance was estimated to be 155 inches. On August 2, 2001, Agent Hurlburt purchased $100 worth of crack cocaine from suspect "Red." On August 3, Agent Hurlburt purchased $50 worth of crack cocaine from suspect Rudy. The contraband was turned over to support personnel. Agent Behringer secured evidence on August 2, 2001; he field-tested the substance and it was positive for cocaine. It had the appearance of crack cocaine as well. All the evidence that Agent Behringer maintained was kept in a security area until being forwarded to Agent Dotson. Agent Behringer never had drugs in his possession that had been tampered with in any way. Agent Behringer saw Cascella observing drug sales during the relevant time-period late July and early August 2001. Agent Driggers indicated that even though she didn't have a great deal of training, she was able to observe numerous individuals making hand drug transactions in the licensed premises. The crack cocaine purchased on August 2 by Agent Hurlburt from suspect "Red" was tested by Poon and the result was positive for the presence of cocaine. Agent Driggers purchased suspected crack cocaine from suspect "Red" on August 8. The suspected crack cocaine purchased by Agent Driggers on July 31 and August 8, 2001, from suspect "Red" subsequently tested positive for cocaine. On August 10, 2001, Agent Hurlburt entered the establishment, made a purchase and departed the premises. He then went to the staging area where they were subsequently transported and tested by Kimberly Hampton-Sheley of the FDLE crime lab with a positive result for cocaine. FDLE Analyst Kimberly Hampton-Sheley indicated that the two tests that she ran on the substance resulted in a positive reading for cocaine. Further, the accuracy of combined testing in terms of chemistry is 100 percent accurate. Agent Driggers purchased $20 worth of suspected crack cocaine from an employee of the licensed premises, Jason, August 10, 2001. The drugs subsequently tested positive for the presence of cocaine. Shortly thereafter, Agents from the combined task force from the DABT and BCSO reentered the licensed premises in order to arrest those engaging in illegal activity. Agent Dotson searched bartender, Jason Gilroy, on August 10, 2001, at the time of the raid on the licensed premises. Agent Dotson discovered a small napkin with some cocaine in one of his pants' pockets. The drugs discovered on employee Gilroy on August 10, 2001, subsequently tested positive for the presence of cocaine. Another Manos employee, a bartender named Mike, was apprehended with a crack pipe in his manual possession on the night of the raid. Evidence Agents Aliberti and Waters, DABT, secured in this investigation was stored in the trunk of their state vehicle or at the Florida Highway Patrol unit where they have an evidence storage locker until it is forwarded to the BCSO or whatever agency is going to be responsible for the evidence. Agent Waters indicated that at the location of the Florida Highway Patrol is a locker which has their own personal key and they are the only ones with that key. Both Waters and Aliberti indicated that they have never had any evidence that was in their possession tampered with in this case or any other to their knowledge. Agent Aliberti was involved in transporting drugs from the BCSO to the FDLE. Agent Dotson testified that he secured the evidence in an evidence bag. He would initial them and they would be put into an evidence locker in one of their precincts to be forwarded to the Evidence Unit. Agent Dotson has never had any drugs tampered with in any of his cases, including the case at hand. The evidence is clear and convincing that on numerous occasions between June and August 2001, on the licensed premises, agents and employees, while in the scope of their employment, sold or permitted to be sold controlled substances, to wit: cocaine, in violation of Florida law. The evidence is clear and convincing that on numerous occasions between June and August 2001, the licensee, Raymond J. Cascella, permitted others, while on the licensed premises, to violate the laws of this state and of this United States by selling controlled substances, to wit: cocaine. The evidence is clear and convincing that the licensed premises was used for the illegal keeping, selling and delivery of controlled substances and is a public nuisance. The evidence is clear and convincing that the licensee, Raymond J. Cascella, maintained the licensed premises for the illegal keeping, selling and delivery of controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Section 893.13(1)(a), Florida Statutes, as alleged in Counts 1-18 of the Second Amended Administrative Complaint, and imposing a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 893.13(7)(a)5, Florida Statutes, as alleged in Count 19 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 823.10, Florida Statutes, as alleged in Count 20 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of an administrative fine in the amount of $250. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002. COPIES FURNISHED: Raymond Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Richard J. Dempsey Qualified Representative 223 Columbia Drive, No. 221 Cape Canaveral, Florida 32920 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Valderrama was certified as a law enforcement officer in the State of Florida by the Commission on September 29, 2004, and was issued Law Enforcement Certificate No. 243605. From September 27, 2004, to November 9, 2007, Ms. Valderrama was employed by the Osceola County Sheriff's Office. On or about October 17, 2007, at approximately 1:00 p.m., Ms. Valderrama reported to the Osceola County Sheriff's Office Administration Building for random drug testing pursuant to the terms of her employment and provided a urine sample under controlled conditions. A lab technician was the only other person in the restroom with Ms. Valderrama during the collection process. Ms. Valderrama provided the specimen by urinating in a sterile, previously unused specimen cup, which she subsequently provided to a lab technician who immediately sealed the sample. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered, or adulterated since the initial collection of the urine sample and had remained sealed and maintained in the chain of custody until unsealed by a qualified laboratory personnel at Total Compliance Network, a licensed drug testing laboratory contracted by Florida Hospital Centra Care to conduct random employee drug screens for the Osceola County Sheriff's Office. The laboratory analysis of Ms. Valderrama's urine specimen was found by qualified Quest Diagnostic's laboratory personnel and a Total Compliance Network medical review officer to be positive for Cocaine metabolites in a concentration of 2046 nanograms per milliliter. The minimum level of detection for Cocaine is 150 nanograms per milliliter. On October 27, 2007, Ms. Valderrama discussed her test results with Dr. Seth Portnoy, the licensed medical review officer for Total Compliance Network. Ms. Valderrama could not provide Dr. Portnoy with any medical reason for the positive test result and did not challenge the positive test results. The procedures and methods employed in the handling and analysis of Ms. Valderrama's urine specimen provided reliable safeguards against contamination, a reliable chain-of-custody, and produced, through gas chromatography/mass spectrometry, a reliable, scientifically-accepted measure of the concentration of Cocaine metabolite in the body. The laboratory standards and practices observed in conjunction with the collection, preservation, shipment, handling and analysis of Ms. Valderrama's urine specimen, for the purpose of testing for drugs, were in conformance with the applicable provisions of Florida Administrative Code Chapter 59A-24 and consistent with the requirements for reliability and integrity of the testing process pursuant to Florida Administrative Code Rule 11B-27.00225. Cocaine is rapidly metabolized by the body and can be usually detected for two to three days after ingestion. Because the minimum detection level for Cocaine is 150 nanograms per milliliter and Ms. Valderrama's test results showed a level of 2046 nanograms per milliliter, it was Dr. Portnoy's expert opinion that the tests results were indicative of ingestion of Cocaine. Dr. Portnoy's opinion is credited. Ms. Valderrama had drunk some herbal tea prior to giving her urine sample. She feels that the ingestion of the herbal tea could have resulted in the positive test for Cocaine. There was no expert testimony to establish that the ingestion of the herbal tea would result in the positive drug test. Additionally, based on Dr. Portnoy's credible expert opinion, the metabolite detected in Ms. Valderama's urine could only result from Cocaine. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Vivian Valderrama violated Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking her certification. DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 9th day of December, 2008.
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),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. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would come back positive or indicate any reason to distrust the drug test laboratory. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and on the label affixed to each specimen bottle is correct." Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for 20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive). Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455. No evidence of any prior disciplinary history was introduced for Officer Barcia.
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 Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation. DONE AND ENTERED this 11th day of January, 2019, 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 11th day of January, 2019.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact General Findings Respondent was certified by the Criminal Justice Standards and Training Commission on April 20, 1988, and issued Certificate Number 16-88-002-01. R at 9,10. Respondent was employed as a law enforcement officer with the Tallahassee Police Department from January 22, 1988, through May 21, 1990. R at 9. Findings of Fact as to Count 1 of Petitioner's Administrative Complaint On or about April 9, 1990, a letter, return receipt requested, was delivered as addressed to the Tallahassee Police Department, Internal Affairs. Lieutenant Al Brown in internal affairs ultimately received the letter. The letter was signed by a "Lisa" with no surname and had a return address of 1012 Basin Street, #207-C, a nonexistent address. R at 97-99. The letter alleged Respondent bought and smoked marijuana on a daily basis and suggested he be drug tested. R. at 99. Lieutenant Brown checked the address of the anonymous "Lisa" once, and never inquired into the fate of the green card. R at 101, 139. After role call on April 10, 1990, Respondent and his supervisor, Sergeant John Kirby, were met by Lt. Brown. Lt. Brown informed Respondent an anonymous call from a black female had come in which accused him of drug abuse, and requested he take a voluntary test. R at 61, 101-102. Respondent was not ordered to take the test or threatened with discipline if he refused. R at 35, 66-67, 103-104. However, at no time was Respondent clearly informed no adverse action would be taken if he refused the test. R at 140. Respondent, although unable to secure any information about this alleged call, readily agreed to a test. R at 35, 66. At the time, the Respondent was unaware how long after use marijuana could be detected in urine. R at 283. At approximately 5:00 p.m. on April 10, 1990, Lt. Brown drove the Respondent to Physician's Care Center on North Monroe where a urine sample was taken. R at 105. The Respondent filled out paper work, disrobed, put on a hospital gown, and was instructed by the nurse how to provide the sample. R at 106. Lt. Brown requested two samples be taken so that Respondent could submit one for independent testing. R at 106. However, no one advised the Respondent how to get the second sample tested because Brown and the other supervisors did not know how to initiate such a cross test. Respondent was given a sample cup by the nurse in the lieutenant's presence, and required to urinate in the cup in front of the nurse and the lieutenant. The Respondent produced 85 cc's urine in the cup and gave the cup to the nurse. The nurse poured the sample into two smaller SmithKline collection cups which she sealed with evidence tape which was initialed by the Respondent along with the various forms. The sample was assigned a unique identification number, 278485T, which was placed upon the sample to be tested for the police department. Each of the cups was placed into a blue SmithKline toxicology bag and sealed with red evidence tape and initialed. The Respondent signed the forms and the bar code number. R at 109, 178, 191. The department's sample was retained by Physician's Care and delivered to a SmithKline courier, who checked the seals and maintained the chain of custody while delivering it to SmithKline's Tallahassee facility. The chain of custody was maintained as the sample was shipped by air to the SmithKline facility in Tampa, Florida. The other sample was given to the Respondent. The department's sample was checked upon arrival at SmithKline's lab and all the seals were intact. Maintaining the chain of custody, the sample was tested on April 11, 1990. R at 184-186. First, a screening test was performed which proved positive for THC, a metabolite created in the body when it metabolizes marijuana. R at 189. Thereafter, a confirmatory analysis of the department's sample of the Respondent's urine was performed using gas chromatography mass spectrometry (GCMS). R at 189. GCMS provides a scientifically reliable test for the presence of marijuana metabolites in urine, which indicates with scientific certainty that the person testing positive smoked marijuana. R at 173-176,192,204-206. The Respondent's urine contained 53 nanograms of THC per milliliter of urine. A second test was then performed which reconfirmed the results of the first test. It showed 58 nanograms of THC per milliliter of urine. The variation in metabolite between the tests is within testing limits, and the amount of metabolite shows marijuana use by the Respondent in the opinion of an expert in such testing based upon these tests. The amount of metabolite is inconsistent with "passive inhalation," although the Respondent did not testify to being present when any individuals were smoking marijuana. R 176-178,193. At the time the drug test was administered to Respondent, no mechanisms for certification of samples and no formal training for collectors of samples was in place, and no evidence was presented on the certification of the technician who took Respondent's sample. R at 198-200. On April 17, 1990, after learning of the Respondent's test results, Lt. Brown, Captain Walter NcNeil, and Lt. Newlin went to Respondent's home, informed him of the positive test results and suspended him from TPD. R at 114. The sample identified as Respondent's showed positive at a level more than three times the cut off level. R at 203. Upon learning of the positive test, the Respondent began to seek a way to have his sample tested. He did not find a facility willing to deal with it until April 25, 1990 when he went to the office of Dr. Esias Lee. Respondent submitted a new urine sample at Dr. Lee's office, and also delivered to the technician the original sample he had given on April 10, 1990. The Respondent also provided a blood sample for testing at his own expense. R. at 227-228. The conditions under which the Respondent gave the sample were not as controlled as they had been at Physician's Care Center, and the technician did not oversee taking of the sample by being present when the Respondent produced the sample. The technician taking the samples indicated she would attempt to submit all samples for testing. R at 227. When Respondent was questioned by Lt. Brown on May 4, 1990, regarding the testing done through Dr. Lee's office, the Respondent thought both the second portion of his April 10, 1990, sample and a new sample taken April 25, 1990, were submitted for testing. R. at 119, 121-122. The second portion of the April 10, 1990, sample had been destroyed because it was old and because the laboratory used by Dr. Lee's office would not accept it. The sample Respondent submitted on April 25, 1990, was sent off for analysis and tested negative. R at 239. The Respondent could have produced a positive test for marijuana use on April 10, 1990, and a negative test for marijuana use on April 25, 1990, if Respondent was only a light user of the drug and had not used marijuana between April 10, 1990, and April 25, 1990. R at 194.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The certification of the Respondent be placed upon probation for two years with the requirement for periodic unannounced drug screening at the Respondent's expense not more than three times per year; and The Respondent be required to advise any employing agency of these proceedings and provide the agency with a copy of the Commission's final order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August 1992. STEPHEN F. DEAN, 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 13th day of August 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1. - 2. Adopted. 3. -13. All relate to the Respondent's job performance which was not at issue except as it might indicate drug use. This evidence was inconsistent with the Respondent's personnel evaluations, with the inference in the drug test that drug use was occasional or light, and was a self-serving retrospective. 14.-18. Adopted. 19. Adopted in part rejected in part as irrelevant. 20.-22. Adopted. 23. Rejected. See paragraph 9 of Recommended Order. 24.-35. Adopted. 36. Rejected. 37.-52. Adopted. 53.-55. Rejected as contrary to more credible interpretation of facts. 56.-57. Adopted. 58. Rejected contrary to more credible credence. 59.-61. Adopted. Respondent's Findings of Facts 1.-11 Adopted. 12. Irrelevant. 13.-16. Adopted. COPIES FURNISHED: Gina Cassidy, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Elise M. Matthes, Esquire 412 Larson Building Tallahassee, Florida 32399-0300 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
