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 Should discipline be imposed against Respondent's license as a limited surety agent for violation of Section 648.45(2)(a) (e), and (k), Florida Statutes (2006)?
Findings Of Fact On January 6, 2003, DFS issued Respondent a series 2-34 limited surety agent (bail bond) license. That license remains valid. On May 3, 2006, in State of Florida vs. Vincent Lamone Addison, in the Circuit Court, 14th Judicial Circuit of the State of Florida, in and for Gulf County, Case No. 06-0107CF, Respondent was charged by information with: Count I, Possession with intent to sell/deliver within 1000 feet of place of worship or convenience business; Count II, Possession of marijuana in excess of 20 grams, offenses contrary to Section 893.13, Florida Statutes (2005), third degree felonies. In the same information, in Count III, it was charged that he did obstruct (an) officer without violence, a violation of Section 843.02, Florida Statutes (2005), a first degree misdemeanor. On December 18, 2006, the assistant state attorney in Circuit Court Case No. 06-107CF, filed a Motion to Consolidate, asking that the Court enter an order consolidating the count for possession of a controlled substance with intent to deliver, with the count related to possession of more than 20 grams of marijuana. On December 19, 2006, in Circuit Court Case No. 06- 107CF, a Plea, Waiver and Consent was signed by Respondent as defendant in that case, attested by his counsel and the assistant state attorney, and found by the Circuit Court Judge to be a plea freely and voluntarily made and sworn to and subscribed before the court and approved and accepted by the court related to possession of marijuana, a third degree felony with a statutory maximum imprisonment of five years. The plea was made upon the agreement that the adjudication be withheld, with service of three-years' probation, to terminate after 18 months if all conditions were complete and no violations of the probation had occurred. In addition, by order of the Circuit Court Judge, certain charges/costs/fees were imposed in Circuit Court Case No. 06-107CF. When Respondent executed his Plea, Waiver and Consent in Circuit Court Case No. 06-107CF, it reflected that the charge of "Obstruct officer without violence" had been stricken by line and initials provided, by what appears to be the defense counsel and the assistant state attorney in the case. In Circuit Court Case No. 06-107CF, as reflected in an order by the Circuit Court Judge referring to those proceedings, entered December 19, 2006, upon his appearance before the Court with representation, it indicates a plea of nolo contendere was entered. It pertained to Count I. On the form order, it refers to "Sales/Del/Poss/cannis-w/in-100Ft. Church 893.13(1)(a) 3F." Under that reference is found "Poss. Marijuana in Excess 20 grs. 893.13(6)(a) 3F". The numbers refer to Section 893.13(1)(a) and (6)(a), Florida Statutes (2005), and "3F" refers to third degree felony. In this order it was reflected that the adjudication of guilt was withheld, and that the defendant received three-years' probation, to terminate after 18 months upon satisfaction of conditions of probation. The court order refers to fees required by the court to satisfy its terms for accepting the plea. On December 21, 2006, in Circuit Court Case No. 06- 107CF, the Circuit Court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on probation. In this order it reflects entry of a plea of nolo contendere to the offense of "Possession of more than 20 grams, 3rd-Degree Felony," for which the Respondent received three years of probation. Other conditions of the probation were reflected in this order, to include the costs and fees imposed by the Court. On January 12, 2007, precisely the same order was entered by the Circuit Court Judge. In addition to the nolo contendere plea in Circuit Court Case No. 06-107CF, Respondent in his testimony at hearing in the present case, acknowledged that the drug offense took place in Port St. Joe, Florida. He was arrested on April 21, 2006. Respondent did not contest the charges because marijuana was found on the console of his car and some was in his front pocket. Respondent's understanding of his nolo contendere plea was that it was to possession of marijuana exceeding 20 grams. The amount was somewhere in the range of 118 to 120 grams. In the present case, Respondent through his testimony, explained that he had been diagnosed with lupus and that he smoked marijuana to help his body function while confronting his disease. Respondent is aware that possession of marijuana in Florida is illegal, even if intended for the purpose he had in mind to provide him relief from the pain of lupus. Respondent is not acting in the capacity of a bail bond agent at this time. That loss of income has had significant impact on his earning capacity. Mr. Tynalin Smiley, who resides in Port St. Joe where the Respondent lives, has known the Respondent from the time Respondent was born. They are good friends. Mr. Smiley belongs to the same church as Respondent. He visits in Respondent's home at times. He believes that Respondent is a respectable person in the community. Mr. Robert Humphrey, who resides in Dothan, Alabama, met Respondent in 1996 when Respondent did an internship from Troy State University. Mr. Humphrey and Respondent worked in the area of juvenile justice, going into schools and providing counseling to students. Over the years Mr. Humphrey has kept in contact with Respondent. Occasionally Mr. Humphrey and Respondent are together socially. They go out to dinner. Respondent has attended Mr. Humphrey's church. Mr. Humphrey looks upon himself as being a big brother to Respondent. Mr. Humphrey has observed that Respondent remains active in the Respondent's community. Mr. Humphrey believes that Respondent regrets his choice that led to the action against him, that involving the marijuana possession that has been discussed.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered Respondent in violation of Section 648.45(2)(a), (e) and (k), Florida Statutes (2006) and revoking Respondent's limited surety agent (bail bond) license. DONE AND ENTERED this 27th day of July, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of July, 2007. COPIES FURNISHED: William Gautier Kitchen, Esquire Gregg Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Vincent Lamone Addition Post Office Box 483 Port St. Joe, Florida 32457 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The capitol, Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995.
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d),(g), or (j), Florida Statutes (2012), or Florida Administrative Code Rule 6A-10.081(5)(a). If any violations are found, it must be determined what penalty should be imposed for the violation(s).
Findings Of Fact Respondent holds State of Florida Educator?s Certificate number 944511, valid through June 30, 2014, authorizing her to provide instruction in both elementary education and exceptional student education. Respondent is also licensed as a nurse by the State of Florida, although her license number was not introduced into evidence. Respondent has resided in Pensacola, Florida, for approximately six years. Respondent has never taught school full-time. Between December 2011 and August 2013, Respondent was a substitute teacher at the United Cerebral Palsy “Capstone Academy” in Pensacola, a pre-kindergarten program where she worked with special needs children. During that same time frame, Respondent also substituted at various schools in the Escambia County School District. From approximately March 2013 through the present day, Respondent was also employed PRN (i.e., “as needed”) as a nurse with Consulate Health Care. In January 2012, Respondent began working as a substitute teacher at Lincoln Park Elementary School (Lincoln Park) in the Escambia County School District. In February 2012, Respondent was offered a position as a Long-Term Substitute (LTS) teacher with Lincoln Park.1/ On March 5, 2012, while working at Lincoln Park, Respondent was notified that she must submit to a pre-employment drug screening.2/ Respondent testified that she went to the lab for the drug screening the same day she was informed of the requirement while at work. Respondent?s urine specimen was collected at 3:15 p.m. on March 5, 2012, at LabCorp Patient Service Center, 3437 North 12th Avenue, Pensacola. Respondent?s urine tested positive for amphetamines. On March 13, 2012, Lincoln Park Principal Christine Nixon notified Petitioner that her urine test was positive, that she needed to report to the Escambia School District Office, and that Petitioner would not be allowed to return to Lincoln Park until Petitioner heard further from Human Resources (HR). Respondent reported to the District HR office at approximately 2:55 p.m. on March 13, 2012. At the HR reception counter, Respondent requested to speak with someone regarding her drug test results. Dr. Kylie Henderson, Confidential Human Resources Administrative Specialist, invited Respondent into her office, and informed her that both Dr. Keith Leonard, Director of Human Resources, and Mr. Kevin Windham, Director of Risk Management, were unavailable. Dr. Henderson offered to take Respondent?s information and leave a message for Dr. Leonard to contact Respondent. Respondent?s meeting with Dr. Henderson was brief, but Dr. Henderson clarified for Respondent that she could not return to Lincoln Park until she received clearance from either HR or Risk Management. Respondent did not receive a call from Dr. Leonard or anyone else from either HR or Risk Management on either March 13 or 14, 2012. Respondent was anxious to speak with someone regarding her drug screen results. Respondent contacted HR again on March 14, 2012, and spoke briefly with Dr. Scott, Assistant Superintendent for HR Services. Dr. Scott referred Respondent to Mr. Windham. Respondent was transferred to Mr. Windham?s voicemail, where she left a message. Respondent did not receive a return call from Mr. Windham. On March 15, 2012, Respondent sent an email to Mr. Malcolm Thomas, Superintendent of Escambia County Schools, complaining that his staff was not returning her calls and requesting a call from someone with his office. On March 16, 2012, Dr. Scott answered Respondent?s email on behalf of Mr. Thomas. He explained that unless Respondent produced a prescription for the medication for which she tested positive, or successfully contested the urine screen test, the School District would have to treat it as a positive result and withdraw the employment offer.3/ By letter dated March 15, 2012, from Bill Threadgill, Coordinator of Human Resources Management, Respondent was notified that based upon the results of her pre-employment drug screen she was not eligible for employment with Escambia County Schools.4/ Education Practices Commission On or about April 13, 2012, the Escambia County School District reported Respondent to the Department of Education (DOE), Professional Practices Services, which prompted the instant action against Respondent?s Educator Certificate. Respondent responded to the allegations of misconduct brought by Professional Practices Services in a letter dated April 21, 2013, to Ms. Lambeth, Chief of Professional Practices Services for DOE?s Bureau of Professional Practice. On May 15, 2013, Respondent filed an Election of Rights requesting a formal hearing. Meeting with Dr. Henderson The dispute in this case centers on statements Respondent made during her meeting with Dr. Henderson on March 13, 2012, at the Escambia District HR Office. Dr. Henderson took notes during the brief meeting with Respondent in order to pass on to Dr. Leonard an accurate account of Respondent?s request for a meeting with him. On a message pad, Dr. Henderson noted that Respondent had come to see Dr. Leonard at the direction of Lincoln Park Principal Nixon following the results of her positive drug screen. The message asks Dr. Leonard to call Respondent to give her further direction. After Respondent left her office, Dr. Henderson made a written account of the meeting. Dr. Henderson felt documentation was necessary as Respondent?s behavior was indicative of someone under the influence of a substance. In her written statement, which was corroborated by her testimony at final hearing, Dr. Henderson described Respondent as “extremely jittery and agitated” and noted that Respondent continually shifted in her seat, spoke very rapidly, stuttered and stammered, and repeatedly picked up and replaced her purse on the floor beside her. Dr. Henderson recounted that Respondent explained she knew what drug she had tested positive for, and that she took her son?s Adderall “every now and then” for weight loss, “to keep from eating.” At final hearing, Respondent admitted telling Dr. Henderson that she knew the identity of the drug for which she tested positive. However, Respondent denied that she identified the drug as Adderall or that she took the drug intentionally. Respondent further takes issue with Dr. Henderson?s account of her behavior, denying that she was jittery or agitated, that she spoke rapidly, shifted in her seat, or repeatedly moved her purse. Credibility Respondent?s testimony that she did not identify the drug to Dr. Henderson is undermined in several ways. First, in Respondent?s letter to Ms. Lambeth, Respondent stated that she had admitted “to the District” that she took one of her son?s Adderall. At hearing, Respondent authenticated the letter and the signature as her own. In her Election of Rights, Respondent stated: “The Petitioner states on pg.2(5) that I admitted to the district?s official that I told her that I took the Adderall. I told her that I took it by mistake on that day, and I reiterated it on the 21st of April when I addressed the office of professional practices services.” Respondent?s own testimony at final hearing conflicted on this point. On cross-examination, after repeatedly testifying that she did not recall telling Dr. Henderson the name of the medication she had taken, she testified as follows: Q. That?s what you said under oath in your direct testimony sitting in that chair. You didn?t say what the drug was. You said, took one of my son?s medications, right? A. Yes, I said that. Q. You didn?t identify to her, accidentally to my son?s Adderall? A. Yes, I did. I did identify that to her.[5/] Further, when Respondent was deposed on September 4, 2013, she denied having taken Adderall at all during the time she worked at Lincoln Park.6/ Dr. Henderson?s testimony that Respondent identified Adderall as the drug for which she tested positive during her meeting with Respondent on March 13, 2012, is accepted as credible and reliable. Respondent?s position, at final hearing, is that she took her son?s Adderall by mistake and that it was a one-time occurrence. She flatly denied that she has ever taken Adderall to curb her appetite or assist in weight loss. Respondent represented on many occasions that she took the Adderall by mistake: in her March 15, 2012, email to Superintendent Thomas when expressing her frustration with lack of response from his staff; in her March 16, 2012, email to Mr. Windham explaining that a split screen test would have the same results as her first urine screening; in her letter to Ms. Lambeth, dated April 21, 2012, in response to the Commission?s allegations of misconduct; in her Election of Rights dated May 13, 2013; and throughout her testimony at final hearing. Incredulously, at final hearing Respondent made no effort to explain how she took the Adderall by mistake. Respondent was clearly incensed by the lack of communication from HR following her meeting with Dr. Henderson. She repeatedly stated that she just wanted a chance to explain herself and that she thought she would have a chance to “clear up” the mistake. However, when presented with an evidentiary hearing of her choosing, and the opportunity to present the facts as she wanted them found, she made no effort to explain the mistake. She did not offer any facts about where the Adderall was kept in relation to any medication she might have been taking, the time of day to be administered, or any other details to explain the “mistaken” ingestion of Adderall. In fact, Respondent testified that her son, who did live with her in February and March 2012, was not even on any prescription medications at the time. Specifically, she testified, “My son is not even on Adderall. He was on that a long time. And I was keeping them in case I thought he had to go back on the medication.”7/ Respondent?s testimony that she was simply keeping the medication for her son does not support her theory that she took the Adderall by mistake. More importantly, Dr. Henderson testified credibly that Respondent did not mention to her during the meeting with Respondent on March 13, 2012, anything about taking Adderall by mistake. Dr. Henderson?s testimony and written statement were clear that Respondent told her she took the Adderall intentionally, and does so occasionally to lose weight and control her appetite. Dr. Henderson?s testimony is accepted as credible and reliable. Respondent accuses Dr. Henderson of fabricating her written account of her meeting with Respondent on March 13, 2012. No evidence was introduced to support that accusation. Dr. Henderson had never met, seen, or spoken to Respondent prior to the meeting at HR on March 13, 2012. Dr. Henderson had no information from any source regarding Respondent prior to March 13, 2012, when Respondent presented at HR to discuss her test results with someone. Respondent offered no explanation for why Dr. Henderson would fabricate her written account of their meeting. In short, there was no evidence of a motive for Dr. Henderson to make up the facts in her written statement. Respondent argues that her theory that Dr. Henderson fabricated the account is supported by the fact that Dr. Henderson?s written message to Dr. Leonard is so short and includes none of the details about her behavior or the name of the medication taken. Respondent alleges that had Respondent admitted to abusing prescription medications and behaved erratically in her presence, Dr. Henderson would have included those details in the message to Dr. Leonard. Respondent?s theory is not supported by any evidence. The message to Dr. Leonard was taken on a form message pad which includes space for identification of the caller or visitor, their phone number, and the reason for their call, followed by a series of boxes from which the message-taker may choose, such as “telephoned,” “returned your call,” “came to see you,” and “will call again.” The form includes only the briefest of lines for a message to the recipient. In the limited space provided for a message, Dr. Henderson wrote “Urine test 2 weeks ago came back positive. She was contacted by the lab and her principal sent her to HR. Can?t return to LPES until cleared. Needs to know what to do.” The message does not include details about Respondent?s behavior or statements concerning the drug for which she tested positive. Contrary to Respondent?s argument, the undersigned does not infer from the facts that Dr. Henderson fabricated the more detailed statements concerning Respondent made shortly after the meeting concluded. Ultimate Facts Petitioner proved by clear and convincing evidence that on March 5, 2012, Respondent tested positive for amphetamines, a controlled substance for which she did not have a prescription. In the heat of the moment when faced with her positive test results, Respondent admitted to Dr. Henderson that the medication belonged to her son, that she took the medication intentionally, and that she does so occasionally. Subsequent to her admission, Respondent misrepresented the facts to the School District, the State Education Practices Commission investigator, and while under oath in deposition and in this forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 102.795(1)(g) and (j), as well as rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent?s certificate for a period of 12 months; and upon employment in any public or private position requiring an educator?s certificate, place her on probation for a period of two years on such terms as the Commission deems advisable. DONE AND ENTERED this 2nd day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2013.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1992.
The Issue Whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate No. 301820. Respondent has been employed by the Jefferson County Correctional Institution for the past year and a half. During that time, he has submitted to periodic random urinalysis testing as part of his employment. While at work on February 21, 2013, Respondent was informed that he had been selected for a random drug test. He and several other correctional officers were transported by van to LabCorp, located on Blountstown Highway in Tallahassee, to provide a urine sample. Tairra Wolfe is a certified phlebotomist who is employed by LabCorp at the Blountstown Highway location. In addition to being a phlebotomist, she performs DNA and drug testing, as well as processing. Ms. Wolfe described the process that is used at LabCorp when a person comes in for drug testing. First, the person being tested (the donor) brings in a consent form from his or her employer, and signs the consent form. The donor is then taken to the back, where the donor is given a cup for the urine specimen and is then instructed to go into the bathroom to provide a urine specimen in the cup. The tester is not in the bathroom when the specimen is given. After coming out of the bathroom, the donor hands the cup containing the urine specimen to Ms. Wolfe. She then tells the donor to use hand sanitizer, and to wait there. In the presence of the donor, she pours the urine specimen into another container, seals that container, and puts labels over the container. The container is sealed in front of the donor with tape that prevents the specimen from being opened without breaking the seal. Ms. Wolfe then labels the specimen and has the donor initial and date it in front of her. The seal contains a bar code. Respondent’s specimen was assigned a specimen ID of 0582899940. Ms. Wolfe then places the sealed container in a bag, which is also sealed and labeled with the specimen number and bar code, and which is also tamper resistant. The bag containing the specimen is placed in a large box in the processing room. This box is sealed at the end of each day and is picked up by a LabCorp courier. Lastly, the donor signs the chain of custody form in the section entitled “Completed by Donor.” Ms. Wolfe also signs the chain of custody form in the section entitled “Completed by Collector.” The section of the chain of custody form entitled “Completed by Donor” states in part: I certify that I provided my urine 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 provided on this form and on the label affixed to each specimen is correct. The chain of custody form for the urine specimen which is at issue in this proceeding is signed by both Ms. Wolfe and Respondent. Respondent’s specimen was transported to a LabCorp forensic drug testing laboratory in Southhaven, Mississippi. Ajai Saini is the lab manager at the Southhaven laboratory. He is responsible for all of the administrative and technical decisions to ensure the quality and timeliness of the laboratory results. He has extensive professional experience in the field of toxicology. The specimen was assigned a unique specimen ID or accession number used to identify that specimen for all processes within the laboratory. The specimen ID labeled as Respondent’s was assigned a specimen ID number of 0582899940. When received by the Southhaven lab, the primary specimen bottle seal was intact. The lab accessioned the bottle into their storage and aliquoted a sample of that bottle for testing. The urine sample was analyzed by LabCorp and a report was generated. The specimen was screened and confirmed positive for both marijuana and cocaine. This result was reviewed and certified. 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. In examining the test results for the sample identified as Respondent’s, Mr. Saini concluded that it tested positive for cocaine and marijuana metabolite. Respondent does not dispute the test results but rather asserts that the samples were mixed up in the Tallahassee LabCorp facility. Respondent testified at hearing that he had been tested several times before but that his experience on February 21, 2013, was different from previous testing days. In particular, there were many more correctional officers being tested that day than on previous occasions, and the process varied from those previous occasions. Typically, the officers signed in at the front counter, and did not sign anything else until later. Respondent asserts that because of the greater number of officers being tested, the officers were given the labels to sign at the front counter before going back to be tested. “I didn’t sign my label because I have already previously signed it out front.” Respondent believes that the urine which tested positive is not his. On cross examination, Ms. Wolfe continued to maintain that the process she described in her testimony is the process she uses every day. She did not recall any variation in this process on any day, and stressed the importance of the donor watching her pour the sample and seal it, and of her watching the donor sign the label and chain of custody form in front of her. While the undersigned found Respondent’s testimony to be credible, it alone was not enough to overcome the clear and convincing evidence presented by Petitioner. That is, that the sample identified as Respondent’s tested positive for illegal substances. Respondent asserts that all previous random drug tests he has taken have been negative, and that he has a good employment record. No evidence was presented to indicate otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Code Rule 11B-27.0011(4)(d). It is further recommended that Respondent’s certification be suspended for a period of 120 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 27th day of January, 2014, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 27th day of January, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Curtis R. Brungardt (Address of record) 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 Petitioner is entitled to receive an exemption from disqualification to work in positions of special trust.
Findings Of Fact In November 1999, Petitioner was employed by Angels Unaware, Inc., as a caretaker of children or the developmentally disabled. Such a position is a position of trust. By letter dated November 29, 1999, Angels Unaware, Inc., notified Petitioner that it had received information that was disqualifying and, thus, he was ineligible for continued employment as a caretaker of children, disabled adults, or elderly persons. However, in the letter, Petitioner was advised of his right to seek an exemption from disqualification from the licensing agency. Thereafter, Petitioner requested an exemption from disqualification. At all times, pertinent to this proceeding, Respondent was the state agency responsible for receiving and approving or denying applications for exemptions from disqualification to work in a position of trust. After receiving Petitioner's request for exemption, Respondent conducted the required background screening of Petitioner. The background screening revealed that Petitioner had been arrested and convicted of possession and delivery of cocaine. As a result of Petitioner's conviction, Respondent denied Petitioner's request for exemption. According to the background screening report, Petitioner was convicted of possession and delivery of cocaine on April 2, 1996. The incident that resulted in the conviction occurred on or about January 20, 1995, the day Petitioner was arrested. Following his arrest, Petitioner was charged with possession and delivery of cocaine. On May 1, 1995, Petitioner pled guilty to the aforementioned felony. That same day, the court withheld adjudication and placed Petitioner on probation for one year. Pursuant to condition 7 of Petitioner's probation, he was not to use or possess any drugs or narcotics unless prescribed by a physician. Notwithstanding this proscription, on or about September 24, 1995, November 14, 1995, and March 3, 1996, Petitioner violated this condition by using cocaine as evidenced by positive urinalysis and his own admission. As a result of Petitioner's repeated use of cocaine, on April 2, 1996, Petitioner was convicted of violating his probation and was adjudged guilty of possession and delivery of cocaine, the charges for which adjudication had been initially withheld on May 1, 1995. Moreover, Petitioner's one-year probation was revoked and he was placed on drug offender probation for two years. One of the special conditions of the drug offender probation was that Petitioner receive drug treatment until he successfully completed such program. On or about May 15, 1997, Petitioner again used and possessed cocaine in violation of the Order of Drug Offender Probation. Following this violation, on July 17, 1997, the court entered an Order of Modification of Probation. Pursuant to that Order, Petitioner's probation continued under the previous terms and conditions but Petitioner's cost for supervision was waived while he was receiving in-patient drug treatment. Petitioner entered a six-month in-patient drug treatment program in June 1997 and successfully completed the program on December 22, 1997. The court terminated Petitioner's probation on April 1, 1998. At the hearing, Petitioner acknowledged that his using cocaine was a "mistake" and stated that he has been drug-free since June 1997, when he began the six-month drug treatment program. However, Petitioner presented no other witnesses or evidence of his rehabilitation during the two years since his probation was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order denying Petitioner's application for an exemption from his disqualification from employment in positions of trust or responsibility. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 18th day of July, 2000. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services 4000 West Dr. Martin Luther King, Jr. Boulevard, Room 500 Tampa, Florida 33614 Nwezi A. Nonyelu 6545 Spanish Moss Circle Tampa, Florida 33625 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, Esquire Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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
