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 is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012.
The Issue Whether the Respondent, Shibor Group, Inc., d/b/a Abundant Life ALF (Respondent or Abundant Life), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed. The Petitioner, Agency for Health Care Administration (Petitioner or AHCA) asserts an administrative fine in the amount of $1,313.00 ($1,000.00 fine and $313.00 survey fee) should be imposed in this matter.
Findings Of Fact The Petitioner is the state agency charged with the authority to regulate and administer laws regarding the operation of assisted living facilities (ALF) within the State of Florida. This authority extends to all matters governed by or complained of in this case. The Respondent operates a six-bed ALF located at 7040 Fillmore Street, Hollywood, Florida. Abundant Life is licensed and is subject to all laws governing the operation of ALFs within the State of Florida. In accordance with Florida law, the Respondent is required to maintain records at its facility so that duly authorized persons from the Petitioner can review the records to assure compliance with the various regulations and rules governing the operation of ALFs. An administrator of an ALF is charged with knowing the pertinent laws and with maintaining the appropriate records to show compliance with such rules and regulations. Sherifat Orukotan is the administrator of the Abundant Life facility in this case. Generally speaking there are two types of surveys performed at an ALF. “Survey” is another word for “inspection” or “investigation.” The first type of survey is a routine review of the facility and a verification of its records to assure compliance with law. These surveys are performed on a scheduled basis for purposes of licensure or relicensure. Typically, before a renewal of a license, the facility is “surveyed.” The Respondent pursues a second type of survey when it receives a complaint regarding the licensed facility. The complaint causes a health facility evaluator to be directed to the licensed facility to review the complaint in the context of the operation of the home. In this case, both of these types of surveys were involved. On February 23, 2004, Mr. Sanders conducted a complaint survey at the facility. This matter involved an 84- year-old resident at Abundant Life who had received a notice on February 12, 2004, that directed her to leave the facility. The notice to this resident provided, in pertinent part, “You are here by given 30days to leave the facility, Starting from 02-12-04.” (Errors in original.) The subject resident required the highest level of care in that she needed assistance with all activities of daily living. She also suffered from an altered mental status that meant supervision and assistance were required. At the time of the survey, Ms. Orukotan was advised that the pertinent provisions of Florida law require a minimum of 45 days' notice to a resident who is being requested to vacate. Ms. Orukotan did not acknowledge knowing the 45-day requirement. The contract forms used by Ms. Orukotan represented a resident would only be provided with 30 days' notice. As a result of the surveyor’s findings regarding this resident, the Respondent was given until March 24, 2004, to correct the violation found on February 23, 2004. When Mr. Sanders did the follow up survey, the Respondent had corrected the problem by extending another 15 days to the resident so that a total of 45 days notice was provided. On December 22, 2004, Mr. Sanders responded to the Respondent in connection with another complaint. This complaint dealt with another resident. The resident, a 62-year-old male stroke victim, was scheduled to leave the facility on December 19, 2004. The resident had paid for accommodations through that date. On December 14, 2004, however, Ms. Orukotan had locked the resident out of the facility. Due to a dispute with the resident over expenses that were claimed to be owed, the administrator did not want the resident to come back into the home. As it happened, the resident’s girlfriend had come to the facility on December 14, 2004, and picked him up. At that time, according to the chart notes for the resident, Ms. Orukotan told the girlfriend she would not let the man back in unless the facility received additional payment. Ms. Orukotan gave the girlfriend the man’s medications and refused to open the door for him when they returned to the home at around 7:15 p.m. Only after police came to the scene did Ms. Orukotan relent and let the resident back into the home. When Mr. Sanders met with Ms. Orukotan regarding the incident, she provided the chart notes that chronicled the events as outlined above. (See Petitioner’s Ex. 6) As a result, Mr. Sanders cited the Respondent for a repeat violation, as he deemed this situation the same as the February 23, 2004, incident. A 45-day notice had not been provided to the resident. This was the second time the Respondent had failed to provide a resident with sufficient notice to vacate. Both of the citations regarding the 45-day notice issue were given as Class III violations. The Petitioner maintains that failure to provide the requisite notice may put a resident at risk for physical or emotional injury. Generally speaking, residents of ALFs are there because they are frail or unable to meet all of their daily living needs without assistance. A discharged resident without appropriate accommodations cannot provide for him or herself. Many residents are elderly or, like the second resident in this case, require assistance while they recover from a medical event. Finding a proper place to reside under these circumstances can prove difficult. The 45-day requirement is to assure that sufficient time is given to the relocating resident. Persons who work in ALFs must be free from tuberculosis (TB). Tuberculosis is a highly communicable disease that is very serious, especially to frail or at-risk populations. In order to diagnose whether or not someone has TB, a person must have some medical evaluation. The most common test for TB is a skin screening. This “TB skin test” is routinely administered and is considered a credible proof of whether a person should be considered a health risk. Unfortunately, the TB skin test does not work, or is inadequate, to provide a credible medical response if the person taking the skin test has ever received a BCG vaccine. The BCG vaccine causes a person to register a false positive on the TB skin test. Accordingly, only a chest X-ray or a sputum test (not relevant to the instant case) could rule out TB under that situation. In this case, because Ms. Orukotan had received a BCG vaccine at some point in her history, she was required to present evidence of a chest X-ray to establish that she was TB-free. In order for Ms. Orukotan’s doctor to document annually that she is free from TB, the administrator must have a chest X-ray every year. This requirement is known to Ms. Orukotan because she had been cited for (and had corrected) this deficiency prior to January 11, 2005. On January 11, 2005, Mr. Sanders requested the valid annual documentation showing that Ms. Orukotan was free from TB. At that time the only report provided to him was a statement from Dr. Siegel that stated Ms. Orukotan was free from “communicable disease.” Ms. Orukotan had not had a chest X-ray within a year of the January 11, 2005, survey date. On January 11, 2005, the administrator did not have any documentation that stated she was free from TB on any date within a year of that time. On January 14, 2005, Ms. Orukotan obtained a TB screening and chest X-ray from Dr. Siegel to document she was free from TB. This documentation was provided to AHCA on the follow-up survey date. Based upon her prompt response, the deficiency cited was deemed corrected. A chest X-ray is not valid for two years to rule out TB. On January 11, 2005, Ms. Orukotan had not had a chest X-ray within two years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order against the Respondent that imposes an administrative fine in the amount of $1000.00 for the repeated Class III violations and a survey fee that equals the lesser of one half of the facility's biennial license and bed fee or $500.00. S DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 11th day of April, 2006. COPIES FURNISHED: Sherifat J. Orukotan Shibor Group, Inc. 6641 Southwest 8th Street Pembroke Pines, Florida 33023 Lourdes Naranjo, Esquire Agency for Health Care Administration Spokane Building, Suite 103 8350 Northwest 52nd Street Miami, Florida 33166 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether Petitioner was subjected to employment discrimination by the Department of Health (Respondent), due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Julie A. Philippart (Petitioner) was born May 12, 1956. Respondent is an agency of the State of Florida with a medical laboratory located in Pensacola, Florida. The director of the laboratory is Dr. John Parker, age When the position of Medical Laboratory Scientist II needed to be filled, Parker delegated responsibility for screening applicants and determining the best applicant to be hired to Dr. Leah Gillis, age 51. Gillis, proceeded with Parker’s approval, to enlist two other fellow employees, Beverly Butler, age 62, and Bill Nakashima, to assist in the interviewing and screening of applicants. Following advertisement of the vacancy and receipt of applications, six of the applicants were selected for an interview. While a step in the process, the subsequent interviews were not completely determinative of which applicant was the best. Petitioner was one of the six applicants interviewed. Gillis and Nakashima interviewed Petitioner. After the initial interviews, Petitioner was considered the primary candidate. Since Petitioner had previously worked in the laboratory during the period 1994-1998, Gillis checked with Parker and Butler about Petitioner’s prior work experience. Further, Butler checked past lab records for work that Petitioner may have performed. As a result of her consultations with Parker and Butler, Gillis developed concerns that Petitioner’s experience and background might not be as ideal as indicated by the interview. Particularly, Butler had expressed concern that Petitioner did not have a hematology license, which was needed in the lab following the resignation of another employee whose licensure in that area previously covered this need for the lab. While still considering Petitioner as an applicant, Gillis resolved to interview other candidates. Through Butler, contact was made with Virginia Winchester, age 50, regarding the position. Winchester had the appropriate hematology license and experience for the position. But, when Winchester was advised that she should get vaccinations for rabies and hepatitis to work in the position, she consulted with her physician and withdrew her application. Stephanie Bubien was another applicant considered for the position. She had the appropriate license and experience, but, because her current employer increased her salary, withdrew her application following offer of the position. Linda Boutwell, personnel liaison for the lab and Star Metcalfe, assistant human resource director, located in Jacksonville and Tallahassee, Florida, respectively, advised Gillis to re-advertise the position. Gillis re-advertised the position. Of six additional applicants for the position, two were granted interviews. Patricia Jones was called in for a second interview. Jones, like Petitioner, is over age 40 and is less than two years younger than Petitioner. Jones had the preferred hematology license and 16 years of “bench” or actual experience. Jones was offered and accepted the position. Age was not a criterion for the position and was not considered in the hiring decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. 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 4th day of January, 2005. COPIES FURNISHED: Julie A. Philippart 303 Washington Avenue Gulf Breeze, Florida 32561 Stephen W. Foxwell, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
Findings Of Fact On November 6, 1978, the University's School of Medicine conducted a written and practical examination in anatomy. The written examination was composed of four sections with Section I consisting of thirty-five multiple- choice questions, Section II consisting of twenty matching questions, Section III consisting of fifteen identification questions, and Section IV consisting of thirty multiple choice. The second part of the examination was known as the laboratory practical. This portion of the test was conducted in laboratory rooms surrounding the morgue. Forty cadavers were displayed in five of these rooms, and on each cadaver various parts of the anatomy were tagged. Each student would have the opportunity to observe a cadaver for approximately one minute, and then would enter on the answer sheet the name of the tagged portion of anatomy or its function, depending upon the nature of the question asked. Then each student would move to the next station and repeat the process until completion of all seventy-five questions. Dr. Hugh M. Hill, Professor of Obstetrics and Gynecology and Associate Dean of the College of Medicine, had, previous to this exam, addressed the problem of student body cheating when he appeared before the freshman class and advised it that cheating would result in dismissal. The University catalog in Part IV, entitled Academic Status, provides for dismissal upon a showing of "lack of integrity." Dean Hill advised the freshman class that cheating constituted a lack of integrity. This provision of the catalog was promulgated as a rule. On the afternoon of November 6, 1978, Dr. Hill was advised by a student that he, the student, was concerned about other students cheating on the anatomy examination. Dr. Hill then proceeded to conduct an investigation of the allegations. During the written examination, two students, Shaun Graser, and Michael J. Huber, both in the School of Dentistry, reported to a professor what they considered to be cheating on the part of Respondents. Mr. Graser was seated directly behind Respondent Lonzia Berry and to the left rear of Respondent Myra Anderson. Graser testified that he saw Respondents looking at each other's papers. Graser did not see any erasures, changes or writings made in connection with either Respondent looking at the other's paper. Mr. Huber, who sat two rows to the left of Respondents during the written portion of the examination, observed chat Respondent Berry had his paper turned so as to expose the left margin to Respondent Anderson. The space provided for answers was located on the left margin of the test. Huber testified that he saw Anderson erasing and changing answers during this time, approximately five minutes, and that he observed each Respondent turning their pages in concert. Huber further reported that he never saw Berry looking at Anderson's paper, nor did he see Berry make any changes. Huber did testify that he saw what appeared to be "signs or signals" between the Respondents used to coordinate the turning of pages. Dr. Lynn T. Romwell, an Assistant Professor of Anatomy, participated in the administration of the written examination. After some students suggested to him that improprieties were occurring in the conduct of the examination on the part of Respondents, Dr. Romwell, during the last half of the examination attempted to ascertain whether the allegations were true. He saw no evidence of cheating on the part of Respondents during that time. During the practical examination, Respondents were observed by students Charles T. Floyd, Douglas Andrews, and Harry Herzog. Floyd testified that during the practical examination he observed Berry look at Anderson's paper at two or three cadaver stations while the Respondents were at adjacent tables. Floyd saw no erasures or changes but did observe Berry writing after looking at Anderson's paper. The witness did not notice Anderson looking at Berry's paper. Andrews observed Berry looking at Anderson's paper during the practical examination but did not see any answers being changed. He did, however, see writing after Berry viewed Anderson's paper. Yet in a prior statement, witness Andrews stated that the conduct that he observed in Berry was not, in his opinion, "premeditated." Student Herzog testified that during the practical examination he observed Berry look at Anderson's paper and then write on his examination sheet more than one time. Herzog further testified that he saw Anderson hold up her test paper towards Berry. Dr. Philip A. Fields, a Post-Doctoral Fellow in Anatomy, monitored the practical examination in the same room in which witness Herzog observed Respondents' improprieties. Fields saw Berry look at Anderson's paper at several stations. Berry's conduct consisted of more than a casual glance, and was sufficient to catch Field's attention. Fields did not see any erasures or corrections or entries made after Berry looked at Anderson's paper. A number of professors, however, testified that they observed no improprieties on the part of Respondents during the practical portion of the examination. W. J. Sanders, Sr., Director of Minority Affairs and Professor of Anatomy, testified that he watched the Respondents with "eagle eyes" and observed no cheating. Dr. Don Cameron, another faculty member who had been warned that Respondents might be cheating, observed them for some thirty minutes and saw no questionable activity. Professor Lynn H. Larkin and Professor J. E. Loftin saw no improprieties during the practicum, although they were looking for them. The University produced the testimony of Dr. Cary Kilpatrick, Director of Health Systems Research, relating to a statistical analysis of certain answer patterns common to the Respondents. Dr. Kilpatrick concluded that the eight wrong answers common to both Respondents on the written portion of the exam would occur by chance, one in ten million times. No statistical analysis was done as to other portions of the examination answers such as dissimilar wrong answers or correct answers common to both papers. While this evidence was offered as proof of cheating, it is specifically rejected as having no probative value. The statistics merely establish the obvious; that Respondents did not select their answers by chance. All would probably agree that the Respondents were attempting to select the right answer for the test and that it would be absurd to do so by chance. It should be noted that the test papers also included dissimilar wrong answers, but no analysis of those was accomplished. Certain specific answers deserve scrutiny in this case. Both Respondents incorrectly answered question No. 5 on the practicum as "Posterior Nasal Arteries." Although there exists such an anatomical feature, it was not lectured on at the University and it would be exceedingly difficult to locate on a cadaver. Both Respondents also incorrectly answered question No. 74 on the practicum as "First Cervical Loop." There is no such designated feature in human anatomy. Both of these answers are concluded to be implausible and unreasonable wrong answers consistent with plagiaristic conduct. Each Respondent confidently testified that a fellow student, Sidell Barnes, had also answered question No. 74 as "First Cervical Loop," but Ms. Barnes testified that she answered it as "Cervical Plexis C-1." In summary, five students and one professor testified that the Respondents engaged in an improper exchange of information during the written and practical portion of the test. There is no evidence of record to establish that any of this testimony was biased or based on inaccurate observations. Further, the two implausible and unreasonable wrong answers furnished by Respondents, being consistent with plagiaristic conduct, are strong cumulative evidence of misconduct. It is found as a matter of fact that Respondents, by exchanging information during the conduct of the anatomy examination were guilty of cheating.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was employed as a cabin services attendant by the Respondent, Aircraft Service International, Inc., at the Tampa International Airport. For the most part, he was working the 8:00 PM to 5:00 AM shift. Petitioner started working for Respondent in October, 1988. His duties were to maintain both the inside and outside of commercial passenger aircraft, the owners of which had contracted with Respondent for their cleaning, servicing and supply. When he was first hired by Respondent, Petitioner was given training in the requirements of his duties by video tape. The language used was English and Petitioner is not fluent in English. Nonetheless, he was able to understand the requirements of his job from observing the video and what was depicted thereon. The duties did not change over the approximately 4 years he worked for the Respondent. Petitioner claims that the majority of his duties were outside the aircraft. At the time of his employment, Petitioner was also furnished with several documents, all of which were in English, and none of which did he understand. He signed them all, however, on the recommendation of his friend who had brought him to the company and assisted him in getting the job. Other documentation was explained to him by Mr. Goerbelini, one of his supervisors. At no time, however, did Petitioner feel comfortable with the use of English, and he relied upon others to explain to him what he was signing when any documentation was given to him for signature. Petitioner claims that throughout the entire period he was employed by Respondent he was never late for work. Notwithstanding that claim, Petitioner admitted having received one counselling form and one letter of warning, both of which, it appears, referred to his continuing tardiness and absenteeism. The absenteeism did not begin, however, until toward the end of his employment. Company records show that during 1990 he was absent only 5 days, all of which were sick days. In 1991 he was also absent for 5 sick days. In 1992, however, he was absent 22 days, of which 14 are reflected as sick days, and this was prior to his termination from employment in September, 1992. Petitioner claims that he had no trouble with his coworkers and was satisfied with his job. His performance was described as adequate when he was on duty, and he was never disciplined for improper performance of his duties. In June, 1992, however, after Petitioner had experienced several episodes of dizziness and sleepiness on the job, he went to see Dr. Santayana, an internal medicine specialist, who, after testing, determined that Petitioner was suffering from the onset of diabetes which, the doctor felt, could be treated and controlled by diet. He so advised the Petitioner. The first visit was on June 25, 1992. On August 10, 1992, Petitioner returned to the doctor, having lost 10 pounds, and reported he felt "much better." Again, on September 11, 1992, Petitioner reported to the doctor he had lost an additional 6 pounds and felt "great." Petitioner did not return to see Dr. Santayana after that visit, however. Petitioner claims that while he was suffering the symptoms of his onset diabetes, he would become dizzy, sometimes while he was driving service equipment around aircraft or while he was climbing the 21 or more feet of an entrance gateway in order to service the plane. When he reported this to Mr. Goerbelini, he asserts, he was advised to go home and stay there until he felt better. He did this, but Dr. Santayana indicates there was no medical reason for Petitioner to remain away from work and at no time did he indicate to Petitioner it was necessary for him to do this. On one occasion, Petitioner requested a physician's statement testifying to the diabetic condition, which the doctor provided. On several other occasions, Petitioner requested notes from the doctor that it was all right for him to return to work, and on both occasions, the doctor obliged. On neither, however, did he indicate the reason for Petitioner's absence though Petitioner asserts it was because of his diabetic condition. Petitioner claims he delivered not only the physician's written diagnosis of diabetes but also the two return to work excuses given him by the doctor to Ms. Amorelli, the secretary in the office. She, however, has no recollection of ever having received them, though it appears the work excuses were in the company records. They were not introduced into evidence, however. It appears that the discharge of Petitioner was predicated upon his absenteeism and his tardiness. The company documentation supporting this was not offered into evidence. Testimony of Respondent's witnesses, nonetheless, appears to indicate a repeated period of tardiness, most of which, however, are indicated as being no more than one or two minutes in duration. Petitioner, while denying he was ever tardy, nonetheless indicated that he was shown to be tardy because when he would appear at work to clock in on time, he was not allowed to do so before the regular start of work time. As a result, all shift workers, some 8 to 10 people, were attempting to clock in at the same time. This was impossible, and some, including Petitioner, were, perforce, late. The clock records were not offered, however, and it is difficult to determine the exact number of tardinesses or when they occurred. However, the company witness indicated that Petitioner was late 18 times in 1990, 31 times in 1991, and 8 times in 1992 until his discharge on September 10. There is also some evidence, and Petitioner admits, that while he was working for Respondent, he was also detailing automobiles for extra income. Dr. Santayana indicated that Petitioner's condition should not have any impact on his use of equipment. The diabetes was to be controlled by diet, not medication. At no time did the doctor ever tell Petitioner not to work with the equipment. So long as the diabetes was controlled and did not result in either drowsiness or dizziness, there was no reason that Petitioner could not work. It would appear from the doctor's testimony and records, that the diabetes was being satisfactorily controlled by diet since Petitioner reported his condition had improved and his health was much better. In any case, his diabetes would not have required any special work accommodation. Petitioner alleges that on one visit to the doctor he was advised to remain home from work, but the doctor denies ever having told him this. Petitioner reports that while his diabetes was a problem, he went to Mr. Goerbelini and requested a change to the day shift. He never received it. Petitioner also allegedly reported his condition to a Mr. Rodriguez and to several of his coworkers, yet testimony of the witnesses called by Respondent indicated neither of these ever reported they were aware of his condition. Mr. McClure, the station manager, at no time was made aware of Petitioner's physical problems. He first found out Petitioner had diabetes when he learned the EEOC complaint was filed. Of the more than 200 employees Respondent has at its Tampa operation, approximately 40 percent are Latin. Of the balance, approximately 15 percent are African American and 45 percent are Caucasian. Seventy percent of those who do the type of work done by Petitioner are Latin. Nonetheless, all operations manuals are in English and Respondent has a requirement that all people who work for it at this installation must be able to speak and understand English. This is predicated upon safety conditions and the requirements of at least one of the carriers whose planes are serviced by Respondent, who requires employees working on its aircraft be conversant in English. The written job description also requires familiarity with English. Though Mr. McClure did not hire Petitioner, he is satisfied the procedures in this case, requiring a demonstrated ability to use and understand English, would have been followed in Petitioner's case as they have been in the past. Respondent is familiar with and complies with the requirements of the Americans with Disabilities Act and the Florida Civil Rights Act. Mr. McClure has notified his supervisors that any employee claiming a disability should be brought to his attention personally so that, if possible, an accommodation can be made for that handicap. This is done routinely, and at the present time, there are several employees, many of whom were hired as early as the late 1960's, whose handicaps are accommodated by the Respondent. Respondent contends, and there is no evidence to show it not to be true, that its requirements, rules and regulations dealing with tardiness, absenteeism, and the requirement to be conversant in English are uniformly applied throughout and across the work force. Other employees have been counselled for tardiness and some have been discharged because of attendance problems including tardiness. Notwithstanding Petitioner's claims that he was not counselled regarding his tardiness, Mr. Wells indicates he had discussed Petitioner's tardiness and absenteeism, along with other employees, with Mr. Goerbelini. The latter counselled the Petitioner and this was memorialized on counselling forms, but it is important to note that Petitioner was not the only person being counselled for attendance problems. He was warned in both English and Spanish that his job was in jeopardy, and when his attendance did not improve after the warnings, he was terminated. Notwithstanding the appearance of the doctor's return to work notes in Respondent's records, Mr. Wells indicates that at no time did Petitioner give any explanation for his absences, other than that he was sick. None of Petitioner's drowsy or dizzy spells were brought to his attention. Had he been told that Petitioner's condition was hazardous to him or other workers, they would have found other work for him to do until he improved. Mr. Wells indicates he had difficulty speaking with Petitioner because of language, but after Petitioner was trained, it was clear he spoke enough English to do the job required of him. Wells did not know of Petitioner's diabetes until after he had been fired. Neither Petitioner nor anyone else had brought that information to his attention. Ms. Amorelli was the person who dealt primarily with Petitioner when he would come to work, other than his supervisor. She conversed with him primarily in Spanish since he had difficulty expressing himself in English. Nevertheless, she is satisfied he understood English. When the first written counselling regarding Petitioner's absenteeism and tardiness was completed, she gave it to him to read and he did so. She is satisfied he understood it. The second warning, which was also in writing, was given to him to read and he appeared to understand it as well. She did not receive the discharge statement nor the doctor's undated letter of diagnosis. By the same token, she asserts Petitioner never discussed his illness with her nor did she know he had been diagnosed as having diabetes. According to company policy, when an employee is ill and not going to come to work, he or she is supposed to call her or, in her absence, the immediate supervisor. At no time did Petitioner ever call her about an absence. Her duty hours were usually inconsistent with his, however. She does not know if he called his immediate supervisor. All of Respondent's witnesses testified that while a lateness of one minute would not result in discharge, continued and repeated lateness does, and though other employees were disciplined and ultimately discharged for tardiness, Petitioner stands out, in Ms. Amorelli's mind, as being late more than most employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Jorge Pacheco's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of handicap be denied. RECOMMENDED this 23rd day of March, 1994 in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1994. COPIES FURNISHED: Norman A. Palumbo, Esquire Post Office Box 10845 Tampa, Florida 33679 Terry Rinehart Qualified Representative Aircraft Service International, Incorporated 8240 NW 52nd Terrace, Suite 200 Miami, Florida 33165 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY 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 7th day of September, 1990.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
