The Issue Whether respondent committed the acts alleged in the Administrative Complaint, and, if so, whether respondent's license should be revoked or suspended, or whether other discipline should be imposed.
Findings Of Fact Respondent is a licensed pharmacist in the State of Florida, having been issued license number 005517, and was so licensed at all times material to the Administrative Complaint. The respondent is engaged in the practice of pharmacy at Interbay Discount Drugs, 4332 South Manhattan, Tampa, Florida, where he is the proprietor and the sole pharmacist. On April 23, 1986, Ms. Beth Christie, investigation specialist for the Department of Professional Regulation, conducted a pharmacy inspection of Interbay Discount Drugs. During the pharmacy inspection, Ms. Christie reviewed certain documents, including the Certified Exempt Narcotic Record of Retail Sales maintained by Interbay Discount Drugs. This record, or log, is required to be maintained by a pharmacist to reflect the pharmacist's dispensing of Schedule V drugs. The log must show to whom the Schedule V drug was dispensed, the date it was dispensed, and identify the dispensing pharmacist. The log is used to ensure that certain amounts of exempt drugs are not dispensed to the same customer within a 48-hour period. Since respondent was the sole pharmacist at Interbay Drugs, all the log entries are followed by his initials. Ms. Christie initially reviewed the log while conducting her inspection at Interbay Discount Drugs. She noticed the same names appearing over and over again throughout the log which covered approximately a two-year period. Subsequently, Ms. Christie reviewed the log more extensively and prepared a patient profile for Cynthia D. Anderson and Vester L. McDaniel based on the information contained in the log. The patient profiles contained the date the drug was dispensed to the patient, the drug dispensed, and the quantity. The patient profile revealed that Vester L. McDaniel received Robitussin AC, 2 oz., on the following dates in the 1 1/2-year period from November 30, 1984, through April 21, 1986: 11-30-84 04-25-85 08-20-85 11-21-85 02-08-86 12-04-84 04-27-85 08-22-85 11-23-85 02-10-86 12-11-84 05-02-85 08-24-85 11-26-85 02-12-86 12-15-84 05-07-85 08-27-85 11-30-85 02-14-86 12-20-84 05-11-85 08-29-85 12-03-85 02-17-86 12-22-84 05-16-85 09-02-85 12-04-85 02-18-86 12-27-84 05-21-85 09-05-85 12-07-85 02-21-86 12-31-84 05-25-85 09-07-85 12-10-85 02-24-86 01-05-85 05-27-85 09-10-85 12-12-85 02-26-86 01-10-85 05-29-85 09-12-85 12-14-85 02-28-86 01-15-85 06-03-85 09-14-85 12-17-85 03-03-86 01-22-85 06-07-85 09-17-85 12-19-85 03-10-86 01-29-85 06-11-85 09-21-85 12-21-85 03-12-86 02-02-85 06-15-85 09-26-85 12-23-85 03-14-86 02-06-85 06-18-85 10-01-85 12-26-85 03-17-86 02-09-85 06-22-85 10-03-85 12-28-85 03-19-86 02-12-85 06-28-85 10-08-85 12-31-85 03-21-86 02-16-85 07-02-85 10-10-85 01-02-86 03-24-86 02-18-85 07-06-85 10-12-85 01-04-86 03-26-86 02-21-85 07-09-85 10-14-85 01-06-86 03-28-86 02-23-85 07-13-85 10-15-85 01-08-86 03-31-86 02-26-85 07-16-85 10-22-85 01-11-86 04-02-86 03-01-85 07-18-85 10-24-85 01-14-86 04-04-86 03-05-85 07-20-85 10-26-85 01-16-86 04-06-86 03-08-85 07-23-85 10-29-85 01-18-86 04-09-86 03-14-85 07-30-85 10-31-85 01-20-86 04-11-86 03-18-85 08-01-85 11-02-85 01-22-86 04-14-86 03-23-85 08-03-85 11-05-85 01-24-86 04-17-86 04-04-85 08-06-85 11-07-85 01-27-86 04-19-86 04-06-85 08-08-85 11-09-85 01-29-86 04-21-86 04-10-85 08-10-85 11-14-85 01-31-86 04-18-85 08-13-85 11-16-85 02-03-86 04-20-85 08-17-85 11-19-85 02-06-86 In addition to the above, Mr. McDaniel received Terpin Hydrate with Codeine on September 19, 1985, and November 12, 1985. The record reveals that Mr. McDaniel received Robitussin AC, 2 oz., on October 14 and 15, 1985, and on December 3 and 4, 1985. The quantity of codeine contained in the Robitussin AC dispensed to Mr. McDaniel by respondent within the 48-hour period from 10-14-85 to 10-15-85 and the 48-hour period from 12-3-85 to 12-4-85 exceeded 120 milligrams. The patient profile of Cynthia D. Anderson revealed that Ms. Anderson received Robitussin AC, 2 oz. on February 24, 1984, and received Novahistine DH, 2 oz., on the following dates in the 2-year period from April 14, 1984, to April 23, 1986: 04-25-85 09-04-85 12-09-85 02-21-86 04-14-84 04-29-85 09-06-85 12-11-85 02-24-86 04-20-84 06-29-85 09-09-85 12-13-85 02-26-86 05-04-84 07-02-85 09-11-85 12-16-85 02-28-86 07-31-84 07-06-85 09-13-85 12-21-85 03-03-86 08-23-84 07-09-85 09-16-85 12-23-85 03-05-86 09-05-84 07-11-85 09-18-85 12-30-85 03-07-86 09-08-84 07-13-85 09-20-85 01-01-86 03-10-86 10-11-84 07-15-85 09-23-85 01-03-86 03-12-86 10-13-84 07-17-85 09-30-85 01-07-86 03-14-86 10-16-84 07-22-85 10-02-85 01-10-86 03-17-86 10-23-84 07-24-85 10-04-85 01-13-86 03-19-86 11-01-84 07-26-85 10-07-85 01-14-86 03-21-86 11-15-84 07-29-85 10-09-85 01-16-86 03-24-86 11-17-84 07-31-85 10-11-85 01-20-86 03-26-86 12-07-84 08-02-85 10-15-85 01-22-86 03-28-86 12-27-84 08-07-85 10-17-85 01-24-86 03-31-86 01-28-85 08-09-85 10-21-85 01-27-86 04-02-86 01-30-85 08-12-85 10-23-85 01-29-86 04-04-86 02-06-85 08-14-85 10-25-85 01-31-86 04-06-86 02-12-85 08-16-85 10-29-85 02-03-86 04-08-86 02-15-85 08-20-85 10-31-85 02-05-86 04-10-86 02-18-85 08-22-85 11-18-85 02-07-86 04-14-86 02-21-85 08-24-85 11-22-85 02-10-86 04-14-86 04-06-85 08-26-85 11-27-85 02-12-86 04-18-86 04-09-85 08-28-85 12-02-85 02-14-86 04-21-86 04-11-85 08-30-85 12-04-85 02-17-86 04-23-86 04-23-85 09-02-85 12-06-85 02-19-86 As the above shows, respondent dispensed Novahistine DH, 2 oz., to Ms. Anderson twice on April 14, 1986. 2/ The quantity of codeine contained in the Novahistine DH dispensed to Ms. Anderson on April 14, 1986, exceeded 120 milligrams. Ms. Christie asked respondent about the repeated dispensing of Robitusin AC and Novahistine DH to Mr. McDaniel and Ms. Anderson, and respondent stated that both complained of a chronic cough. However, Ms. Christie observed Ms. Anderson, who happened to purchase Novahistine DH while Ms. Christie was performing her inspection, and Ms. Anderson did not cough at all while she was in the store. Respondent also told Ms. Christie that he continued to provide the drugs to Ms. Anderson and Mr. McDaniel because "they were regular customers and purchased other items in his store [and] it would be awkward for him to refuse to sell the exempt narcotics to them." [T-30] Codeine is a very potent narcotic, and it can be addictive. Approximately 60 milligrams of codeine are contained in one ounce of Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine. Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine, in two ounce quantities, are Schedule V controlled substances. No more than two ounces of these drugs can be dispensed by a pharmacist to the same person within a 48-hour period without a prescription. Although Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine are cough depressants, there are much better things for people with chronic coughs than cough depressants that contain narcotics. A pharmacist who is presented with a request for Robitusin AC, 2 oz., by the same customer every two or three days should be very concerned and cautious. First, the pharmacist should be concerned about the health of the customer. A chronic coughing problem over a period of time should be treated professionally by a physician, not a pharmacist. A pharmacist should advise the customer to see a physician and refuse to sell the customer any more of the drug. Second, the pharmacist should be cautious because of the potential for abuse of the drug. It would be prudent for a pharmacist to refuse to dispense the drug after about three requests within a short period of time. To dispense Robitusin AC regularly over a two-year period cannot be considered dispensing the drug in good faith as a medicine. Any pharmacist dispensing the drug in good faith as a medicine would cease such regular dispensing of the drug long before two years had elapsed. The dispensing of Robitusin AC, 2 oz., and Terpin Hydrate with Codeine to Mr. McDaniel from November 30, 1984, to April 21, 1986, was not in good faith as a medicine. Novahistine DH is a essentially the same drug as Robitusin AC but made by a different company. The dispensing of Novahistine DH to Ms. Anderson from April 14, 1984, to April 23, 1986, was not in good faith as a medicine. Respondent admitted that he used poor judgement in dispensing the drugs to Mr. McDaniel and Ms. Anderson, but he denied that he dispensed the drugs not in good faith as a medicine. Mr. McDaniel was a heavy smoker and had a chronic cough. Respondent stated that he was just not aware that Mr. McDaniel had been receiving Robitusin AC for the period of time that he had. Respondent stated that Ms. Anderson had a family history of chronic bronchitis and respondent felt the medication was needed. Respondent also stated that he did not sell more than two ounces of either Robitusin AC or Novahistine DH to Ms. Anderson or Mr. McDaniel within a 48-hour period, although he admitted that his log reflected that such had occurred. Respondent contended that the customers had written in the wrong dates.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Pharmacy enter a final order finding respondent committed those acts set forth in Counts I, II, III, and IV of the Administrative Complaint, imposing an administrative fine of $200 for each of the four counts, for a total fine of $800, and placing the respondent on probation for a period of one year under such terms and conditions as the Board may deem appropriate. DONE and ORDERED this 17th day of April 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1987.
Findings Of Fact The Home is licensed as an assisted living facility. It is also licensed to provide extended congregate care, limited nursing services, and limited mental health services. The Home accepted Respondent as a resident. In July 1998, Petitioner had to transport Respondent to the hospital due to an overdose of medication. Upon his return from the hospital, Respondent told Petitioner's staff that he had taken the overdose intentionally. Thereafter, the Home required Respondent to sign a mental health contract dated September 9, 1998. This contract states as follows in relevant part: Qualifications for the Home requires [sic] that a member or applicant must not be mentally ill, habitually inebriated, or addicted to the use of a controlled substance. With these requirements, I understand that to be eligible and maintain my membership in the Home, I must agree to the terms of this contract. * * * If I use alcohol or any non-prescribed drugs I understand I may be dismissed from the Home. I understand that I will allow the Veterans' Domiciliary Home of Florida to supervise the self-administering of my medications. I will take my medication as it is prescribed by the primary physician. I will only be given my full prescription at the time of my discharge. I understand upon reasonable suspicion of being under the influence of alcohol or illegal drugs, I consent to testing. The Domiciliary Home staff may take a blood, saliva, or supervised urine sample to test for illegal drugs or alcohol. I authorize members of the Domiciliary staff to perform random searches of my person, vehicle, living quarters, or belongings to determine if I am using drugs or alcohol. If I refuse to allow a blood, saliva, or urine test, or search, or if I interfere in any way with the staff's performance of these duties, I may be dismissed. The Home also required Respondent to sign a Dual Diagnosis/Substance Abuse/Psychiatric (dual diagnosis) contract dated September 14, 1998. In addition to terms and conditions similar to the ones set forth above, the dual diagnosis contract provides as follows in relevant part: 10. In order to assist me in gaining freedom from alcohol and drugs, I will not use alcohol, tranquilizers, sleeping medication, over the counter medications, or any other chemical escapes which have not been prescribed by a physician. If I use alcohol or non-prescribed drugs, I understand I will be dismissed from the Home. In November 1998, one of Respondent's doctors wrote him a prescription for Ritalin. Respondent became very upset when a nurse would not administer the Ritalin to him without first checking with Petitioner's staff physician. Eventually, Respondent's primary care physician approved the administration of Ritalin together with Respondent's other medications. In January 1999, Respondent worked for Petitioner as a receptionist. After working overtime on one occasion, Respondent's speech was slurred, his eyes were dull, and his voice was horse. Petitioner's staff became suspicious that Respondent was taking medication in violation of his contracts. Respondent subsequently tested negatively for all substances except his prescribed medicines. In March 1999, Respondent violated his contracts by having a prescription for methadone filled at a drugstore and removing twenty-four of the pills from the bottle before turning the medicine over to Petitioner's staff as required by his contract. Petitioner's staff advised Respondent that he would be dismissed from the Home by letter dated March 23, 1999. Respondent subsequently requested Petitioner's Executive Director to review the decision to discharge him from the Home. By letter dated August 16, 1999, Petitioner rescinded its decision to dismiss Respondent from the Home but warned him that any further infraction would result in his immediate expulsion. On April 14, 2000, Petitioner conducted a routine facility-wide room inspection at the Home. During the course of the inspection, Petitioner found a bottle of Ephedra 250 in Respondent's room. According to the label on the bottle, Ephedra 250 is a dietary supplement that General Nutrition Corporation (GNC) markets. During the hearing, Respondent admitted that he heard about Ephedra 250 on a television show that discussed its benefits as a diet aid as well as its dangerous side effects. The label states as follows in pertinent part: WARNING: Seek advice from a health care practitioner prior to use if you are pregnant or nursing, or if you have high blood pressure, heart or thyroid disease, diabetes, difficulty in urination due to prostate enlargement, or if taking MAO inhibitor or any other prescription drug. Reduce or discontinue use if nervousness, tremor, sleeplessness, loss of appetite or nausea occur. Not intended for use by person under the age of 18. The maximum recommended dosage of Ephedrine for a healthy adult is no more than 100 mg in a 24 hour period for not more than 12 weeks. Improper use of this product may be hazardous to a person's health. Each capsule of Ephedra 250 contains 250 mg of MA Huang Extract (Ephedra sinica) or ( 15 mg of 6 percent Ephedrine). The greater weight of the evidence indicates that Ephedra 250 is an over-the-counter medication despite being labeled as a diet supplement. Ephedrine is a prescription drug in Florida unless an individual dose is less than a specified quantity. Petitioner's staff properly became concerned about Respondent's possession of Ephedra 250 because he takes numerous prescribed medications, which can have serious side effects, if taken with certain other medications. Ephedrine is one of those drugs. For instance, Respondent takes Cozaar for high blood pressure, Methadose to reduce his dependency on Percoset, and Ritalin. Persuasive evidence indicates that large doses of Ephedra can be used as a recreational drug. Respondent knew or should have known that Ephedra 250 was prohibited by his contracts with the Home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing Respondent as a resident of the Robert H. Jenkins Veterans' Domiciliary Home of Florida. DONE AND ENTERED this 6th day of October, 2000, 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 (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 6th day of October, 2000. COPIES FURNISHED: James W. Sloan, Esquire Department of Veterans' Affairs Post Office Box 21003 St. Petersburg, Florida 33731-8903 William T. Fisher 1300 Sycamore Lane, Suite 148 Lake City, Florida 32025 Lt. Col. Robin L. Higgins, Executive Director Department of Veterans' Affairs Post Office Box 31003 St. Petersburg, Florida 33731-8903
The Issue The issue is whether Petitioner may terminate Respondent's employment as a teacher.
Findings Of Fact Respondent has been a teacher since 1993. She is a 34- year-old divorced mother of a four-year-old son. Respondent has suffered from a chemical dependency since she was 18 years old. At that time, she completed a 28- day detoxification program at Mt. Sinai Medical Center in Miami. Six or seven years later, Respondent underwent additional inpatient treatment for her addiction to drugs. She submitted to a third detoxification, lasting five to seven days, in 1993 or 1994. Respondent underwent a fourth detoxification ten months later and, in 1996, a fifth detoxification. Respondent admits that she has undergone detoxification several more times since 1996. These detoxifications and Respondent's intermittent participation in Narcotics Anonymous were parts of treatment programs attempting to relieve Respondent from her addiction to cocaine and heroin. Respondent's addiction has spanned her college years through her entire teaching career. The effects of Respondent's illness have, at times, precluded her from reaching her full potential as a classroom teacher. After a brief period of employment by Petitioner as a permanent substitute teacher, Respondent began fulltime employment with Petitioner in August 1994 as a teacher at Oak Grove Elementary School. While at Oak Grove, Respondent was a satisfactory teacher, although her attendance was less than satisfactory. Also, on at least six occasions, evidently starting in her second year, Respondent fell asleep while conducting a reading tutorial session in which the students spent 20 minutes in separate cubicles. Respondent's principal at Oak Grove documented by a memorandum dated December 4, 1995, eleven full-day absences and two half-day absences during the 1995-96 school year and two instances of sleeping while charged with the instruction of a student--both on the same day and both discovered by the principal. Due to these incidents and an earlier incident of sleeping while on duty, the principal administratively referred Respondent to Petitioner's Employee Assistance Program (EAP). The December 4 memorandum documented the actions taken at a conference held the same date involving, among others, Respondent and the principal. Respondent then missed work on December 6 and 7--calling in at 10:06 a.m. on December 7 saying that she had overslept and asking if it was too late to report to work. Respondent missed a considerable amount of work during the 1996-97 school year. Some of the absences, especially from early December through early February, were due to Respondent's chemical dependency. However, some absences, especially during the latter part of the school year, may be attributed to the birth of Respondent's child on July 9, 1997, following a high- risk pregnancy. The record does not disclose much about the 1997-98 school year. However, Respondent missed ten days of work due to sick or personal leave and eleven days of work due to unpaid, but authorized, leave. The absence of additional administrative action against Respondent suggests that she may have improved her attendance and eliminated her sleeping while on duty. For the 1998-99 school year, Respondent transferred to a new school, Linda Lentin Elementary School. Again, Respondent was a satisfactory teacher, except for absenteeism. However, during a nine-day absence from May 20 through June 2, 1999, the principal received a telephone call from someone claiming that Respondent had had a breakdown and was in a "drug rehabilitation hospital." Accordingly, the principal requested that Petitioner's Office of Professional Standards (OPS) monitor Respondent's return to work. On June 8, 1999, Respondent, the principal, Petitioner's OPS Director, and others participated in a Conference for the Record (CFR). Respondent attributed her 21 absences in the 1997-98 school year, as well as 20.5 absences in the 1998-99 school year, to six miscarriages and depression. Petitioner's OPS Director explained the procedures for reasonable-suspicion drug testing. The CFR memorandum concludes by emphasizing that Respondent must report to work when scheduled and on time, obtain medical excuses for all absences, provide lesson plans for substitute teachers, and obtain approval for scheduled leave. At the same time, Petitioner's OPS Director referred Respondent to Petitioner's EAP. Subject to these actions, Petitioner approved Respondent's return to the classroom. However, Respondent's attendance did not improve the following school year, and her behavior became somewhat eccentric early in the school year. At noon on September 27, 1999, Respondent told the principal that she was ill and needed to go home for the remainder of the day and the following day. Respondent went home, but, despite requesting leave and a substitute for the following day, returned to work the following day without calling first. Near the end of the school day, while her students were in a special-area class, Respondent signed out of school and walked down the street, despite the fact that it was raining. The next day, Respondent left the school grounds without permission and, the following day, failed to attend a mandatory teachers' meeting. The situation deteriorated in mid-October 1999. From October 11-14, Respondent telephoned the school each day and reported that she was sick and in the hospital. The following Monday, October 18, Respondent reported to work. However, on October 19, Respondent failed to report to work or call, leaving her class sitting in the hallway. Respondent telephoned the school at mid-day and stated that she had been in a five-car accident. This accident did not take place. On October 20, while driving to school, Respondent was involved in a two-car accident, which resulted in her striking a fire hydrant not far from the school. The accident took place at about 8:45 a.m., which was about 15 minutes after Respondent assumed direct supervision of her students. Respondent arrived at school late, crying and disconcerted. An acquaintance transported Respondent home. The next morning, prior to the start of school, Respondent called the school and stated that she would not be at work. On the following morning, October 22, Respondent reported to work, and her principal ordered her to submit to a reasonable-suspicion drug test. Respondent complied, and the drug test revealed the presence of cocaine and morphine. The drug test accurately detected the presence of these substances because Respondent had used crack cocaine and heroin within the period for which the drug test is sensitive. By memorandum dated October 29, 1999, Respondent's principal asked Petitioner's OPS to monitor Respondent's return to work. By memorandum dated November 1, 1999, Petitioner's OPS informed Respondent that she would require a clearance from OPS before returning to work. On November 8, 1999, Respondent requested a leave of absence without pay to extend from October 22, 1999, through June 16, 2000. Petitioner granted this request. Shortly after starting her leave from work, Respondent was first seen by Dr. John Eustace. Dr. Eustace is Board-certified in internal medicine and is also certified in the treatment of addictions. He is the medical director of the Addiction Treatment Program at Mt. Sinai Medical Center. He is also an assistant professor of psychiatry at the University of Miami medical school. In the last ten years, Dr. Eustace has performed 2000 evaluations of professionals to assess whether they can return to practice with the requisite skill and safety. During his career, Dr. Eustace has diagnosed and treated over 10,000 patients for addictions. Dr. Eustace admitted Respondent as an in-patient at Mt. Sinai for, among other things, a four- or five-day detoxification program. He found that Respondent was in the late middle stage of addiction to heroin and cocaine and that her illness was active. When releasing Respondent from the detoxification program, Dr. Eustace recommended that Respondent enter a twelve- step program to better prepare Respondent for the difficult recovery process, which requires, among other things, gaining insight into the consequences of the addiction. Following the detoxification process, Dr. Eustace opined that Respondent had an even chance of avoiding another relapse. However, this prognosis improves with time. After the first five years without relapse, the relapse rate is only ten percent. Also, after a second treatment, the recovery rate is over 90 percent. Of the 2000 professionals whom Dr. Eustace has treated, over 90 percent have recovered. Unfortunately, Respondent relapsed after her 1999 detoxification and treatment by Dr. Eustace. Despite her return to active use of illegal drugs, Respondent chose to restart the process by which she could return to the classroom. Petitioner's OPS informed Respondent that she would need OPS clearance before returning to work. Reacting to Respondent's request for a clearance, OPS scheduled a CFR with Respondent and others to take place on July 28, 2000. At the July 28 CFR, Respondent signed an Employee Acknowledgement Form concerning Petitioner's drug-free workplace policy. The form states: "Before returning to duty, I must undergo a return-to-duty . . . controlled substances test with verified negative results." At the CFR, Respondent admitted that she had had a chemical dependency, but represented that she was now clean and sober. Apparently, Respondent did not anticipate that she would be required to take a drug test at the July 28 CFR. However, with the new school year imminent, it is difficult to understand exactly when Respondent thought she would be required to take the drug test. If she were going to teach the next school year, her principal needed more than a few days' notice. In any event, Respondent took the test on July 28, and the test revealed the presence of morphine, although not cocaine. By memorandum dated September 6, 2000, from Petitioner's OPS Director to Respondent, Petitioner advised Respondent that it was reviewing its options after receiving the results of the July 28 drug test. By letter dated October 6, 2000, to Respondent, Petitioner's Superintendent advised Respondent that Petitioner was suspending her and initiating dismissal proceedings due to just cause, including incompetency, misconduct in office, gross insubordination, excessive absences, and violation of Petitioner's Rules 6Gx13-4-105 (drug-free workplace) and 6Gx13-4A-1.21 (responsibilities and duties). By letter dated October 12, 2000, and revised October 17, 2000, Petitioner's board took the action recommended by the Superintendent. The contract between Petitioner and the United Teachers of Dade (Contract) provides in Article XXI, Section 1.B.1.a, that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Article XXI, Section 2.G, sets forth the Drug-Free Workplace General Policy Statement. Section 2.G.b provides the policy statement on illegal drugs, Section 2.G.c provides the policy statement on alcohol and prescription drugs, and Section 2.G.d provides the policy statement on employee drug screening. Under employee drug screening, Section 2.G.d.5 states: [Petitioner] recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of [Petitioner], where possible, to seek rehabilitation of employees with a self- admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to Board Policy, applicable Florida Statutes, State Board Rules, and applicable provisions of collective bargaining agreements. Petitioner has invoked two of its rules in this case. Rule 6Gx13-4A-1.21, which is a statement of "Responsibilities and Duties," requires, at Section 1, all employees "to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system." It is unnecessary to determine whether the Contract incorporates this rule, or whether Petitioner may otherwise rely on this rule to dismiss an instructional employee during the school year. Rule 6Gx13-4-1.05 (Rule), which is the "Drug-Free Workplace General Policy Statement," is a restatement of the Drug-Free Workplace General Policy Statement contained in the Contract. The prominent role of the Drug-Free Workplace General Policy Statement in the Contract, as well as its provision for the dismissal of employees, justifies Petitioner’s reliance upon a violation of the Rule as a basis for dismissing an instructional employee during the school year, notwithstanding the provision of the Contract otherwise requiring that all such dismissals be based on violations of Florida Statutes. In most respects, the Drug-Free Workplace General Policy Statement is the same in the Rule and the Contract. The Rule provides for "disciplinary sanctions" against employees who have violated the "standards of conduct" set forth within the Rule. Like the Contract, the Rule contains three "policy statements," which supply most of the operative provisions of the Rule. For illegal drugs, the policy statement, as set forth in the Rule, provides: "Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs, nor will they be under the influence of such drugs. Employees on or off duty will not influence students to use illegal or abuse legal drugs. An employee convicted, adjudicated guilty, or who has entered a plea of guilty for an criminal drug statute violation occurring in the workplace shall notify [Petitioner] within 48 hours after final judgment. Paragraphs A and C are limited to acts and conditions that take place while an employee is on Petitioner's property or on duty. Paragraph B is limited to acts of the employee directed toward students. The evidence does not suggest that Respondent violated any of these provisions of the Rule. Petitioner failed to serve that the incidents involving Respondent sleeping while in charge of students appear not to have been due to her cocaine or heroin intoxication; it is at least as likely that the sleeping resulted from fatigue following the use of one or both of these drugs the preceding night. The distinction between intoxicating levels of these drugs and nonintoxicating trace amounts is explicitly dismissed by the Rule's treatment of alcohol, as to which employees must be "free of measurable . . . concentrations." After the policy statements on illegal drugs and alcohol and prescription drugs, the Rule sets forth the policy statement on employee drug screening. Although this part of the Rule fails to provide explicitly that a positive drug screen is a violation of the Rule, the introductory paragraph of the Rule acknowledges that Petitioner and the United Teachers of Dade are jointly committed "to create and maintain a drug-free work environment." Paragraph D within the drug-screening policy statement restates this purpose. Also, the disciplinary sanctions provided by the Rule clearly state that a refusal to submit to a drug test or a second violation of the Rule constitutes an inability to be assisted by rehabilitation; if a refusal to submit to a drug test is a violation, a failed drug test must also be a violation. These statements are therefore sufficient to provide that the presence in employees of even nonintoxicating amounts of illegal drugs, while on duty, constitute a violation of the Rule. In two respects, the Drug-Free Workplace General Policy Statement, as described in the Rule, is materially different from the Drug-Free Workplace General Policy Statement, as described in the Contract. First, the Rule adds another objective: To communicate that persons who violate the standards of conduct cited in this rule and who refuse or cannot be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. Second, the Rule provides disciplinary sanctions for any violation--not just for violations of the drug-screening policy statement, as provided by the Contract--of the Drug-Free Workplace General Policy Statement. The Rule also adds two presumptive conditions for determining when an employee is unable to be assisted by rehabilitation. The Rule states: Employees who violate the standards of conduct cited it this rule and who the Board determines will not be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. A refusal to submit to a drug test or a second violation of the Drug-Free Workplace Policy shall constitute an inability to be assisted by rehabilitation. . . . This case turns on whether Petitioner has proved that Respondent would not be assisted by rehabilitation because Petitioner has produced little detailed evidence of any negative impact upon Respondent's students. The record lacks detail of Respondent's specific teaching duties, the specific impact of her sleeping incidents or absences, and the academic achievements of her students during the periods in which these shortcomings took place. Notwithstanding the marked shortcomings in Respondent's performance as a teacher, Petitioner did not dismiss her until first giving her a chance to rehabilitate herself. The most likely inference is that Petitioner's administrative employees found that the situation did not satisfy the first criterion for dismissal--negatively impacting students. The basic issue, then, is whether Petitioner could reasonably have determined, from July to October 2000, that Respondent would not be assisted by rehabilitation. Petitioner could choose to show rehabilitation would be futile by relying on one of the two presumptions contained in the Rule. However, Respondent never refused to submit to a drug test, and difficult questions of her employment status in July 2000 obscure the determination as to whether her failure of the July 2000 drug test constitutes a second violation of the Rule. In this case, though, Petitioner may satisfy its standard of proof without regard to either of the presumptions in the Rule. After a display of considerable patience and good faith by Petitioner, Respondent, in July 2000, misrepresented to Petitioner that she was clean and sober and prematurely requested permission to return to teaching duties despite her knowledge that she was still abusing drugs and not ready to return to the classroom. These facts support the finding that, as of July or October 2000, Respondent would not be assisted by rehabilitation. This finding of the futility of rehabilitation, as of July or October 2000, is difficult due to the fact that subsequent events suggest that Respondent may finally be rehabilitating herself. After Petitioner dismissed her, Respondent underwent detoxification and then began treatment at St. Luke's Addiction Recovery Center, which is sponsored by Catholic Charities of the Archdiocese of Miami, Inc. She was in intensive residential treatment from November 6, 2000, through January 24, 2001. She later underwent nine urinalyses, through June 1, 2001--a day after the end of the hearing in this case-- and all of them were negative. Respondent is successfully participating in the St. Luke's aftercare program, where she takes weekly drug tests. She is proud of the fact that she has turned her life over to God and has achieved the longest period of sobriety that she has experienced in many years. After regaining sobriety, Respondent substituted for awhile and then found a job teaching a third-grade class at a private school in the Miami area. At the time of the hearing, Respondent had been so employed for six weeks, she had not been late or missed a day of school, and the school had invited her to teach again for the 2001-02 school year. Dr. Eustace opines that Respondent's prognosis is much improved from the prognosis of September 2000.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 N. E. Second Avenue Room 912 Miami, Florida 33132-1308 Luis M. Garcia Attorney's Office School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Richard Baron Baron and Cliff 11077 Biscayne Boulevard, Suite 307 Miami, Florida 33161 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
The Issue The issue is whether Billy H. Davis, on two occasions, sold to undercover detectives of the Miami Police Department the medicinal drug Ampicillin without prescriptions in contravention of Section 465.015(2)(c), Florida Statutes (1985), and is therefore subject to discipline pursuant to Section 465.016(1)(e), Florida Statutes (1985)?
Findings Of Fact Respondent, Billy H. Davis ("Mr. Davis"), at all times relevant herein, has been licensed as a pharmacist in the State of Florida, and has been issued license number 0010622. During the period at issue here, Mr. Davis was prescription manager for Service Drugs, Inc. located at 1304 N.W. 3rd Avenue, Miami, Florida 33136 (Exhibits 1 and 2). On March 27, 1985 Detective Carolyn Clarke of the Miami Police Department purchased thirteen red and gray capsules from Mr. Davis for $8.00 (T. 50, 54). She did not present a prescription during the transaction or represent that she had authorization from a physician to obtain any drugs for which a prescription is required (Tr. 52-3). In March of 1985 Officer Jesse J. Williams purchased twelve red and green capsules from Mr. Davis for $8.00 (Tr. 58- 61). He did not present a prescription or indicate that he had authorization from a physician to receive prescription medication during the transaction (Tr. 60). Upon analysis at the Metro Dade Police Department Crime Laboratory, the capsules purchased by Detectives Clarke and Williams proved to be Ampicillin (Tr. 63-77, Department Exhibits 7 and 8). Ampicillin is a prescription or medicinal drug in the United States (Tr. 96). Mr. Davis has sold or dispensed drugs as defined in Section 465.003(7), Florida Statutes (1985) without first being furnished with a prescription. When the drugs were sold, Mr. Davis had been told by the purchasers that they needed medication either for gonorrhea (Tr. 50) or for an unspecified venereal disease (Tr. 59). Oral antibiotics are not the appropriate treatment for drug-resistant strains of gonorrhea, such as penicillinase- producing neisseria gonorrhea ("PPNG") (Tr. 87). There has recently been a large outbreak of PPNG in Florida, and specifically Dade County and Miami (Tr. 89), with a large portion of the disease occurring in the black community in the Liberty City and Overtown areas (Tr. 90). Self-administration of antibiotics has played a role in the propagation of PPNG, because when there is a drug-resistant strain of venereal disease in a community and patients take antibiotics not appropriate to treat their condition, patients believe that they are getting better when they are still infectious (Tr. 93-94). This may cause those patients, if women, to develop pelvic inflammatory disease which can lead to infertility and occasionally users can develop an infection of the heart valves known as bacterial endocarditis (Tr. 94-95). It is not possible for patients to tell from symptoms or by mere physical examination whether they have been- infected with a drug-resistant strain of PPNG: a patient must have a culture done by a physician to make this determination (Tr. 96).
Recommendation Based on the foregoing, it is recommended that a final order be entered finding Mr. Davis guilty of violating Sections 465.015(2)(c) and 465.016(1)(e), Florida Statutes (1985). In view of the well-intentioned nature of Mr. Davis' actions, the apparent absence of any profit motive, but keeping in mind the potential public health hazard involved in dispensing of medicinal drugs for the relief of venereal disease without prescription, it is recommended that pursuant to Section 465.016(2)(b), Florida Statutes, his license to practice pharmacy be suspended for a period of thirty days; pursuant to Section 465.016(2)(c), Florida Statutes, that he be fined a total of $250.00; and pursuant to Section 465.016(2)(e), Florida Statutes, within one year he be required to attend continuing education courses pertaining or relating to the appropriate use of medicinal drugs in the treatment of venereal disease. DONE AND ORDERED this 17th day of June 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1986. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Billy H. Davis 1304 N.W. Third Avenue Miami, Florida 33136 Mr. Rod Presnell Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issues for consideration in this case are whether the Petitioner, Josephine Kimball, is entitled to an award of attorney fees from Respondent, Department of Health, as provided in Section 120.595, Florida Statutes (2003), and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Department, through its Bureau of Statewide Pharmaceutical Services (formerly the Bureau of Pharmacy Services), is the state agency responsible for administering and enforcing the Florida Drug and Cosmetic Act, Chapter 499, Florida Statutes (1997), which includes the regulation of the manufacture, promotion, and distribution of prescription drugs. The Department initiated an Administrative Complaint in August 1993 (1993 Administrative Complaint) while in the middle of an investigation and after participating in a federal and state force of agencies that executed a search and seizure of the business establishment and of the home of James T. Kimball and his wife, Josephine Kimball, both of which were located in Wesley Chapel, Florida. The Kimballs' business establishment was located at 29949 State Road 54 West in Wesley Chapel, Florida ("business establishment" or "29949 State Road 54 West"). The search and seizure took place on May 12, 1993, pursuant to federal warrants. The 1993 Administrative Complaint was issued to Discovery Experimental and Development, Inc. ("DEDI"), located at 29949 State Road 54 West and related to that company's alleged sale of drugs that were not approved by the Federal Drug Administration (FDA). After the 1993 Administrative Complaint was filed, the Department continued to investigate the activities of DEDI. Deborah Orr (Agent Orr) began working for the Department as a drug agent and investigator on or about 1993 and was assigned to investigate the underlying case until the case culminated. During the investigation, Agent Orr and other Department agents, investigators, and officials reviewed documents and other evidence seized during the search of the business establishment and the home of the Kimballs that tied both James and Josephine Kimball to several corporations that appeared to be connected to the manufacture and sale of certain unapproved drugs. Among the documents found and seized from the Kimballs' home, pursuant to the 1993 warrant and reviewed by Agent Orr, was the financial statement of James and Josephine Kimball dated April 14, 1992. According to that document, James and Josephine Kimball were 90-percent owners of DEDI, which "develops pharmaceuticals and chemicals for manufacturing" and had an assessed value of $1,000,000; James and Josephine Kimball were 90-percent owners of ASTAK, Inc. ("ASTAK"), a company that "manufactures custom order vitamins"; James T. Kimball was a 100-percent owner of Discovery Experimental and Development, Mexico N.A. (DEDI of Mexico), a company that "manufacture[s] pharmaceuticals" and ships to 12 countries; and James and Josephine Kimball were 83-percent owners of Discovery Tour Wholesalers, Inc. (Tours), which owned the real property located at 29949 State Road 54 West. The Department's investigation indicated that several companies controlled by the Kimballs had separate and distinct functions related to the unlawful drug enterprise. For example, it appeared that one company manufactured the unlawful drugs, another took and filled orders from customers for the unlawful drugs, and another put out promotional information and literature about the unlawful drugs. During the investigation, the Department determined that most of the corporations involved in the unlawful drug enterprise had common ownership and operated from 29949 State Road 54 West. The Department's investigation revealed that Josephine Kimball provided administrative and secretarial services, as well as "consultant services," for several corporations owned by her husband, James T. Kimball, and/or owned jointly by Mr. and Mrs. Kimball that were alleged and found to have been involved in unlawful drug activities. Prior to 1997, Agent Orr received and reviewed several checks written to Tours by companies operating out of the 29949 State Road 54 West location, specifically DEDI and ASTAK, both of which were involved in the manufacture and distribution of drugs that were not approved by the FDA. From a review of these checks, it appeared that Mrs. Kimball, in her individual capacity or in connection with her role at Tours, had signature authority on those corporate bank accounts because some of the checks written to Tours by DEDI and by ASTAK, on their respective bank accounts, were actually signed by Josephine Kimball. During the course of the Department's investigation, Agent Orr obtained and reviewed a letter and check which indicated that Josephine Kimball ordered and/or purchased self-inking signature stamps for "personal checks" for "R.R. Riot" and "R.C. Brown." The letter, which effectively placed the order for the self-inking signature stamps, was signed by Josephine Kimball, as the representative of "Discovery," and requested that the self-inking stamps be mailed to "Discovery, 29949 S.R. 54 West, Wesley Chapel, Florida." Moreover, the self-inking stamps were paid for by check on the account of DEDI and bore the facsimile signature of "R.C. Brown" and the hand- written signature of Josephine Kimball. The R.R. Riot and the R.C. Brown signature stamps were connected to DEDI of Mexico and B & B Freight Forwarding, Inc. (B & B Freight), respectively. According to documents reviewed by the Department, the "R.R. Riot" signature stamp was used to establish a bank account for DEDI of Mexico. A resolution, executed by James T. Kimball, as secretary of DEDI of Mexico, authorized the bank at which that company's account was established, to honor all checks or drafts or other orders of payment drawn on the DEDI of Mexico account that bore or purported to bear only the facsimile signature of R.R. Riot. The self-inking stamp for R.C. Brown was to include the facsimile signature of "R.C. Brown" and the following: B & B Freight Forwarding Pay to Order of Dis. Exp .& Dev. Inc. For Deposit Only Lloyd's Bank Acct. #12032151 During its investigation, the Department obtained bottles of liquid deprenyl from an individual in South Carolina who had ordered the product from Discovery of Mexico, c/o B & B Freight Forwarding" at 29949 State Road 54 West. Both DEDI of Mexico and B & B Freight, which were Respondents in the underlying proceedings and alleged to have manufactured, sold, or otherwise distributed drugs that were not approved by the FDA, in violation of Chapter 499, Florida Statutes (1997). In that proceeding, B & B Freight was determined to have violated the provisions of Chapter 499, Florida Statutes (1997), as alleged in the Administrative Complaint. Prior to issuance of the 1997 Administrative Complaint, Agent Orr wrote a report of her findings based on her multi-year investigation and sent them to her supervisor, who forwarded the report to Jerry Hill, R. Ph., Bureau Chief of the Department's Bureau of Statewide Pharmaceutical Services. Mr. Hill reviewed Agent Orr's report and other information and evidence obtained during the investigation. He also talked to some of the Department agents and/or investigators who participated in the investigation at various times during the years the investigation was on-going. Based on his review of Agent Orr's report and related information and evidence, Mr. Hill believed there were several companies involved in promoting and/or advertising, manufacturing, and distributing prescription drugs that were not approved by the FDA. The specific unapproved drugs were selegiline citrate (deprenyl) and some silvicidal products, some of which had been found during inspections of the premises at 29949 State Road 54 West prior to issuance of the 1997 Administrative Complaint. After reviewing all of the information and documents provided to him, Mr. Hill believed that some of the companies were more involved in the illegal drug operation than others. However, he also believed that all of the principals had some involvement in the illegal activity. A review of the documentation, particularly certain checks, provided to Mr. Hill indicated that Josephine Kimball had full signature authority on the checking accounts of several of the corporations that the Department determined were involved in the illegal drug activity. Based on checks seized pursuant to the federal search warrants, Mr. Hill determined that checks from DEDI, written to Tours for consulting fees, were signed by Mrs. Kimball. There was also documentation that Mrs. Kimball signed checks from ASTAK that were written to Tours. Based on the information and evidence Mr. Hill had received, he believed that the corporations that were engaging in the illegal drug activities involved two principal natural persons, James and Josephine Kimball. Mr. Hill believed that he had sufficient evidence to tie Josephine Kimball and several of the companies, including DEDI, DEDI of Mexico, ASTAK, and Tours, together. Given the companies' common ownership, and Josephine Kimball's involvement in those companies, Mr. Hill was concerned that if the Department did not prosecute all the entities and individuals involved in the operation, the illegal activity would continue and the unapproved drugs would get into commerce. After careful consideration of all the information and evidence provided to him by Department investigators, agents, and other Department officials familiar with and involved in the investigation, Mr. Hill concluded that Josephine Kimball participated in the illegal drug enterprise and was, therefore, in violation of Chapter 499, Florida Statutes (1997). The Department expanded its administrative enforcement action in the underlying case by the Administrative Complaint dated June 24, 1997, based on its on-going investigation of illegal activities taking place at the 29949 State Road 54 West. Mr. Hill, on behalf of the Department, issued the 1997 Administrative Complaint, and that case was later assigned DOAH Case No. 97-3836. Pursuant to a Delegation of Authority dated February 19, 1997, Mr. Hill was authorized to initiate and pursue to conclusion any legal or administrative action authorized by Chapter 499, Florida Statutes (1997). In the underlying administrative proceeding, after taking and considering testimony and documentary evidence, the Administrative Law Judge issued a Recommended Order finding that the Department failed to prove the allegations against Josephine Kimball by clear and convincing evidence and recommending that the charges against her be dismissed. However, the Recommended Order made no finding that the Department participated in the underlying proceeding against Petitioner for an improper purpose. With regard to the corporate Respondents in the underlying proceeding, the Recommended Order found that Discovery Distributing, Inc., DEDI, ASTAK, and B & B Freight, violated the provisions of Chapter 499, Florida Statutes (1997), as alleged in the underlying proceeding and recommended that those Respondents be fined a total of more than $3.5 million dollars for the violations. The Department adopted the Recommended Order in the underlying proceeding in its Final Order. In this proceeding, Petitioner asserted that the Department brought the underlying proceeding against her for "personal" reasons. In support of this assertion, Petitioner presented the testimony of one witness, Petitioner's adult daughter, Toni Kimball, who was also a Respondent in the underlying proceeding. Toni Kimball testified that at some point, Agent Orr and/or counsel for the Department told her that the Department took the underlying action against Josephine Kimball because of Mrs. Kimball's relationship with James T. Kimball and that the case was "no longer business," but was "personal." Ms. Kimball's testimony is not credible or persuasive and is, therefore, rejected. Clearly, at the time the Department initiated the underlying proceeding and participated in that proceeding, there was sufficient evidence of Josephine Kimball's connection and involvement with the companies engaged in the illegal drug activities to bring and pursue the administrative action against her. At the final hearing in the underlying proceeding, there was voluminous evidence that appeared to tie Petitioner to the corporate Respondents found to have engaged in the illegal drug activity with which they were charged and that implicated her in some of these activities. Josephine Kimball and Tours, a company she operated, was represented by Elliot Dunn, Esquire, in the underlying proceeding, including and through the final hearing. Mr. Dunn withdrew from the case prior to Petitioner's filing her Proposed Recommended Order. Mr. Dunn did not testify at this proceeding and no time records related to his representation of Josephine Kimball or any of the other Petitioners in the underlying proceeding were available for review, inspection, or consideration. Josephine Kimball did not pay Mr. Dunn for the legal services that he provided. Instead, he was paid by ASTAK, one of the nonprevailing parties in the underlying proceeding and, later, by Strictly Supplements. There was never a contract between Josephine Kimball and Mr. Dunn that defined the terms and conditions of Mr. Dunn's legal representation on behalf of Josephine Kimball. However, during the time Mr. Dunn represented Josephine Kimball, he was in-house counsel for ASTAK and/or DEDI, a job for which his annual salary was about $52,000. Petitioner's expert witness opined that a reasonable hourly rate for an attorney representing each of the Petitioners, including Josephine Kimball was $175 to $350. Petitioner's expert did not form an opinion as to the total number of hours reasonably spent by Mr. Dunn representing Josephine Kimball in the underlying proceeding. Rather, the expert testified that he utilized Rule Regulating Florida Bar 4-1.5, which deals with the reasonableness of fees. Based on the factors in that Rule, Petitioner's expert opined that reasonable attorney's fees incurred by Josephine Kimball in the defense of the underlying case are $50,000, assuming the hourly rate of $175. Rolando J. Santiago, Esquire, provided legal services to Josephine Kimball in the post-hearing phase of the underlying proceeding. Specifically, Mr. Santiago reviewed the case file and the record in the underlying case and prepared the Proposed Recommended Order and related pleadings for Josephine Kimball. Mr. Santiago's hourly rate is $175 and he spent 92 hours providing legal services to Josephine Kimball in the underlying proceeding. Therefore, Mr. Santiago's fee for the legal work he performed for Josephine Kimball is $16,100. In light of the findings and conclusions reached in this Recommended Order, no findings are made or necessary regarding issues related to the reasonableness of the attorney's fees, the quality of the evidence presented on that issue or any other issues related to attorney's fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Josephine Kimball's Petition for Attorney Fees and Costs be DISMISSED. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2005.
Findings Of Fact Respondent Newell Jerome Griffith is a licensed physician and, at all times pertinent to this proceeding, was engaged in the practice of medicine at Winter Haven, Florida. (Testimony of Respondent) During the period 1979-1980, Respondent's investigator, Lawrence E. Dodd, Jr., conducted routine audits of pharmacies in the Winter Haven area. The purpose of his audits was to review prescriptions for controlled substances in order to determine if irregularities had taken place in the prescribing and dispensing of such substances by pharmacists and physicians. During the course of these audits, Dodd found that Respondent had issued a large number of prescriptions in preceding years for various controlled substances which fell into the category of Schedule II under Chapter 893, Florida Statutes. The prescriptions in questions were prescribed for and obtained by Gerald Cooney, Annette Groover, and Peggy Moore. (Testimony of Dodd, Petitioner's Exhibits 1- 9) The following facts relate to each of the above named individuals: Gerald Cooney Respondent has treated Gerald Cooney as a patient since approximately 1974. Medical records reflect that Respondent treated Cooney for a medullary sponge kidney or similar chronic urinary infection, and acute and chronic recurrent infection of the left knee area which originally had been caused by a bicycle injury and was aggravated by shrapnel wounds in the same area during wartime service in 1970. Since that time, he has had multiple problems with his left leg requiring hospitalizations and has had a chronic recurrent cellulitis. Be has never had full use of the extremity since that time and has had recurrent swelling and extreme pain requiring narcotics. To alleviate the pain, Respondent prescribed both oral and injectable Dilaudid. In 1977, Respondent referred Cooney to the University of Florida College of Medicine regarding his renal difficulty. On April 1, 1977, Respondent wrote the Chief, Division of Urology, at the College that Cooney continues to require, and receive oral Dilaudid in amounts greater than I am comfortable with, but see no alternative to prescribing." On April 7, 1977, the Division Chief wrote Respondent that he had been unable to find any reason for Cooney's protracted pain requiring narcotics. In July 1978, Cooney was admitted to the Veteran's Hospital in Tampa for urinary tract infection and underwent a cystoscopy. The patient was discharged with instructions to return to Respondent for treatment of his "narcotic dependency." Respondent's office notes on February 19, 1979, stated that Cooney had been taking from 14 to 24 Dilaudid tablets daily and was able to make a reduction in dosage for a day or two, but then exacerbation of all illnesses recurred. The medical records further reflect a letter written by Respondent on August 17, 1979, "To Concerned Treating Physician or Physicians" which stated that Respondent had been treating Cooney for Dilaudid abuse which had come about because of symptoms associated with his left knee and urinary problems. In September of 1978, Cooney was again admitted to a Veteran's Hospital for a urinary tract infection, sponge kidney, and Dilaudid addiction. The attending physician noted that since Cooney's dependency had not been treated by his private doctor in Winter Haven, after his last discharge, it was decided that it should be treated at that time by withdrawing Dilaudid. Cooney, however, disagreed and was discharged to be treated at a drug center in Orlando. He did not seek such treatment but obtained further prescriptions for Dilaudid from Respondent. During the period November 1976 to June 1979, Respondent prescribed over 12,500 tablets of Dilaudid 4 mg for Cooney. Additionally, Dilaudid was prescribed in injectable form in the amount of 2 mg./cc. 14 x 20 vials. Between July and December 1979, Respondent prescribed over 2500 tablets of Dilaudid 4 mg, and 24 tablets of Dilaudid 2 mg. Between December 1979 and January 1981, Respondent issued prescriptions to Cooney for almost 7500 tablets of Dilaudid 4 mg, and a prescription for 20 1 cc ampules of injectable Dilaudid. Dilaudid is a Schedule II controlled substance listed under Chapter 893, Florida Statutes. It is customarily used for pain and has addictive qualities. Respondent is of the opinion that there was no alternative to the treatment which he gave to Cooney. He recognized that the patient was addicted to Dilaudid and attempted to assist him with detoxification in 1976. At one time, Cooney was taking as many as 20 tablets per day and, although Respondent limited him to between 16 to 20 tablets per day, he acknowledged that this amount was excessive. Respondent had prescribed other drugs for the patient, but he had allergic reactions to them. (Testimony of Dodd, Deatsch, Respondent, Petitioner's Exhibits 5, 6, 9, Respondent's Exhibit 1) Annette Groover Annette Groover has been a patient of Respondent's for over 26 years and was once employed by him as a nurse's assistant and receptionist. During this period, Respondent treated her for severe migraine headaches and seizure disorder. During the course of treatment, Respondent referred the patient to neurologist for consultation at various times who placed her on anticonvulsive medication. Respondent had prescribed Talwin for the patient's headaches, but in 1970 he became aware that she had used the drug excessively and for feelings of depression at times rather than for headache relief. In September 1979, Respondent's office notes reflect that Groover had been using a Variety of medications including Talwin, and that she had revealed that if she did not take the drug "her legs start to tremble, nose starts running, and I get jittery." Respondent thereafter counseled the patient regarding drug habituation and she thereafter was successful in withdrawal from Talwin. He then placed her on a regime of injectable Demerol because other drugs did not provide headache relief. In 1977, a consulting neurologist examined the patient and characterized her headaches as a chronic problem which was most likely related to tension. Between November and June 1979, Respondent prescribed for the patient more than 1850 cc. of injectable Demerol, 50 mg./cc. In addition, 12 tablets of 50 mg. Demerol and 100 tablets of Dexedrin Sulphate, 5 mg., were prescribed. Between July 1980, and November 1980, Respondent prescribed 66 2 cc. vials of Demerol, 100 mg./cc. Although Respondent's patient records do not reflect that Respondent examined Mrs. Groover between October 7, 1977 and March 23, 1978, he issued 29 prescriptions for injectable Demerol to her during that period. Respondent maintained at the hearing that his treatment of Mrs. Groover was legitimate and that she has never shown any withdrawal symptoms during periods of several weeks when she has gone without the drug. Mrs. Groover's husband is a medical technician in the Naval Reserve and normally administers her Demerol injections. Although she has tried other drugs, most of them have conflicted with her seizure problem and Demerol does not affect her in that manner. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. It is a central nervous system depressant which relieves pain, but is addictive. (Testimony of Respondent, Groover, Dodd, Deatsch, Petitioner's Exhibits 1-2, 7) Mary E. (Peggy) Moore Mrs. Moore is a legal secretary who has been a patient of Respondent for over 20 years. Respondent has treated her primarily for diabetes and pancreatitis. Over a number of years, she was hospitalized several time after referrals by Respondent to gastroenterology specialists. Demerol was prescribed both by Respondent and specialists to control the pancreatitis attacks. Her medical records reflect that she has been subject to episodes of hypoglycemia-- insulin reaction, usually complicated by epigastric pain and vomiting. In December 1979, after Mrs. Moore had been admitted to the Winter Haven Hospital for insulin reaction, the gastroenterologist who treated her stated in his report that the patient takes an appropriate amount of properly monitored narcotics in the form of Demerol at intervals of one to three months when experiencing pain from pancreatitis. Respondent also prescribed Quaaludes for Mrs. Groover in order that she could sleep because she had been under extreme pressure and stress. She took two tablets at night off and on for two to three years. She needed Demerol in the past at particular times when she had pancreatitis attacks. In 1980, Respondent referred her to Emory University Diagnostic Clinic and it was discovered that diabetic neuropathy was causing pain rather than pancreatitis. She is not taking Demerol at the present time and no longer suffers from her former attacks. During the period when she took Demerol, her daughter who was a registered nurse administered the injections and later her husband performed this task. On one occasion in 1978, her Demerol supply was stolen when she was on a trip. During the period when she was using Demerol, her husband destroyed any that she did not use between attacks. Respondent testified at the hearing that Demerol did become a problem with her before she went to Emory University Clinic, but she has not used it since that time. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. Quaaludes are a sedative and also a Schedule II controlled substance which is suitable periodically for sleep, but the patient is subject to rapid tolerance of the drug. One-half tablet of 300 mg Quaalude is usually sufficient for infrequent users. Mrs. Moore terminated the use of Quaaludes in the summer of 1980. Respondent's medical records concerning Mrs. Moore reflect that he did not examine her during the period May 9, 1979 and October 1, 1979, but continued to issue prescriptions to her for Demerol and Quaalude. Between December 1976 to June 1979, Respondent prescribed for Mrs. Moore in excess of 1400 cc. of injectable Demerol, 50 mm./cc., and 1900 tablets of 300 mg. Qualudes. Between July 1979 through December 1979, he prescribed 400 tablets of Quaalude,300 mg., 277 cc. of Demerol 50 mg./cc., and 230 cc. of Demerol, 100 mg./cc. Between July and November 1980, Respondent prescribed 101 cc. of Demerol, 50 mg./cc., 46 cc of Demerol 100 mg./cc., and 172 cc. of Demerol, 75 mg./cc. (Testimony of Dodd, Deatsch, Respondent, Moore, Petitioner's Exhibits 3-4, 8, Respondent's Exhibit 2) In the opinion of physicians who are experts in the field of drug treatment and internal medicine who reviewed the medical records of Gerald Cooney, Annette Groover, and Peggy Moore, Respondent exercised poor judgment in prescribing known addictive medicine in excessive amounts for prolonged periods to those patients, without properly monitoring their course of treatment. They therefore are of the opinion that Respondent failed to treat those patients in conformity with recognized acceptable standards of medical practice. Specifically, they based their opinions in the case of Cooney upon the fact that Respondent was aware of the patient's addiction to Dilaudid, yet prescribed inordinate amounts of the drug over an extended period of time without taking definitive action to either cut off the patient's supply or to change the medication. A normal dose of Dilaudid would be from four to six 4 mg. tablets a day and never should exceed 12 or 14 during limited time periods for acute pain. Respondent's dosage of 16 to 20 tablets per day on a continuing basis resulted in perpetuation of the patient's addiction. As to Annette Groover's case, the expert testimony reflects the opinion that since the Respondent was aware of the patient's former dependency upon Talwin, he should have prescribed other addictive drugs, such as Demerol, in limited amounts and attempt to use non-addictive medication for the patient's migraine headaches, particularly where, as here, they result from periods of tension. They also are of the opinion that the use of Demerol by the patient reflects a pattern of abuse, but not necessarily addiction. Further, a patient with a history of drug abuse should not have been permitted to administer Demerol by injection at her home, but should have been required to have such treatment administered by a nurse or at a hospital emergency room. The basis of the expert opinion in the case of Peggy Moore is that Respondent prescribed excessive amounts of Demerol and Quaalude for the patient without adequate monitoring of the need for such drugs, and that he permitted home administration rather than at his office, or a hospital site in spite of his expressed concern over the possibility that the patient may have been abusing the use of such drugs. The above opinions are confirmed by the evidence and accepted as a basis for this finding of fact. Other opinions expressed by the expert witnesses during the course of their testimony are not considered to be supported by the evidence. (Testimony of Deatsch, Davenport) Dr. John Smythe, a Winter Haven physician who has known the Respondent for a period of 27 years, is of the opinion that although Respondent's treatment of the patients in question was perhaps "unorthodox," he was dealing with severe chronic patients and perhaps showed too much compassion in prescribing greater drug amounts than he (Smythe) might have prescribed under similar circumstances. Respondent's reputation in the Winter Haven medical community is that of an intelligent, sincere, and conscientious physician who does not hesitate to refer patients to specialists as necessary. (Testimony of Smythe) Dr. William T. Steele, a Winter Haven physician who has known Respondent since the latter has practiced in Winter Haven, is of the opinion that he is an outstanding physician with high moral character who conducts his practice as well as any physician in the community. (Testimony of Steele)
Recommendation That Petitioner suspend Respondent's privilege to prescribe Schedule II controlled substances as defined by Chapter 893, Florida Statutes, for a period of one year, but that the suspension be stayed and Respondent be placed on probation for a like period under appropriate terms and supervision established by the Board to protect the public against inappropriate prescribing of controlled substances. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1981. COPIES FURNISHED: Deborah J. Miller, Esquire Assistant General Counsel Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Robert A. Pyle, Esquire Post Office Box 557 Lake Alfred, Florida 33850
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
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. 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. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. 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.
The Issue This case is presented as rules challenges to certain matters allegedly undertaken by the Respondent and is brought in accordance with the authority set forth in Section 120.56, Florida Statutes. Petitioner asserts that there exist two rules within the meaning of Subsection 120.52(14), Florida Statutes, which have not been duly promulgated in keeping with the terms and conditions of Section 120.53, Florida Statutes. The items which are challenged by this Petition are: The Respondent's Contract Management System Manual (HRSR-0-75-1). The execution document involved in the award of contract No. 1979 DA-1, entitled "Design and Delivery of Drug Abuse Training Support Program", which was awarded to the Florida Council for Community Mental Health, Inc.
Findings Of Fact In support of its case the Petitioner presented one item of evidence. This item was received as Petitioner's Exhibit No. 1. The exhibit is a memorandum letter from Robert A. Furlough, Acting Mental Health Program Staff Director, addressed to Abe Lavine and it is entitled "Procedure in the Selection of the Most Appropriate Service Provided for Design Delivery of Training". Notwithstanding the title of the letter, it is in fact a summarization of the steps taken by the Respondent in the award of the "Design and Delivery of Training" element of the "State Training Support Program". In the course of the letter it discusses the fact that the Contract Management System Manual (HSRS-0-75-1) was utilized; however, that manual was not appended to the correspondence and was not offered in the course of the hearing. Likewise, the document of execution of the award of Contract No. 1979 DA-1, for the "Design and Delivery Training" element of the "State Training Support Program", if such a document exists, was not offered as evidence in the hearing sub judice.
