The Issue Whether Respondent, Wade Ragland, when notified by his transportation dispatcher that he had been selected for a random drug substance test, did not immediately report for testing because he had scheduled a prior maintenance appointment at his home, constitutes a refusal to be tested in violation of School Board Policy, state law, or contractual agreement. If so, was his failure to report immediately for random drug testing just cause for termination.
Findings Of Fact Petitioner, Pinellas County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Pinellas County School District. Dr. J. Howard Hinesley is the Superintendent of Public Schools for Pinellas County, Florida. Respondent, Wade Ragland, at all relevant times, was an employee of the Pinellas County School Board in its Transportation Department. Ragland was employed as a substitute school bus driver on July 20, 1998, and became a regular bus driver on August 17, 1998. On April 24, 2001, Ragland was acting as a school bus driver for the Board. He was tested for drugs in January 2001, and the test was performed after his first run, which was the Board's policy and standard procedure. Ragland's drug test result was negative. Pursuant to the Board's Policy 8.23 and Title 49 of the Code of Federal Regulations (CFR) as of January 1, 1995, all employees who are required to hold a Commercial Drivers License (CDL) as a condition of employment and who perform safety- sensitive functions, which include operating a vehicle designed to transport more than 15 persons, shall be subject to drug urinalysis testing and/or breath alcohol testing via sample collection, through random testing. The Federal Omnibus Transportation Act (The Federal Act) was at all times relevant, including April 24, 2001. Four times a year, once every three months, and on or before the 15th day of the month preceding the beginning of the quarter, a random list of drivers will be requested by a contract testing facility. The Federal Act does not require termination of a CDL employee who either fails or refuses to take a random drug test. The School Board Policy 8.23 is incorporated as Article 32 of the Agreement between the Pinellas County School Board and the School Employees Union, the exclusive collective bargaining representative for bus drivers. Under Section 8.23(3)(a) 3 of the Board's policy, random drug testing must be unannounced and shall be conducted during the selected driver's on-duty time. The Board's internal normal operating procedures for the selection of drivers to be tested in each quarter is accomplished in the following manner. Theresa Hooker, Personnel Technician and Drug Testing Program Manager since July 2, 2000, is responsible for drug testing of all personnel and maintenance of their confidential drug test records. FirstLab, the contract testing facility, is responsible for the selection of employees who will be tested during a given quarter from the list of names provided by the Board. Ms. Hooker is solely responsible for the determination of the date each of the selected employee will be tested. Upon receiving the quarterly list from FirstLab, Ms. Hooker sends the names of 20-25 selected bus drivers to Joyce Hefty, personnel technician in the Transportation Department. It is Ms. Hefty's responsibility to notify each driver, directly or through one of three dispatchers, of the selection for drug testing during a driver's first or second morning bus run. Once the selected driver reports to her office, she checks the driver's identification, provides the driver with the necessary testing paperwork and gives the location of a Board-approved testing facility. All dispatchers and bus drivers know that drivers who have been notified by dispatcher(s) that their names came up for testing are to report immediately, after completion of their first or second morning run, to Ms Hefty's office for identification check, completion of paper work, and instructions to report to a Board-approved test site for testing during their on-duty time for which they are paid. Equally known by dispatchers and drivers, is the meaning of on-duty time under School Board's Policy 8.23. On-duty time is the time required for a driver to complete his last morning run. Included is the time required for each driver to return to his/her assigned transportation compound. In those instances where a driver has permission to take the bus home, on-duty time is computed from check-out time of the first run to the time it would take a driver to return from the first or second morning run to the assigned compound. Each compound dispatcher maintains records and time sheets of assigned drivers. Should a driver selected for random drug testing not be tested, refuse to be tested, or experience the inability to provide a specimen and therefore has to wait hours to complete testing, Ms. Hefty is notified. She in turn notifies Ms. Hooker. Ms. Hooker notifies Mr. Gene Bessette, Administrator, Office of Personnel Standards. Mr. Bessette has discretionary decisional authority touching upon every facet of a particular situation. He is informed of each situation and determines whether an individual situation requires further action and, if so, what action should be taken. He determines the appropriate discipline based upon the totality of circumstances, disciplinary guidelines, and aggravating and mitigating factors, if any, and submits his final recommendations to the Superintendent of Pinellas Public Schools, Dr. Hinesley. Dr. Hinesley has authority to accept, reject or modify Mr. Bessette's recommendations. Dr. Hinesley's decision is presented to the Pinellas County School Board for final modification or approval. The chain of command would be for Ms. Hooker, upon receipt of information from Ms. Hefty, to contact Mr. Bessette. On April 24, 2001, at 9:34 a.m., Ms. Hooker received an e-mail from Ms. Hefty regarding Respondent, Wade Ragland. Ms. Hooker, however, was not in her office and did not speak with Ms. Hefty or Mr. Bessette on that day. On April 24, 2001, Ragland was acting as a school bus driver for the Board. The agreement between the Board and School Employees Union Local 1221, Firemen and Oilers, an affiliation of Service Employees International Union, which governs Ragland, provides, as does Board's Policy 8.23, that random drug testing "shall be during on-duty time." The Board's "normal random testing procedure," in effect since 1998, was to notify drivers during their first run in the morning that they are going to be sent for a random test after the completion of the first morning run. Dispatch would send a relief driver and bus to cover the second and third runs of the selected driver's route. Under the Board's normal procedure, notification to drivers would occur during a driver's first morning run. A driver's drug test, conducted at an approved testing site, would occur during the time the driver would normally be driving a second and third morning run. Under this procedure, selected drivers would not receive additional pay. Should, however, the actual drug test extend beyond a driver's normal scheduled time for morning runs, including compound check-in time, additional time would be added when computing the driver's total hours for that week. Under the operative terms of the Board's procedure, bus drivers are on non-paying "down-time" after completion of the final morning run. Down-time would continue until a driver began their evening run usually about 1:00 p.m. or later, depending on their selected bus route. "Down-time" is equal to "off-duty" time for which drivers receive no pay. The Board, at all times, was fully aware that drivers held other jobs during their down-time, a few cared for their elderly relatives, some, as did Ragland, scheduled personal appointments with service providers and others engaged in various other activities. Under the Board's procedure, "over-time," for over-time pay purposes, is the time drivers work beyond and over a predetermined time for each route. Drivers, at the beginning of each year, bid for a specific bus route. Each bus route has its own, per-week pay schedule based upon the number of morning/evening runs, the combined distance of the runs, plus any required over-time work in excess of their route time. The School Employees Union Agreement and the Board's policy mandate that drivers could be required to work over-time, when and if, the driver was requested by a dispatcher or supervisor to work over-time while the driver was on duty. For special trips, weekends, nights, etc., dispatchers or supervisors would first seek a volunteer driver. If no volunteer is found, a dispatcher would select a driver to work over-time who would receive over-time pay for the over-time work. Faced with a shortage of regular bus drivers for 2000- 2001 school year, the Board changed its herein above "normal random drug testing procedures" as described above. The intent of the Board was to comply with its Federal drug-testing requirements and to minimize expenditure of over-time pay for bus drivers. Accordingly, on August 31, 2000, Susan Detmold- Collins, Assistant Director, Transportation Department, issued a memo to "All School Bus Drivers" outlining a "Temporary Change To Random Drug/Alcohol Testing Procedure." In pertinent part the memo stated: To: ALL SCHOOL BUS DRIVERS Every year, at this time, we run into a bit of a problem with meeting our quotas for random drug/alcohol testing. As many of you know, we are required, by Federal Law, to randomly test 25 percent of our drivers each quarter. The current quarter started in July and will end in September. We always start out the school year somewhat behind in meeting our testing quotas, because many of our drivers do not work for summer school, and therefore can not be sent for testing during July and August. This year, because of our shortage of drivers, and the number of drivers we are required to send for testing, we decided to enact a temporary change to our usual procedures . . . First, I wanted to make sure all drivers were made aware of this temporary change we are making to our normal procedure and the reasons for it. Second, I wanted to reassure all drivers that we will pay them for any extra time they may end up working as a result of this change in procedure. (Since random drug/alcohol testing is usually conducted during a period of time when drivers would normally be doing their second and third runs, drivers do not usually receive any additional pay.) Third, I wanted to let drivers know we fully recognize that many of them have scheduled appointments and other things which they count on being able to do during the middle of the day, on what would normally be their "their down-time." If drivers let us know about these things, in advance, we will take steps to make sure they are not called to drug test when doing so would cause a scheduling conflict for the driver. Since a refusal to take a drug/alcohol test can have very severe consequences under Federal Law and School Board Policy, I wanted to reassure all drivers that we will work cooperatively with them and make every effort not to pull them for testing if they have made us aware that they have a doctor's appointment or other appointment or activity scheduled during their "down-time" on a particular day. Mr. Fleming and I greatly appreciate your cooperation and support during this period. . . . We are working hard with Supporting Services Personnel to recruit and train additional drivers as quickly as possible. We hope we'll have things back to "normal" by October at the latest, if not sooner. [emphasis added] By March 2001, the Transportation Department had hired sufficient bus drivers to cover the above-cited need. It is unclear, however, whether the Transportation Department made the administrative staff, dispatchers and bus drivers aware of the fact that a sufficient number of bus drivers had been hired. It is equally unclear, from the collective testimony of the Board's employees, whether the temporary change in the drug- testing procedure herein above outlined had been retracted, and if so, on what date. It is clear that as of April 24, 2001, the Transportation Department had not issued a written retraction of its August 31, 2000, temporary procedural change memoranda. From the testimony of a dispatcher, Masone, and the comments of a bus driver, Ragland, it is clear that neither Masone, nor Ragland, knew whether the normal drug-testing procedure or the temporary drug-testing procedure was in effect on April 24, 2001. It is therefore, a reasonable conclusion that some dispatchers, Masone for instance, assumed the temporary drug testing procedure was in effect wherein drivers would be required to undergo random drug-testing on down-time. Others, however, drivers like Ragland, assumed the normal drug- testing procedure was in effect and drivers could only be required to undergo random drug testing during on-duty time. This conflicting and confusing situation resulted in a misunderstanding of what was required of the drivers by dispatchers and what was required of dispatchers by drivers as it related to random drug testing procedures on April 24, 2001. It is certain, that bus drivers, dispatchers, the transportation personnel technician, the drug-testing program manager, and the professional standards office were not informed that the Board's temporary drug testing policy procedure was in effect on April 24, 2001, some six months past October 2000. On April 24, 2001, Ragland had driven to Palm Harbor University, then to Brooker Creek University and was driving to Safety Harbor Middle School, the third and last stop of his morning runs. Completion of the last morning run and the driving time required for Ragland to report back to the Tarpon Springs transportation compound checkpoint is considered on-the- clock time for pay purposes. The time of Ragland's arrival at the Tarpon Springs compound would begin his down-time. On that day, according to dispatcher Masone, Ragland's down-time began at 9:56 a.m. He would remain on down-time until his evening runs began at 1:00 p.m. later that same day. At 9:18 a.m. on April 24, 2001, Masone notified Ragland that he had been randomly selected for drug testing that morning. Ragland informed Masone that he had a prearranged service appointment at his home with an exterminator at 10:00 a.m. and he would go for testing "as soon as my appointment is over with." When asked by Masone why he did not tell his supervisor that morning when he checked in that he would not be available during his down-time, Ragland's reply was "I did not know I had to report" planned down-time activities. On this point Ragland is right. According to Gene Bessette, before the August 30, 2000, temporary change memo, there was never a written policy that required drivers to notify dispatchers or anyone else if they had a prearranged appointment during their down-time. Masone, not sure whether the temporary procedure or the normal procedure was in effect, informed Ragland that he "could" lose his job if he did not go for drug testing. Ragland replied he would go for testing after his appointment was finished, probably within the next one-half hour or approximately 10:30 a.m. At approximately 9:25-9:30 a.m. and after his conversation with Ragland, Masone called Joyce Hefty and informed her of his conversation with Ragland. Ms. Hefty asked Masone to call Ragland and have him call her. When Ragland arrived home, he called Ms. Hefty. At approximately 9:31 a.m. and after her conversation with Masone, Ms. Hefty e-mailed Susan Collins regarding Ragland's selection for random drug test at 9:18 a.m. and relayed the information as she received it from Masone regarding Ragland's position of his down-time status. Ms. Hefty does not recall if Masone told her Ragland said he would come for testing after his appointment was finished. Unable to reach Ms. Collins by telephone, Ms. Hefty called Mike Bessette regarding Ragland's situation. Bessette concluded the conversation by instructing Ms. Hefty to give Ragland another 40 minutes to cool off and see if he showed up at her office. As Masone had requested, Ragland called Ms. Hefty from his home between 9:32 a.m. and 9:44 a.m. Ms. Hefty asked if he was going for his drug test, Ragland replied that he could not come to her office at that time, but he would come as soon as his exterminator finished his work. The exterminator, Craig Schultheis, was in the house at the time of this telephone conversation and overheard Ragland's comments. Ragland's offer to Ms. Hefty to speak with his exterminator for verification was refused. Mr. Schultheis, the exterminator, arrived at Ragland's home approximately 9:40 a.m. completed his task and departed at approximately 10:05 a.m. While there, he overheard the telephone conversation and Ragland say, "When I'm done I can come in." He did not know at that time that Ragland was talking to Ms. Hefty. During the above telephone conversation, Ms. Hefty failed to inform Ragland that Mr. Bessette had given him an additional 40 minutes to report to her office. Had Ms. Hefty obeyed Mr. Bessette's instruction, Ragland would have had the option of immediately driving from his home to her office, should he chose to do so. Instead, at 9:44 a.m. Ms. Hefty, without further consultation with Mr. Bessette, her superior, concluded her conversation with Ragland by informing him that he was terminated. A few minutes later, she called the North County Dispatcher and requested that they send two drivers to pick up Ragland's bus and return it to the motor pool. Because Ragland drove from Safety Harbor Middle School directly to his home rather than driving directly to her office, Ms. Hefty testified it was too late for him to take the drug test. To her, his conduct constituted in part his refusal. This was Ms. Hefty's first occasion to encounter the situation where a driver who has been notified by a dispatcher of selection for random drug testing responded with, "No I can't; I have an (prearranged) appointment and will go when its finished." Ms. Hefty did not know whether Ragland was on "down- time" or "on-the-clock" status when he called her from his home. At the time she determined that Ragland's responses, "will go when my appointment is finished" or "not on my own time," coupled with his failure to immediately report to her office, was a refusal under her understanding of the rules. She did not know nor could she articulate the procedure or rule she relied on in reaching her conclusion. She testified she was merely doing what Polly Frush, who had the job before, had taught her. Ragland took a drug test at 1:00 p.m., on April 24, 2001, at Atlantis Clinic with a negative result. This drug test was not accepted by the Board as a substitute drug test. Under its policy, the Board accepts drug test results from only its approved and designated drug-testing facilities. Atlantis is not an approved facility. No Board employee, with whom Mr. Bessette spoke on April 24, 2001, informed him of Ragland's statement that he would be willing to go immediately to take the drug test after his appointment was concluded. If he had been made aware of Ragland's statement, he testified he would have taken that into consideration when determining whether or not Ragland's action was a refusal to take the random drug test. Assuming that Board staff had provided him with all the facts, and following the no exceptions policy (refusal equals automatic termination), Mr. Bessette made his recommendation of Ragland's termination to Dr. J. Hinesley, Superintendent of Public Schools, Pinellas County. This is a case of first impression for the Board's staff, wherein the Board issued two procedures for random drug testing, Policy 28.3 and the August 30, 2001, Memo to Bus Drivers; first impression where Board staff members and employees were not certain which one of the two procedures was in effect on April 24, 2001; and first impression where the conduct of the Board's administrative staff and the conduct of a bus driver employed the Board was reasonable given the circumstances on April 24, 2001. Petitioner's evidence in this case does not demonstrate insubordination by Ragland. The evidence does not prove that Ragland engaged in flaunting the Board's authority, repeatedly failed to heed the Board's instructions to take a drug test, openly refused to take the drug test, or failed to follow the Board's recently changed random drug testing procedure. Just the opposite is evident. On April 24, 2001, at approximately 1:00 p.m., during his normal on-duty time, Ragland took a drug test with a negative result. The facts here demonstrate, at most, Ragland's exercise of poor judgment based on the confusion created by a lack of clear directions from the Board. The confusion resulted from the Board's temporary random drug-testing procedure termination date and its normal random drug-testing procedure resumption date. Petitioner failed to produce evidence in any form to establish with reasonable certainty, which one of its two procedures was in effect on April 24, 2001. I find that on April 24, 2001, the Board's staff, at the very least, did not have a working knowledge of the applicable random drug testing procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Pinellas County School Board enter a final order finding Respondent, Wade Ragland, was not insubordinate and did not violate Board Policy 8.25(1)(u). Further finding that Respondent, Wade Ragland, did not violate School Board Policy 8.25(1)(x) by failing to comply with an existing School Board Policy. Further Recommended that Respondent, Wade Ragland be reinstated to his former position as a bus driver. DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2001. COPIES FURNISHED: Andrew J. Salzman, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street, Southwest Largo, Florida 33770-3536 Honorable Charlie Crist Commissioner 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
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional 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 The issue to be resolved in this proceeding concerns whether the Petitioner School Board has just cause to terminate the Respondent's employment as a teacher, with reference to a positive drug test for purported use of marijuana.
Findings Of Fact The Respondent has been employed at Dolores S. Parrott Middle School (DSPMS) as a teacher for a total of seven years, including the 2008-2009 school year. The Respondent taught Health, Career Education, and Physical Education. A large component of the Health curriculum is drug use prevention. It includes, as a portion of its curriculum and discussion, the subject of marijuana use. The Respondent was the S.T.A.N.D. (Students Taking Action on Drugs) sponsor at the school for several years prior to the 2008-2009 school year. He was thus responsible for providing students with information about the dangers of using and abusing drugs and the possible consequences related thereto. His position as the Health teacher and the S.T.A.N.D. sponsor made him a role model for students regarding the subject of drug use and drug abuse prevention. The principal at DSPMS for the 2008-2009 school year was Leechele Booker. She has been principal at that school for two years and was an assistant principal and teacher for some twelve years prior to that with the Hernando County School District. In her capacity as principal she is responsible for supervising and evaluating employees, enforcing policy and procedures, as well as investigating alleged violations of policies, law and recommending any resultant disciplinary measures to the District. On March 11, 2009, an unidentified woman called the principal at DSPMS and left a voice mail message identifying herself as "Michelle". She requested that the principal return her call concerning one of the teachers at the school. The principal returned the call to the number that the woman had left. Since no one answered that call, the principal left a message identifying herself. Ms. Booker received a return call approximately thirty minutes later. When Ms. Booker took the call the woman identified herself as Michelle, and acknowledged receiving the message which Principal Booker had left on the voicemail. The person identified as Michelle thereupon informed the principal that she had knowledge of one of the teachers at DSPMS engaging in recent use of marijuana. She claimed to have observed him smoking marijuana over the past weekend and told the principal of her concern at seeing that conduct by one of the teachers. Michelle also advised Ms. Booker that the teacher's fiancée was present when the teacher was smoking marijuana. She identified the teacher's fiancé as a woman named "Brenda." She then stated that the teacher's name was "Mike" and that he was the Health teacher at DSPMS. Ms. Booker then realized that there was only one teacher by that name at the school, the Respondent, Michael Provost. She was already aware that the Respondent's fiancée's name was Brenda, having met her on several occasions. The principal ended the call by advising Michelle that she would investigate the matter and thanked her for the information. She did not request any additional contact information from Michelle. She did not learn additional facts concerning where the Respondent had been seen using marijuana, when it occurred, how Michelle knew the Respondent, or the nature of her relationship with the Respondent. It is likely, although not clear from the record, that Principal Booker did not want to reveal to the caller what her thoughts might be concerning the identity of the teacher who was the subject of the complaint. After ending the phone call with Michelle, Ms. Booker met with Assistant Principals Gary Buel and Nancy Vasquez. She told them of the phone call and the nature of it and they discussed what actions should be taken, based upon the Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace." Ms. Booker then contacted the district office of the Petitioner and spoke with the secretary in "Human Resources." She was thereby advised that an investigation would have to be conducted and that Heather Martin, the Administrator for the Department of Human Resources, would have to be involved. After contact with the district office, Principal Booker and Ms. Vasquez discussed the matter and agreed that they had "reasonable suspicion," under the above-referenced policy, to require the Respondent to take a drug test. The Petitioner maintains that that reasonable suspicion is based upon the information provided in the phone call with Michelle, as well as the fact that the principal was aware that the Respondent was having financial difficulties and needed to be paid for extra-curricular duties immediately, rather than waiting for the normal payment process. He was known to have requested permission to leave work early more frequently than other employees. Ms. Booker called the Respondent to her office to report the allegations lodged against him by the caller. She advised him of the phone call and the reference to smoking marijuana. She informed him that she believed she had reasonable suspicion to have him drug-tested. She told him that Mr. Buel would escort him to the testing facility. The principal then left her office, but was called back because the Respondent had some questions for her. She located a Union representative, Marlene Richie, who accompanied her back to the office to confer with the Respondent. When the principal and Ms. Richie arrived at the office, the principal informed her of the allegations against the Respondent. Ms. Richie made some phone calls to Sandra Armstrong, the Executive Director of the Teachers Association and Joe Vitalo, the Union President. After these phone conversations, Ms. Richie informed Ms. Booker that the Respondent wished to speak to her alone. Ms. Booker spoke with the Respondent alone, in her office, and he informed her that he had been smoking marijuana and told her that the test would be positive. The Respondent admitted his marijuana use because he respected the principal, and it was in everyone's best interest for him to be honest and candid about his problem. He was not coerced or under any pressure to make the admission. He made the admission voluntarily. The Union representative, Ms. Richie, then rejoined Ms. Booker and the Respondent in the office, and the Respondent informed Ms. Richie of what he had told Ms. Booker concerning his marijuana use. Ms. Booker informed the Respondent that he would still need to have drug testing, and she also discussed the Employee Assistance Program ("EAP"). The Respondent volunteered to enroll in the EAP program and made an appointment to see a counselor. The Respondent had not requested assistance or a referral to the EAP before the conversation with the principal on this day, when he admitted his marijuana use. There are two means of referring employees to the EAP under the district's drug and alcohol policy; either self- referral by the employee or referral by management. Under this policy, no disciplinary action is taken when an employee self- refers to the program, or when he or she admits to a drug or alcohol problem and is referred to EAP by a manager. The Petitioner maintains that the Respondent did not volunteer that he had a drug or alcohol problem until confronted with the principal's suspicion and direction to take a drug test. At the same time, however, the Petitioner acknowledges that the Respondent's admission concerning his marijuana use was not because he felt coerced. The Petitioner maintains that, in its view, the request for EAP assistance was not a voluntary request and that therefore, under the Petitioner's policy, disciplinary action can still be taken. The preponderant, persuasive evidence, based upon credibility of the witnesses, including the Respondent, demonstrates that the request for EAP assistance was a voluntary one and was done in conjunction with the principal voluntarily discussing the availability of the EAP program to the Respondent. The Respondent was under no pressure or coercion when he made the admission. In fact, the Respondent, as well as the Petitioner, have presented substantial argument concerning whether there was even "reasonable suspicion," under relevant case law, for the principal to order a drug test. Because of the findings made, and conclusions reached herein, the question of whether "reasonable suspicion" for drug testing existed is immaterial, in light of the District's Policy 6.33 and Section 112.0455, Florida Statutes (2008). After meetings and conversations with Union representatives, the Respondent agreed to the drug test and the results were received on March 18, 2009. They indicated that the test was positive for the presence of marijuana. The Respondent was suspended with pay on March 12, 2009, pending the outcome of an investigation. The Respondent was advised in writing of his suspension at the time of his meeting with the principal and through a letter from the Superintendent. A pre-determination conference was scheduled for March 20, 2009, after the receipt of the drug test results. This was to provide the Respondent an opportunity to dispute any of the information collected through the investigation, before discipline was recommended. The Respondent attended the conference and again admitted to using marijuana and stated that he was aware of the Drug and Alcohol-Free Workplace Policy. He explained that his drug use was the result of personal problems he was experiencing. Following the pre-determination conference, and before making a disciplinary recommendation to the Superintendent, Ms. Martin attempted to contact the informant Michelle, to confirm her story. It was important for Ms. Martin to ensure that she had a name and phone number of the informant since the District does not act on anonymous complaints. A complaint is deemed anonymous if the District has no contact information and no name. Ms. Martin called the number that Michelle had left with the principal and the phone was answered by someone who said it was "Chrissy's phone." Ms. Martin asked for Michelle and a different person came on the line and identified herself as Michelle. The phone number and phone in question were registered to a Chrissy Campbell. Chrissy Campbell is married to the Respondent's fiancée's brother. The Respondent and Campbell are acquainted with each other but do not get along. Ms. Martin advised Michelle that she was calling in reference to the complaint received earlier by the principal. She stated that the District was conducting an investigation and asked if Michelle was willing to provide additional information. At that point, Michelle refused to give any additional information. In her conversation with Michelle, Ms. Martin did not use the Respondent's name, nor did she indicate the call concerned a drug test. After her conversation with Michelle, Ms. Martin reviewed the drug test results and the personnel file, including the Respondent's disciplinary history, before making a recommendation for discipline to the Superintendent. The Respondent's personnel file contained three additional discipline records. In 2005, he received a written warning concerning a violation of the Professional Code of Ethics regarding an inappropriate comment. In 2007, he was reprimanded in writing, stripped of his S.T.A.N.D. sponsor duties and suspended without pay for ten days for failing to properly handle a student's reported drug use. In 2008, he received a Letter of Direction for failing to follow the curriculum and being too personal with students. Ms. Martin took that disciplinary history into consideration in making her recommendation to the Superintendent for termination of employment. By letter of March 23, 2009, the Superintendent advised the Respondent of his recommendation to the School Board that the Respondent be terminated from employment. This proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County dismissing its Petition for Termination of Employment and reinstating the employment of the Respondent with attendant provision of back pay and all related benefits. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2009 COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Wayne S. Alexander, Superintendent School Board of Hernando County, Florida 919 North Broad Street Brooksville, Florida 34601 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is a certified corrections officer, certificate number 68527. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine. The positive test was observed by Sgt. Farless and Respondent. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance. The area Respondent was traveling through is known as a high drug area with a high crime rate. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
The Issue In his Proposed Recommended Order, counsel for Petitioner concedes that the crime to which Respondent pleaded guilty is classified as a federal misdemeanor, not a felony. For that reason, Count II of the Complaint is no longer in issue. The remaining issue for determination is whether the crime to which Respondent pleaded guilty involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, and if so, what disciplinary action is appropriate.
Findings Of Fact The following Findings of Fact are adopted, verbatim, from both parties' Proposed Recommended Orders: Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the Rules promulgated pursuant thereto. Respondent Bruce E. Walker is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 0110184 in accordance with Chapter 475, Florida Statutes. The last license to Respondent was as a salesman, Quest and Company, LTD, 13829 - 80th Avenue North, Seminole, Florida 33542. On September 27, 1985, in federal court, Respondent was convicted upon his plea of guilty to the criminal offense of conspiracy involving adulterated and misbranded medication. Respondent was sentenced to be imprisoned for one year but the imprisonment was suspended. Respondent was placed on probation for 18 months of community service, fined $1,000.00 and a $25.00 special assessment was imposed. The crime of which the Respondent was convicted is classified as a federal misdemeanor by law. The Respondent was convicted of the federal misdemeanor as a result of a plea to a charge of conspiracy although the Respondent quite candidly still denies that he conspired to do anything wrong, other than to provide unused free medication samples received from various drug manufacturing companies such as Pfizer, Upjohn, or whoever else called upon his office. The unused medication samples are quite often provided to the American Association of Retired Persons (AARP) or other charitable health care providing services. When the Respondent was approached by an individual offering to take one or more several [SIC] large sackfuls of the free medical samples and dispose of them, the Respondent was more than willing. Previously, the Respondent had been able to have the unused medicine samples incinerated by a friend at a funeral home. The Respondent in fact provided medicines to this individual on two occasions, one of which was after he had received payment from his "Cocon- spirator." (Transcript pages 25-29.) The parties concur in the official recognition of Florida Statutes and the Florida Administrative Procedure Code, in particular Section 20.30, Chapters 20, 455 and 475, Florida Statutes. Respondent was one of a large number of practicing physicians in Florida and elsewhere who were drawn into a scheme for the sale of free sample medications. While Dr. Walker solicited some free drugs from companies, he either used those personally or gave them to patients whom he knew could not otherwise afford them. The samples he sold were unsolicited surplus. None were "controlled substances." Dr. Walker sold the samples on two occasions. On the first occasion he was approached by an individual whom he did not know; he gave the individual two garbage bags full of the samples, without any discussion of payment. Later, an envelope with money was left with his secretary. He had some misgivings about the money but did not question the individual when the second collection of samples was made. When the F.B.I. contacted him regarding their investigation, he cooperated fully. This was acknowledged and taken into consideration by the Government when he was sentenced. Dr. Walker was released from probation on March 26, 1987. The suspension of his medical license has been stayed pending the outcome of an appeal.
Recommendation Based on the foregoing, it is recommended that the Administrative Complaint in this case be dismissed. DONE and ORDERED this 22nd day of June, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2183 The following constitute my rulings on the parties' Proposed Findings of Fact. Petitioner's Proposed Findings of Fact #1-7 Adopted in Paragraph #1. (no paragraph #3 provided.) Respondent's Proposed Findings of Fact #1-7 Adopted in Paragraph #1. (no paragraph #3 provided.) #7-14 Rejected as cumulative and unnecessary. #15 Adopted in Paragraph #2. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gardner W. Beckett, Jr., Esquire 123 Eighth Street, North St. Petersburg, Florida 33701 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S 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 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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 Whether the Respondent, Eventide Homes, Inc., should pay a fine of $800.00 for violations of the minimum resident care standards for Adult Congregate Living Facilities set forth in Rule 10A-5.0182, Florida Administrative Code.
Findings Of Fact During the applicable time period, Eventide was licensed to operate as an Adult Congregate Living Facility at the following location: 2869 Sarah Drive, Clearwater, Florida. On April 19, 1988, a licensure renewal survey was conducted by the Department on the premises in order to monitor Eventide's compliance with licensing standards for Adult Congregate Living Facilities. As a result of the survey, citations were issued to the facility for the following deficiencies: Centrally stored medications were not kept in a locked cabinet. Medications were transferred from one storage container to another by someone other than a pharmacist. Unlicensed staff was assisting in the distribution and supervision of self-administered medication in an impermissible manner. The deficiencies were brought to the attention of Dianne Schwartz, President and Administrator of Eventide. It was explained by a representative of the Department that if medisets were used within the facility, a pharmacist was required to complete the transfer of the medications out of their original containers into the medisets. Further, it was explained that unlicensed staff was not allowed to place medication in the mouths of residents. Such staff members could only assist in the opening of medication containers by residents and the placement of the medication into the hands of residents for self- administration. Written verification of the deficiencies was given to the facility administrator, along with a time deadline for correction of the listed deficiencies. The facility was required to correct the deficiencies by the end of April, 1988. On July 12, 1988, the Department representative revisited the facility to determine if the deficiencies had been corrected. The medisets used by the facility were now filled and checked on a weekly basis by Jay Shurline, a pharmacist with Mission Hills Pharmacy. Receipts for the pharmacists's services have been provided as Respondent's Composite Exhibit A. During the July 12, 1988 revisit, unlicensed staff members were observed placing small paper souffle cups containing medications in front of residents so that the residents could administer their own medication. The actual placement of the medications into the souffle cups was completed by the Facility Administrator, a registered nurse. Occasionally, staff members would put the medication on a resident's plate, if this was requested by the resident. Although these new procedures were not as egregious as the prior practices, they were on the same continuum and were contrary to the requirement that residents administer their own medication from the pharmaceutical container into their mouths, without intervention by others. It was explained to the Facility Administrator that the revised procedure for distributing medications was still a deficiency in that medications were still being transferred from one storage container (medisets) to another (souffle cups) by someone other than a pharmacist (Facility Administrator). In addition, the revised procedure regarding the supervision of self-administered medication by residents still failed to comply with the standards for supervision. The medications were removed from the control of residents in an unnecessary procedure. Residents in this type of health care facility are able to administer their own medication unless their physician indicates otherwise. In those instances, a licensed staff member must administer the medication. These ongoing deficiencies were to be corrected immediately. The facility was revisited on October 26, 1988. During this visit, the Department representative was informed by a staff person of revised procedures used for the supervision of medication. These procedures, as explained by the staff member, were found to be unsatisfactory by the Department's representative. The revised procedures discovered by the Department on October 26, 1988, were presented at hearing in the form of impermissible hearsay. The Facility Administrator denied the allegations and explained that small, empty cups were placed by each resident's dinner plate for their personal use. A resident may use the cup for water to assist in the swallowing of medication or to pour his or her own medication. For example, one resident suffers from palsy and finds it easier to take all of his medications at one time. The small cup is used by him to carry medications from his hands to his mouth. No mistakes regarding the accuracy of dosages or the use of medications occurred during Eventide's distribution and supervision of self- administered medication in an impermissible manner.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(a)4, Florida Administrative Code, as alleged in Paragraph (3)(a) of Count I of the Administrative Complaint. That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(a)6b, Florida Administrative Code, as alleged in Paragraph (3)(b) of Count I of the Administrative Complaint. That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(b)2, Florida Administrative Code, as alleged in Paragraph (3)(c) of Count I of the Administrative Complaint. That the Respondent be found not guilty of having violated Rule 10A- 5.0182(3)(b), Florida Administrative Code, as set forth in Paragraph (4)(a) of Count II of the Administrative Complaint. That the civil penalty assessed against the Facility Administrator for each violation be limited to the minimum which can be assessed under Section 400.419(3)(c), Florida Statutes, which results in a total fine of $300.00. DONE AND ENTERED this 20th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2238 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #3 and #4. Rejected. Contrary to fact. See HO #6. Accepted. See HO #10. Accepted. See Preliminary Statement. Accept the first sentence. See HO #3 and #8. The rest of paragraph 6 is improper summary and argument. Attempts to shift burdens of proof to Respondent. Accept that Department representative observed improper procedures on April 19 and July 12. See HO #3, and #8. Reject as to October 26. See HO #10 and #11. Proposed findings outside the scope of the allegations set forth in the Administrative Complaint are rejected on that basis. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See Preliminary statement. Accepted. See HO #3 and #7. Reject first sentence. See HO #3 and #8. Reject second sentence. See HO #8. Accept third sentence. See HO #12. COPIES FURNISHED: Edward A. Haman, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 James Schwartz, Esquire 416 Drew Street Clearwater, Florida 34615 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
