The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(d); and, if so, the appropriate penalty.
Findings Of Fact Petitioner is an agency of the State of Florida responsible for the certification and the revocation of certification of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes. Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 332010 to Respondent on July 24, 2003. As part of her employment agreement with the Florida Department of Corrections (DC), Respondent agreed to submit to random drug testing. See also § 944.474, Fla. Stat. (providing DC with the authority to develop a program for random drug testing of all employees). On June 22, 2018, DC requested that Respondent submit to a random drug test and she provided a urine sample that same day. Prior to her submission of the urine sample, Respondent provided photo identification to the lab technician to verify her identity. Respondent did not notify DC of any reason why her urine sample might test positive for a controlled substance. After submitting her urine sample, Respondent signed a form that stated: I [the Respondent] 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 bottle is correct. Respondent does not dispute the testing procedures, chain of custody, qualifications, or accreditation of the laboratory and its employees that analyzed her urine specimen. Respondent also does not dispute that this was a “drug test” as defined under section 112.0455(5)(j), Florida Statutes. Section 112.0455 is known as “the Drug-Free Workplace Act,” and 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. Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Instead, it relied on the testimony of Dr. Widerspan, the medical review officer who analyzed Respondent’s drug test, and Dr. Schwimmer, the director of medical review services at Doctor’s Review Services, which employs Dr. Widerspan, to establish those results. Dr. Schwimmer testified as to the testing and evaluation procedures utilized generally at Doctor’s Review Services. He noted that his office does not conduct the drug test, but rather, a separate laboratory conducts it. Medical review officers within his office review the results of positive tests. With respect to marijuana, Dr. Schwimmer testified that the laboratory conducts a two-stage testing process. First, the laboratory conducts an immunoassay, or screening test, that he described as a reactive test. If that first test reveals presence of delta-9 tetrahydrocannabinol/marijuana (delta-9 THC) for the marijuana metabolite at or above 15 ng/ml, the laboratory will then conduct a gas spectrometry test, which he described as more detailed and not reactive. If the gas spectrometry test confirms the concentration of delta-9 THC for the marijuana metabolite at or above 15 ng/ml, Dr. Schwimmer explained that the laboratory then refers the test to Doctor’s Review Services for review by a medical review officer. Dr. Schwimmer further testified that when a medical review officer receives the results of a test that reflects a concentration of marijuana in excess of 15 ng/ml, the medical review officer speaks with the subject of the test to determine if the subject has a valid medical explanation that the medical review officer can verify. According to Dr. Schwimmer, the only verifiable valid medical explanation for a positive marijuana test is if a subject presented a prescription for Dronabinol, also known as Marinol, and the subject ingested Dronabinol prior to the drug test. If a subject provides a verifiable, valid medical explanation for a positive marijuana test, a medical review officer may overturn the laboratory’s findings. Dr. Widerspan is a practicing physician and has been a certified medical review officer since 2015; she testified that she has evaluated over 50 urine specimens as a medical review officer. Dr. Widerspan was the medical review officer who reviewed the results of Respondent’s drug test. She testified that she saw the results of the marijuana metabolite concentration in Respondent’s drug test, which were transmitted electronically to her from the testing laboratory, and which she stated reflected a positive marijuana test. Again, Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Dr. Widerspan testified that she contacted Respondent to determine if a valid medical explanation existed to justify the positive result of the drug test, and after that conversation, determined that Respondent did not present a valid medical explanation. Respondent, an approximately 16-year veteran of DC, testified and presented credible evidence that she suffered from multiple issues related to her back, starting in 2017. As a result, Respondent stated that she took over-the-counter cannabidiol oil (CBD) for back pain around the time of her drug test. Respondent testified that she explored, and ultimately decided to ingest the over-the-counter CBD oil as an alternative to other prescribed pain medication, so that she would not be “woozy” or “goofy” at work, and because, as a correctional officer, she needed to be “aware and alert.” Petitioner and Respondent both provided evidence that Respondent purchased an over-the-counter CBD oil product from a local pharmacy near the time of the drug test. However, Respondent did not provide evidence that a medical professional prescribed the use of CBD oil or any marijuana-related products for her back. Respondent denied ingesting illegal marijuana during her employment with DC, but admitted ingesting over-the-counter CBD oil around the time of her drug test. Dr. Schwimmer testified that the medical review officers at Doctor’s Review Services will not consider a subject’s claim that he or she ingested CBD oil to overturn a drug test that is positive for marijuana because “it is not verifiable.” He further explained: If they are taking a product that is sold legally in the State of Florida, we don’t believe that normal usage would be a valid medical explanation because the levels required are well beyond what you would expect to see from that normal usage. Dr. Schwimmer further testified that “normal” CBD oil should have no more than 0.3% THC, which is very low, and thus should not trigger a positive marijuana test, even if the subject ingests it regularly. Dr. Widerspan similarly testified: Because the THC content within a CBD oil product is a trace amount, which is not - - would not be expected to come up as a positive test. It is not expected to develop a concentration strong enough to show up as a confirmed positive test. Respondent testified that she spoke with Dr. Widerspan after receiving a phone call where Dr. Widerspan indicated that her drug test was positive for marijuana, and Respondent told Dr. Widerspan that she ingested over-the-counter CBD oil. Respondent further provided copies of the bottle of the CBD product, as well as receipts of purchase, to Doctor’s Review Services. Dr. Widerspan stated that she advised Respondent that Respondent failed to provide her with a valid medical explanation that would permit her to overturn the result because over-the- counter CBD oil is not an acceptable prescribed medication, such as Dronabinol. It bears repeating that Petitioner did not introduce into evidence the actual result of Respondent’s June 22, 2018, drug test. Instead, Petitioner apparently relies solely on the testimony of Dr. Schwimmer and Dr. Widerspan to establish that Respondent’s June 22, 2018, drug test resulted in a positive test for marijuana, and in turn, that Respondent failed to maintain good moral character. The only exhibit that Petitioner introduced was a receipt from the local pharmacy where Respondent stated she purchased the over-the-counter CBD product. Respondent introduced into evidence, among other things, a series of letters from current and past co-employees of DC, that attest to her professionalism, strong work ethic, and leadership abilities at DC, as mitigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint against Terri D. Roberts. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 4th day of October, 2019. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Terri D. Roberts (Address of Record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
The Issue The issue to be resolved in this proceeding is whether the Board's termination of Respondent's employment should be upheld.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. The severity of the discipline is meant to emphasize the serious nature of drug use in relation to education, the students and the school, and its employees must set an example. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct warranting termination. The Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Board. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Respondent, Escambia County School Board, terminating the employment of Patricia Gadson. DONE AND ENTERED this 2nd day of March, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1999.
Findings Of Fact At all times material hereto, respondent, Reyes P. Ramos, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department), having been issued certificate number 19-83-002-05 on October 29, 1983. On January 30, 1990, respondent, as part of his annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. Upon analysis, the sample taken from respondent proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 55 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. On February 5, 1990, the Opa-Locka Police Department notified respondent that the analysis of his urine sample had proved positive for the presence of cocaine, a controlled substance. In response, respondent offered to provide another sample for further analysis. Later that day, February 5, 1990, respondent provided a second sample of urine to TTS to be analyzed for the presence of controlled substances. Upon analysis, the second sample also proved positive for the presence of the cocaine metabolite, benzoylecgonine, but this time at a concentration of 9.2 nanograms per milliliter. Such reduced concentration is consistent with the initial concentration of 55 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. In concluding that the urine samples respondent gave proved positive for the presence of cocaine metabolite, careful consideration has been given to the collection, storage and handling procedures adopted by TTS, as well as its testing methods. In this regard, the procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable measure of the concentration of cocaine metabolite in the body. 1/ While the testing demonstrates the presence of cocaine metabolite in respondent's system, and therefore the presence of cocaine, it does not establish how ingestion occurred. 2/ It may be reasonably inferred, however, that such ingestion was proscribed by law, absent proof that the subject 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. In response to the testing which revealed the presence of cocaine metabolite in his urine, respondent credibly denied the use of cocaine, and offered the testimony of a number of witnesses who know him well to lend credence to his denial. Those witnesses, who also testified credibly, observed 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 could be relied upon in a position of trust and confidence. Moreover, from the testimony of those witnesses who have known respondent for an extended period of time, commencing well prior to the incident in question, it may be concluded that, in their opinions, it is the antithesis of respondent's character to have ingested or used cocaine. Apart from his denial, respondent offered two possible explanations for the presence of cocaine in his system: (1) that, during the week of January 18, 1990, he had been in contact with four to five K-9 training aids, which contained pseudo-cocaine, while cleaning out his dog's possessions, and (2) that he had been in contact with 10 bags of rock cocaine, during the course of duty, in the early part of January 1990. As to the first explanation, the proof demonstrates that respondent was, and had been for some time, a canine officer with the City of Opa-Locka Police Department, and had a dog named "Eagle" as his partner. "Eagle" was a cross-trained drug and work dog. In or about September 1988, respondent and his dog attended narcotic detection training through the Florida Highway Patrol, and received training aids, which contained "pseudo-cocaine," for use in training dogs in the detection of cocaine. These aids were comprised of newborn baby socks, inside of which was placed pseudo-cocaine. The socks were then closed at the top with rubber bands and placed inside a folded towel, which was then rolled and taped. According to respondent, he continued to use these aids 2-3 times a week, after leaving the Florida Highway Patrol course, to keep his dog proficient. Eagle died in early January 1990 and, according to respondent, the week of January 18, 1990, respondent cleared a number of items that were used in the care or training of Eagle from a small aluminum shed in his back yard. Among those items were the training aids, which contained pseudo-cocaine. According to respondent, he disposed of the training aids by cutting the tape from the towels, removed the sock, and then shook the pseudo-cocaine into a trash can, which caused some residue to become airborne and contact him. Respondent's counsel theorizes that such contact with the pseudo-cocaine, as well as the possibility that some residue could have been lodged under respondent's fingernails, when coupled with the fact that respondent occasionally bites his nails, could be an explanation for the positive reading respondent received. Notably, respondent offered no proof at hearing, through representatives from the Florida Highway Patrol or otherwise, as to the chemical composition of the pseudo-cocaine. Under such circumstances, there is no showing of record that the pseudo-cocaine could have resulted in the positive reading he received, and it would be pure speculation to conclude otherwise. As to respondent's second explanation, that in early January 1990, during the course of duty, he had been in contact with 10 bags of rock cocaine, it likewise does not provide a rational explanation for his positive test results. Notably, according to respondent, that rock cocaine was bagged and, necessarily, he would not have had physical contact with the substance. Moreover, even if touched such would not explain its ingestion, and, considering the lapse of time from the event and his testing, is not a rational explanation for the source of his positive results. While the explanations respondent advanced at hearing were not persuasive, such does not compel the conclusion that his testimony is to be discredited. Indeed, if respondent never used cocaine, it is not particularly telling that he could not offer a plausible explanation for what he perceived to be an aberration. Here, while the results of the urinalysis point toward guilt, respondent's credible testimony, the character evidence offered on his behalf, and respondent's employment record suggest otherwise. With regard to respondent's employment history, the proof demonstrates that respondent was on active duty with the United States military from 1966 until 1972, and with the Florida National Guard (FNG) from 1974 until 1983. Prior to reverting to an inactive status with the FNG, respondent attended and graduated from the Southeastern Institute of Criminal Justice, a police academy, and was thereafter certified as a law enforcement officer. Following certification, respondent was employed by the Village of Indian Creek as a police officer for one year, and from January 1985 until his severance in 1990 as a police officer with the City of Opa-Locka. Currently, respondent is employed by the FNG, with the rank of Sergeant First Class, as a military criminal investigator assigned to counter drug programs for the Department of Justice. From respondent's initial employment as a police officer through his current employment, but for the incident in question, respondent has consistently been recognized as a professional, loyal and dedicated police officer who has also dedicated substantial personal time and resources to community service. During this service, he was frequently commended for his performance, and he has further demonstrated dedication to his profession through continued training in the law enforcement field. Among those who testified on his behalf, and spoke approvingly of respondent's good moral character, were Christina Royo, a sworn law enforcement officer with the Florida Department of Law Enforcement, and Alejandro Suarez, a Sergeant First Class with the United States Military, employed as a criminal intelligence analyst, and currently attached to respondent's FNG unit. Each of these witnesses are employed in positions of trust involving sensitive areas of law enforcement, and have known the respondent well for over fifteen years. In their opinions, which are credible, respondent enjoys a reputation reflecting good moral character and, it may be gleamed from their testimony, the use of controlled substances by respondent would be most uncharacteristic. Given the nominal amount of cocaine metabolite disclosed by testing and the credible proof regarding respondent's character, the inference that would normally carry petitioner's burden following proof of a positive test for cocaine metabolite, that such finding reflected the unlawful ingestion of cocaine, cannot prevail. Rather, considering the proof, no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results. Accordingly, such results, standing alone, do not support the conclusion that respondent unlawfully ingested cocaine or that he is lacking of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of March 1995. WILLIAM J. KENDRICK 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 24th day of March 1995.
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.
Findings Of Fact Respondent began working for the City in August 2001. In November 2012 he was reclassified as a Stormwater Technician II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated effective March 11, 2015. See City Ex. 6. Respondent then requested a hearing to contest that action. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent." Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II. DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2015.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody Control Form and on the label affixed to each specimen bottle was correct. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of cannabinoid. It did not change the positive result; it merely quantified it. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). Respondent's certification be revoked. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie B. Ward 1043 Booker Street Sebring, Florida 33870 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.
Findings Of Fact The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent: Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent; Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance; Shall satisfactorily perform his assigned duties in a competent professional manner; Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission. DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida. 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 27th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance. Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: First sentence rejected as unnecessary procedural details. Second sentence rejected as subordinate and unnecessary details. Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence. Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent: Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.) Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.) Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited. Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details. Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance. COPIES FURNISHED: William T. Jackson, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
