The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody Control Form and on the label affixed to each specimen bottle was correct. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of cannabinoid. It did not change the positive result; it merely quantified it. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). Respondent's certification be revoked. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie B. Ward 1043 Booker Street Sebring, Florida 33870 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Sapa Precision Tubing Rockledge, LLC (Respondent), discriminated against Christopher Brian Edwards (Petitioner) on the basis of age.
Findings Of Fact Petitioner is over 40 years of age, and was employed by Respondent from 2009 until May 21, 2013. Prior to his termination, Petitioner received favorable work evaluations and demonstrated good work attendance. Respondent is a manufacturing company that makes aluminum tubing for commercial purposes. Safety in the work environment is critical to Respondent’s success. Part of Respondent’s safety regimen includes maintaining a drug-free workplace. To that end, Respondent retains an outside company, Edge Information Management, Inc. (Edge), to conduct random drug tests of Respondent’s employees. Respondent’s drug-free policy is set forth in its employee handbook that is provided to all employees. Petitioner received a copy of the handbook and knew or should have known of the company’s drug-free policy upon his employment. In order to screen Respondent’s employees, Edge creates a random matrix that assigns all employees a number. The computer program used by Edge then generates a random sampling of employees for the given test date. In this case, approximately one month before the test date, Edge randomly selected employees who were to be tested on May 14, 2013. Petitioner was named among the randomly selected employees. Edge is accredited by the Drug and Alcohol Testing Industry Association and is fully authorized to conduct drug screenings. Edge employee, Leonard Clarke, was fully trained in the process of collecting samples to assure conformance with all applicable testing standards. Prior to the test date, Petitioner attended a meeting with other employees and voiced concerns to Respondent regarding working conditions by “bringing up stuff that they were not comfortable with.” Although not part of his original claim of discrimination, Petitioner now maintains that his termination was also in retaliation for his comments during that meeting. On May 14, 2013, based upon the employees randomly selected by Edge, Respondent notified supervisors to send the employees to a conference room for drug testing. Clarke prepared the paperwork and waited for the 27 employees to report for the screening. No one at Respondent selected the employees to be screened, conducted the collection of samples, or tested the samples taken. Clarke was solely responsible for the drug testing. All of the employees were required to review the testing form, sign, and date it before returning it to Clarke. Each was given a lollypop stick with a sponge attached to one end. By placing the sponge in the mouth and collecting saliva, the sample can then be tested to issue a preliminary result for drugs. Clarke had a difficult time collecting a saliva sample from Petitioner. Eventually, on the second or third attempt Petitioner produced enough saliva to place the sponge in the vial to allow the test strip to render a result. The test strips are designed to react to substances such as marijuana, cocaine, or amphetamines. In Petitioner’s case, the test strip showed positive for drug metabolites and/or alcohol. After testing positive on the saliva test (the only employee who did), Clarke asked Petitioner to give a urine sample so that a complete drug analysis could be performed by the Edge lab. Petitioner consented to all testing procedures and the collection of samples on May 14, 2013. For the purpose of the urine sample, Petitioner was given a cup and asked to go into the adjacent bathroom to produce the sample. When Petitioner returned the cup to Clarke it was noted that the cold, clear liquid did not register a temperature. Based upon his training, Clarke suspected that Petitioner had not urinated into the cup and discarded the sample. Next, Clarke accompanied Petitioner while a second sample was collected for urinalysis. Clarke marked the sample, packaged it in accordance with all applicable standards, and sent it by FedEx to Edge’s lab. Petitioner’s testing went from “random” to “reasonable suspicion/cause” based upon his saliva test and behavior with Clarke. It appeared to Clarke that Petitioner attempted to evade the drug testing process. Based upon the preliminary test results, Petitioner was suspended from work. Petitioner knew he had tested positive for drugs and that his urine sample would be further evaluated. It is undisputed that Petitioner’s urine tested positive for cocaine. Prior to notifying Respondent of the test results, Edge notified Petitioner that the sample tested positive for cocaine and gave Petitioner an opportunity to contest or explain how the result might be erroneous. Petitioner did not contest the result and has not disputed the presence of drugs in his saliva and urine on May 14, 2013. On May 21, 2013, Edge sent Petitioner’s drug results to Respondent. At that time, Respondent decided to terminate Petitioner’s employment with the company, and Chapman notified Petitioner by telephone that he was terminated because he tested positive for cocaine. Respondent gave Petitioner an opportunity to contest the drug results, but he did not. At hearing, Petitioner did not contest the drug results. Of the persons tested with Petitioner, twenty were younger than he and six were older. Only Petitioner tested positive for drugs. In the last ten years, all employees at Respondent who have tested positive for drugs have been terminated. No one younger or older than Petitioner has been retained if they tested positive for drugs. Petitioner’s age did not impact Respondent’s decision to terminate his employment. None of Petitioner’s comments were considered in the termination of his employment. Petitioner did not raise retaliation with FCHR and has not established that Respondent retaliated against him because of comments he made during a company meeting. In short, Petitioner was terminated because he tested positive for cocaine. There was no competent, substantial evidence that persons younger than Petitioner were treated differently from Petitioner or were subject to dissimilar policies or practices. All of Respondent’s employees who tested positive for drugs have been terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of July, 2015. COPIES FURNISHED: Christopher Brian Edwards 4605 Ocean Beach Boulevard Cocoa Beach, Florida 32931 Mary Susan Sacco, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.
Findings Of Fact Respondent began working for the City in August 2001. In November 2012 he was reclassified as a Stormwater Technician II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated effective March 11, 2015. See City Ex. 6. Respondent then requested a hearing to contest that action. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent." Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II. DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2015.
The Issue The issue to be determined is whether Respondent has violated sections 456.072(1)(hh) and 458.331(1)(s), Florida Statutes (2009), and if so, what sanction should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 73326. Respondent's address of record is Post Office Box 18977, Panama City Beach, Florida 32417. His medical practice is radiology. Professionals Resource Network, Inc. ("PRN"), is an impaired practitioner's program authorized pursuant to chapter 456, which monitors the evaluation, care, and treatment of impaired healthcare professionals. Among those functions performed by PRN or as part of its program are random drug and alcohol screens, and the exchange of information between treatment providers and the Department for the protection of the public. PRN also arranges for evaluations of professionals to determine whether any impairment a professional may have, whether attributed to use of drugs or alcohol, or physical or mental illness, presents a danger to the health, safety, and welfare of the public should the professional continue to practice his or her profession. July Rivenbark, M.D., is a board-certified psychiatrist and addictionologist, and is the current medical director of PRN responsible for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. During at least part of the time relevant to these proceedings, Dr. Rivenbark was the assistant medical director and Dr. Raymond Pomm, M.D., was the director. Dr. Natalie Sohn was, during approximately 2005-2007, Respondent's girlfriend, with whom he shared a home. On or about December 6, 2006, Respondent and Dr. Sohn were involved in an incident involving domestic violence. During the incident, Respondent twisted Dr. Sohn's arm and pulled her hair, causing her scalp to bleed. Dr. Sohn testified that Respondent had consumed 3-4 drinks of cranberry and vodka prior to the incident and was under the influence of alcohol. When asked about the incident, Respondent indicated that his hand got caught in Dr. Sohn's hair, and he "accidently" tore a piece of her scalp. Although Dr. Sohn "dropped the charges", the State Attorney did not. As a result, Respondent entered what he referred to as a "pass and plea" agreement in February 2007, requiring "small counseling sessions." Respondent completed a court-mandated batterers intervention program for which a discharge summary by Dr. Connie Ingraham was issued on or about May 3, 2007. Shortly after the completion of the batterer's intervention program, Respondent was involved in a second domestic violence incident. On May 11, 2007, police were called to Respondent and Dr. Sohn's residence for a second time. Respondent states that Dr. Sohn "fell." The police report, however, states that her elbow was bruised and bleeding slightly, and that she also had slight swelling in her lower back area.1/ More importantly, however, for the purposes of this proceeding, is the statement by the arresting officer: It should be noted while talking with Mishlove, he appeared to be slightly intoxicated and at times appeared not to understand what I was saying either from the use of alcohol or drugs. While I was completing the paperwork in my vehicle for Mishlove, he began to cry at times and he seemed to be very upset. Dr. Sohn testified in her deposition that during the time she shared a home with Respondent, he often drank alcohol, and also used cocaine. She also reported that toward the end of their personal relationship, she and Respondent were asked to leave a cruise ship while docked in Copenhagen because of Respondent's actions after drinking. Dr. Sohn's testimony is credited. From August 2006 through August 2007, Respondent was employed by Imaging Consultants of South Florida ("ICSF").2/ At that time, Dr. Carl Rosencrantz was the managing partner of the office group. While Respondent was employed by ICSF, St. Mary's Hospital performed a background check in connection with reappointment of his staff privileges. Staff at St. Mary's called Dr. Rosencrantz, because their background check revealed the two domestic violence incidents described above. While Dr. Rosencrantz initially thought the problem was an interpersonal issue, he soon believed that alcohol was involved. Dr. Rosencrantz spoke to Respondent about the reports, and asked him to contact PRN for treatment. Respondent denied he had an alcohol problem and refused to contact PRN. As a result of his concerns, Rosencrantz ultimately terminated Respondent's employment with ICSF. On or about August 27, 2007, Dr. Rosencrantz referred Respondent to PRN, citing the two episodes of domestic violence. His referral states that there had been an incident where Respondent did not call in and missed work for five days, the lab techs at St. Mary's Hospital are afraid of him, and that "there appears to be some underlying anger issues along [with] the use (excessive) use of alcohol." Also received by PRN was an e-mail from Steve Robertson, M.D., another doctor with the same group, dated August 31, 2007. The e-mail stated that Respondent was suspended from the group after showing up intoxicated at Good Samaritan Hospital the day before. Dr. Robertson's e-mail to PRN stated: fter being confronted by the chief radiologist at that hospital yesterday, he made implied threats against the radiologist and his family and had to be escorted by security out of the hospital. Today he attempted to show up for work at St. Mary's Hospital as per original schedule despite being told that he was on indefinite suspension and appeared again to be intoxicated as per staff at that hospital and was again escorted out of the facility by security. . . . Dr. Robertson testified in his deposition that he was present when Dr. Mishlove appeared for work at Good Samaritan Hospital, and that he was not focusing, "smelled like a bar," had an unstable gait and could not sit still. Dr. Robertson stated, Respondent was "definitely not the sort of person that really could sit down and perform their duties as a radiologist and focus on critical patient needs." On August 30, 2007, Dr. Sohn also referred Respondent to PRN, stating that his drinking was out of control. This same day, Respondent had an encounter with the police at the Breakers Hotel in Palm Beach. The police report states in pertinent part: On 8/30/07, at approximately 1700 hours, I responded to 1 South County Road, Breakers Hotel, in reference to an unwanted guest. . . . We made contact and identified him as Lawrence Mishlove w/m 10/1/62. I asked Mishlove what was going on and he said he did not know. I immediately could tell Mishlove was intoxicated due to his demeanor, the smell of alcoholic beverage on his breathe [sic], and his slurred speech. Mishlove was also staggering around with a food substance on his face and his pants not zipped up. I informed Mishlove of the trespass issue with the hotel and made sure he understood. Mishlove agreed that he understood and Ofc. Madden made arrangements for a cab ride. Mishlove said he did not need a cab and was going to drive himself home. I informed him that he was not driving due to his intoxication and reminded him of the cab. At this point, Mishlove began to get irritated and began demanding my name and badge number. I complied by offering a business card with my badge number on it numerous times. Mishlove would not take the business card, but still demanded the information. He then began to state to Ofc. Madden and I that he better not ever see us in his emergency room. Mishlove was stating this in a manner and tone implying we would not receive medical attention if we were in need. Based on the referrals from Respondent's employer and Dr. Sohn, Debra Troupe from PRN attempted to call Respondent on September 5, 2007. However, he did not speak to her. On September 6, 2007, Dr. Pomm wrote to Dr. Mishlove, notifying him that PRN had received information that he may be experiencing difficulty affecting his ability to practice with reasonable skill and safety, and encouraging him to contact Debra Troupe within three days. Dr. Pomm advised that "failure to do so will require my referral of the information received to the Department for appropriate investigation." Respondent signed for the letter on September 19, 2007. In the meantime, however, Dr. Mishlove was arrested for DUI in Palm Beach, Florida, on September 7, 2007. The police incident report states in pertinent part: When I approached the car, I knocked on the glass so the driver would open the door. As soon as the door was opened, I was overwhelmed by the odor of an unknown alcoholic beverage. The driver had heavy bloodshot eyes. I asked the driver to exit the car which he did, however, while standing he had to lean against the car for support. The driver, [was] later identified as Lawrence A. Mishlove, white male, dob/100162, by his Florida d/l. . . . I had to ask Mishlove several times to walk to the rear of the car. He appeared unsteady on his feet and seemed to need to lean on the car for stability. I had to ask him several times for his FL d/l before he would produce it. His speech was slow and slurred when he spoke. Officer Anderson and Riley arrived as back up. . . . . I asked Mishlove to submit to roadside sobriety tasks. He refused. Officer Anderson advised him that failure to submit to roadside tasks could be used against him in court. He refused again. Based on the evidence prior to the refusal, I placed Mishlove under arrest for DUI. While I was attempting to handcuff Mishlove, he began to yell that I was hurting him. Whenever I touched him, he would scream and yell. He was placed into the rear passenger side seat and belted in. . . . While I was traveling to the PBSO Jail, Mishlove threatened me on several occasions. He said he was a surgeon. He told me if I ever ended up on his operating table, that he would see to it I was through. He also said if I had a wife and kids, he would make sure they were through also. He also continually threatened to have me fired. . . . Mishlove refused to give his name or any other info. He refused to give a breath sample. I read implied consent and he refused again. I read his constitutional warnings and he asked for his attorney. I stopped questioning him at this time. I put Mishlove into a cell while I finished my paperwork. After I finished my paperwork, I had Mishlove exit the cell and sit. He began telling everybody in the room that I was gay. He accused me of hitting him repeatedly. He refused to sign the citations for DUI and failure to maintain a single lane. I charged with failure to sign a citation. I packaged up Mishlove's property which included $1160.25 in cash. I removed his belt. I placed him back into handcuffs and told him to hold onto the rear of his pants. While walking to intake, he let his pants go and they dropped. PBSO Intake deputies assisted Mishlove to intake. Whenever a deputy would touch Mishlove, he would yell that he was being hurt. " On September 25, 2007, Dr. Pomm notified Respondent by certified mail that his case had been referred to the Department of Health. On or about October 17, 2007, Respondent finally called PRN and agreed to be evaluated. He reported that he was suspended at DelRay Hospital and had some problems at Good Samaritan, but denied that there was any basis for the "fabricated" allegations against him. On October 29, 2007, Respondent was evaluated by Dr. Jason Jerry, M.D., a board certified psychiatrist and addictionologist. Dr. Jerry's psychiatric assessment was completed December 5, 2007. Dr. Jerry reviewed materials supplied by PRN and interviewed Respondent. During the evaluation and at hearing, Respondent claimed that he rarely drank alcohol and never used illicit drugs. He stated that his use of alcohol was limited to one or two drinks of wine or beer a month. With respect to absences from work, he claimed to be absent due to a virus. With respect to past psychiatric history, the report indicates that Respondent was Baker Acted in 2002 by the Chief of Staff at the hospital where he worked, and stayed in a psychiatric facility for one week. Respondent claimed the involuntary commitment was initiated after a contract dispute. Dr. Jerry's report indicated that Respondent was also evaluated by a psychiatrist in connection with a child custody hearing. In terms of his mental status evaluation, Dr. Jerry reported that Dr. Mishlove arrived fifteen minutes late for his scheduled evaluation, and that, during the process of being checked in, got up from his chair and closed and locked the door, and expressed concern regarding the confidential nature of the evaluation. He was dismissive of all of the allegations against him and was reluctant to give consent to allow access to any prior records or treatment providers.3/ The Axis I diagnosis identified by Dr. Jerry was to rule out alcohol abuse (DSM IV 305.00) and rule out alcohol dependence (DSM IV 303.90). With respect to Axis II, he listed rule out Narcissistic Personality Disorder. All three diagnoses are recognized in the Diagnostic and Statistical Manual IV. In his recommendations, Dr. Jerry stated: It is the opinion of the undersigned that Dr. Mishlove's aberrant behavior over the preceding 12 months calls into question his ability to practice medicine with reasonable skill and safety. Until the etiology of such behavior can be clarified, it is recommended that he should only be allowed to return to practice under the close supervision of The Florida Professionals Resource Network (PRN). Furthermore, a protracted urine monitoring program (perhaps two years) that includes ethyl-glucuronide (EtG) may help corroborate or refute Dr. Mishlove's claim that he rarely consumes alcohol. Since the patient's reported alcohol consumption, roughly two drinks per month, should not be enough to trigger urine EtG, any such result would merit immediate re-evaluation of this individual's fitness to practice medicine. On January 11, 2008, Respondent signed a two-year Substance Abuse Monitoring Contract with PRN. The contract included random urine drug screens and weekly facilitated groups. The group sessions were required to assess and observe Respondent's mental and physical condition. Random urine screens were required to detect drugs or alcohol excreted through the urinary system. The contract signed by Respondent contained, among others, the following provisions: I agree to participate in a random urine, drug, hair testing and/or blood screen program through FirstLab/U.S. Drug Testing Laboratories within twelve hours of notification. I will release by waiver of confidentiality the written results of all such screens to the Professionals Resource Network to validate my continuing progress. I agree to abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medications unless ordered by my primary physician, and when appropriate, in consultation with the Professionals Resource Network, I agree to send copies of all prescriptions to the Professionals Resource Network for my file. * * * Lewis Hoechstetter, Ph.D., LHC, CAP, CAS, SAP has been selected as my monitoring professional located [insert address] and telephone number]. I will attend a weekly PRN monitored professional group with Dr. Lewis Hoechstetter.[4] I agree to notify the Professional Resources Network of any changes in physical or mental health, address or employment. * * * I agree to notify the [PRN] in the event of use of mood altering substances without a prescription from one of the physicians above. I agree to provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and be in compliance with the above requests. * * * 12. I agree to return messages left by the PRN staff within 24 hours. My case manager is Debra Troupe. * * * 15. If I fail to comply with this contract, it may result in my being reported to DOH through the PRN and/or withdrawal of advocacy with appropriate agencies. * * * 17. I will complete psychological testing within ninety (90) days. The contract also includes an Authorization and Consent to Release Confidential Information, which in turn includes the following: I, Lawrence Mishlove, M.D., pursuant to 42 CFR Section 2.31 (1999), hereby authorize the Professionals Resource Network to disclose any records maintained by the [PRN] in regards to my treatment and/or participation in the program to the Department of Health for any purpose permitted by law including but not limited to potential disciplinary action against my professional license. This information may include, but not be limited to, medical information, psychiatric, psychological, and drug and/or alcohol treatment records as well as information regarding my participation in the [PRN] program. I hereby release the [PRN] from all legal liability that may arise from the release of said information. * * * I understand and specifically consent that, regardless of any subsequent revocation of this consent, any information that has been forwarded from the [PRN] to the Department of Health or their designee in reliance upon this consent may be used by the Department of Health or their designee for any purpose permitted by law, including, but not limited to, potential disciplinary action against my professional license and I understand and specifically consent that information contained in my records may become public as a result of said investigation and action. Respondent initialed each term of the monitoring contract and indicated that he understood the contract requirements. Despite his agreement to be monitored by PRN and to attend weekly sessions, his actual attendance and his submission to random testing was sporadic at best. For example, by July 10, 2008, Respondent had been to only one group session in the previous quarter. As a PRN participant, Respondent was assigned a color for the purpose of random urine screens. Every weekday (Monday through Friday), Respondent was expected to call a number provided by PRN to see if his color had been chosen for screening. If his color came up, Respondent had twelve hours to present himself to a designated lab to provide a urine sample. Respondent was set up to test once weekly. The paperwork for his testing was completed and he was scheduled to begin testing on Friday, February 22, 2008. PRN only received results of the test if they were positive. Negative tests were not retained. If a participant was out of town and unable to test, then the participant was required to submit evidence of his or her travels, such as a plane itinerary or ticket. During the period from March 17, 2008, through January 3, 2009, Respondent traveled extensively during the week, making him unavailable for testing. Specifically, the record reveals that Respondent traveled during this time as follows: On March 17, 2008, Respondent called and stated he was in California and would return on March 22, 2008. An airline itinerary leaving West Palm Beach and arriving in Los Angeles on March 16 and returning on March 22 was provided. On March 24, 2008, Respondent provided an airline itinerary indicating that he left West Palm Beach on Sunday, March 23, 2008, to travel to Lake Charles, Louisiana, and would return to West Palm Beach on Friday, March 28, 2008. Respondent apparently did not contact his group facilitator in advance, because on March 24, 2008, Dr. Hoeschstetter called to report that Respondent had not been in group for the last two weeks. On Monday, April 7, 2008, Respondent called and left a message that he would be in Oxnard, California, all week. On April 10, 2008, Respondent provided an airline itinerary for departure from West Palm Beach on Sunday, April 6, 2008, to Los Angeles, and return to West Palm Beach on Saturday, April 12, 2008. On Monday, April 14, 2008, Respondent provided an airline itinerary for departure from West Palm Beach to Lake Charles on Sunday, April 13, 2008, with a return trip Friday, April 25, 2008. Respondent was apparently called for a random screening on April 14, and he left a message with PRN that he would continue to call First Lab and send proof of travel. On Sunday, April 27, 2008, Respondent left a voice mail that he would be in California through May 3, 2008. The next day he supplied an airline itinerary with departure on April 27, 2008, from West Palm Beach to Los Angeles with a return trip Friday, May 2, 2009. On Sunday, May 4, 2008, Respondent left a voice mail that he would be in California until May 10. He left his voice mail with a staff member at PRN who tracks urine screening. On Monday, May 5, 2008, Respondent provided an airline itinerary with departure on May 4, 2008, for West Palm Beach to Los Angeles with return on Saturday, May 10, 2008. On Sunday, May 18, 2008, Respondent called PRN and said he would be in Lafayette, Louisiana, from May 19 through May 30, 2008. The next day, Respondent provided an airline itinerary with departure from West Palm Beach on May 18 to Lafayette, Louisiana, with return flight on Friday, May 30, 2008. On Sunday, June 1, 2008, Respondent called PRN and said he would be in Louisiana from June 1 through June 6, 2008. On June 4, 2008, he provided a travel itinerary for a departure from West Palm Beach to Lafayette on June 1, 2008. On June 8, 2008, he called and said he would be on vacation another week, from Monday, June 9, 2008, through June 15, 2008. On June 15, 2008, he called again and stated that he would be in Louisiana through Saturday, June 21, 2008. On Tuesday, June 24, 2008, Respondent called to say he was in Europe and was unable to call in to First Lab. Respondent indicated that he would return to Louisiana on Sunday, June 29, 2008. No travel itinerary was submitted at this time. On Tuesday, July 1, 2008, Respondent called and said he had returned from France and was in Louisiana, and would not return to Florida until Friday, July 18, 2009. Respondent indicated that he was selected to test and is not usually selected when he is out of town. That same day, he provided an airline itinerary that indicated he departed from Lafayette, Louisiana, and traveled to Nice on June 20-21, 2008, and returned on June 29, 2008. The quarterly monitoring report submitted by Dr. Hoechstetter on July 6, 2008, states that "Larry has been in maybe 1 group this quarter -- PRN is aware." On Sunday, July 20, 2008, Respondent left a voice mail at PRN stating that he was leaving for Louisiana that day and would be there until Saturday, July 26, 2008. On the following day, he provided an airline itinerary for departure from Lafayette on Friday, July 18, 2008, to West Palm Beach, with return trip to Lafayette on July 20, 2008. There is also a progress note in PRN's records indicating that the test scheduled for that day would be rescheduled to the next month. On Wednesday, August 13, 2008, Respondent called to say he had been selected for testing but was still in Louisiana. Progress notes for PRN indicate that they were trying to set up a site in Louisiana so he would not miss any more tests, and would reschedule the test scheduled for that day. On Wednesday, August 20, 2008, Respondent called PRN and confirmed the site to use in Louisiana. On Monday, September 1; Sunday, September 28; Monday, October 6; Monday, October 13; and Monday, October 20, 2008, Respondent called PRN to say he was still in Louisiana. In several of these calls he indicated that he would call his group facilitator, Dr. Hoechstetter. On October 23, 2008, Dr. Hoechstetter called inquiring what he should do about Respondent's absences, as he had only been to group sessions twice when he first started. On Tuesday, November 4, 2008, Respondent provided an itinerary with departure from Lafayette, Louisiana, on Thursday, October 30, 2008, to Chicago, with a return trip on Sunday, November 2, 2008. Respondent was scheduled to test on November 18, 2008, and did not do so. PRN staff called him on December 16, 2008, and he indicated that he had just gotten out of the hospital at the time of the test. No prior notification of the hospitalization had been provided. On Monday, December 29, 2008, Respondent left a voice mail for PRN staff that he was in California that week, looking for a job. On January 5, 2009, Respondent provided an airline ticket departing from Lafayette, Louisiana, on December 28, 2008, to Fresno, California, with a return flight on Saturday, January 3, 2009. On January 5, 2009, he called and left a voice mail that he was still in Louisiana but had no job. Respondent conceded in his deposition that he missed monitoring sessions and urine drug screens when he was out of town. Debra Troupe, Respondent's case manager, testified that from March 17, 2008, through January 3, 2009, Respondent was only in town for approximately two weeks. From some time in May 2008, through some time in November 2008, Respondent worked as Director of Radiology at Southwest Medical Center in Lafayette, Louisiana. Although working in Louisiana is consistent with the proof of travel he provided, he never notified his case manager at PRN that he was working in Louisiana, and several of the voice mails he left at PRN indicated that he did not have a job during this time. On August 8, 2008, Respondent submitted a urine sample that returned results including a low creatinine level of 16.8 mg/dL. The PRN cut-off for creatinine is 20 mg/dL, and anything under that level is considered to be diluted. The level of creatinine is significant because a low level can indicate that someone is trying to flush the evidence of a prohibited substance, such as alcohol, out of his or her system. While Respondent’s creatinine level for this test was considered low, the result could be because of overhydration, or simply drinking too much water, as opposed to purposefully diluting. Debra Troupe, Respondent's compliance manager, reviewed the results and noted them, but took no action based upon this single result. On November 25, 2008, Respondent submitted to a random urine test. The lab report, which was completed December 5, 2008, indicated a positive result for Phenobarbital. The confirmation cutoff for Phenobarbital is 150 ng/mL. Respondent's results indicated 884 ng/mL. As noted in paragraph 32(r), Respondent was supposed to, but did not test on November 18, 2008, the week before the positive Phenobarbital test. PRN staff called Respondent on December 16, 2008, at which time he stated that he had just gotten out of the hospital at the time of the missed test. On December 16, 2008, PRN received a letter from a David Dawes, M.D., of the Neuropsychiatric Clinic of Acadiana, LLC., located in Lafayette, Louisiana. Dr. Dawes' letter stated in its entirety: "To Whom it May Concern: Lawrence Mishlove was hospitalized at Lafayette General Medical Center from 11-13-08 until 11-17-08. On 11-13-08 he received a one-time dose of Phenobarbital 260mgIV." No diagnosis or explanation of why the Phenobarbital was given was provided. Respondent later claimed that the drug was administered for an extreme panic attack occurring in California (as opposed to Louisiana). However, persuasive evidence was presented that Phenobarbital is not usually prescribed for treatment of panic attacks. It is usually used for seizure disorders and for alcohol detoxification to prevent seizures and DTs, and the amount given is consistent with the dosage given to a person experiencing alcohol withdrawal. It is also significant, and a violation of Respondent's PRN contract, that no notification of his hospitalization or the administration of Phenobarbital was provided by Respondent until the positive result was reported from his drug test. On February 5, 2009, Respondent called saying he was scheduled to test but was now back in Panama City, Florida, and had called First Lab to see where he was to submit to testing. This call was the first time that Respondent had notified PRN that he was back in Florida. On Tuesday, February 17, 2009, Respondent called PRN to say he was still in Panama City and not working. On April 1, 2009, Dr. Hoechstetter filed a PRN Mental Health Compliance Update, indicating that Respondent was calling in weekly as opposed to attending group sessions. His Update also indicated that Respondent had relocated to California. A review of PRN's records in Petitioner's Exhibit A did not reveal any direct notification from Respondent that he had relocated to California. On April 2, 2009, Respondent provided a hotel bill from Arizona as proof of travel. The bill had a note on it requesting that PRN reschedule testing because Respondent was traveling to California. On April 3, 2009, Respondent reported that he found a position at Kaweah Delta Hospital ("Kaweah") in Visalia, California, and would start working April 13, 2009, as a radiologist. He also reported that he would be in Lafayette, Louisiana, the following week, and that the head of the well- being committee at Kaweah was Ron Marcorn. Respondent also reported that he missed calling in for testing by "one minute," due to the time difference. At this point, he had missed calling in on three different occasions. In April 2009, PRN changed third party administrators for its drug testing program. While the lab used by both providers was Labcorp, the third party administrator changed to Affinity. Respondent was told he must immediately contact Affinity to enroll for the urine drug screening system. Respondent requested a second information packet, claiming that he lost the first one. A second packet was mailed to him April 30, 2009, but Respondent did not enroll. After May 2009, PRN could no longer order tests for Respondent because, although notified, he had not enrolled with Affinity as requested. On May 5, 2009, PRN received a letter from Thomas Gray, M.D., the Chief of Staff for Kaweah. The letter stated: To Whom It May Concern: Dr. Mishlove was appointed to the Medical Staff of this facility as of March 19, 2009 with radiology privileges. On May 5, 2009, the Medical Staff learned that Dr. Mishlove's practice group terminated his contract because he had missed assigned work shifts. It was also reported that his missing work was related to suspected alcohol abuse. Due to the termination of his contract, his Medical Staff status was terminated effective May 5, 2009. Respondent admitted in deposition that he worked only two weeks before being terminated by Kaweah. On May 12, 2009, PRN staff called Respondent, but was unable to leave a message because his voice mail was full. On May 13, 2009, Dr. Pomm sent Respondent a certified letter notifying him that his case was being prepared for referral to the Department of Health because of his unwillingness to comply with the requirements and recommendations of the PRN program. The letter directed him to schedule an evaluation by June 1, 2009, in order to avoid referral. On June 8, 2009, Respondent reported for an evaluation by Dr. Michael Sucher, M.D., of California Physicians Health Program. Dr. Sucher asked that Respondent submit to urine and hair tests within a week of the evaluation. The urine sample was not submitted until June 22, 2009, and the hair sample was not supplied until September 28, 2009, well after Dr. Sucher submitted his report on August 31, 2009. The delay of a urine screen allows time to dilute the evidence of a drug from a person's system. Alcohol can remain in urine for approximately six hours, and alcohol metabolites can be detected for three to five days. Respondent delayed submitting a urine sample for approximately two weeks. Testing from a hair sample can detect a substance for approximately three months and is most effective for detecting consistent use of a substance. Respondent delayed submitting a hair sample for three and a half months. Dr. Sucher evaluated Respondent for fitness and safety to practice medicine, and reviewed the materials provided to him by PRN. He provided an extensive report of his evaluation and Respondent's statements that were in conflict with documentation previously reviewed. His report stated in part: I am faced with much the same situation as Dr. Jerry in 2007. The history provided directly by Dr. Mishlove does not appear to indicate an alcohol use disorder or other substance use disorder. However the information contained in the additional documentation that was provided by the Florida PRN Program and from review of the evaluation of Dr. Jerry reveals a very different discussion about consumption of alcohol, drinking and the series of events that have occurred in Dr. Mishlove's professional life that brought him to the attention of the PRN program. Additionally I am quite concerned that Dr. Mishlove failed to mention his psychiatric hospitalization that is well described and that he did discuss with Dr. Jerry. Of greater concern is the fact that Dr. Mishlove delayed significantly in providing a urine drug specimen and has not provided a hair drug test as requested as part of this evaluation process. Therefore, I have significant concern that Dr. Mishlove does in fact have a significant alcohol or other substance abuse or dependence issue which has yet to be properly diagnosed and treated. I would consider this to be an incomplete evaluation and my recommendation would be that Dr. Mishlove be required to enter into and successfully complete a comprehensive residential evaluation at a Florida PRN and Louisiana Physician Health Foundation approved evaluation center. The purpose of this would be to further clarify the history, obtain more comprehensive physical and psychological testing as well as laboratory testing and garnering additional information from collateral sources in order to come up with an accurate diagnosis or diagnoses and recommended treatment as well as a more definitive statement regarding his fitness for duty and safety to practice medicine. On September 14, 2009, Dr. Pomm notified Susan Love at the Department that Respondent's contract with PRN had been voided because of his failure to comply with the requirements of his contract. The following day, Dr. Pomm wrote to Dr. Mishlove informing him that his monitoring contract was terminated and his case referred to the Department for noncompliance. On September 23, 2009, the State of Louisiana State Board of Medical Examiners suspended his license to practice medicine. On September 28, 2009, Respondent submitted the hair sample for testing that Dr. Sucher had requested of him in June. The report dated October 1, 2009, showed positive results for cocaine, benzoylecgonine, norcocaine, and cocaethylene. The positive test for cocaethylene indicates use of both cocaine and alcohol. The confirmation level for a positive test for benzoylecgonine is 50 pg/mg; Respondent's result was 59 pg/mg. The confirmation level for a positive test for Norcocaine is 50 pg/mg; Respondent's result was 116 pg/mg. The confirmation level for a positive test for cocaine is 100 pg/mg; Respondent's result was 402 pg/mg. Finally, the confirmation level for a positive test for cocaethylene is 50 pg/mg; Respondent's result was 95 pg/mg. Respondent denied ever using cocaine and claimed that the results were contaminated. He did not, however, request a retest of the sample submitted and did not explain how he thought the results were contaminated. On October 14, 2009, Dr. Sucher e-mailed Debbie Troupe, stating that Respondent had missed an appointment with him, claiming he was taking care of his ill grandmother. He reiterated the results of the hair test. Because of these results, Dr. Sucher indicated that he would amend his report to reaffirm that Respondent needs a comprehensive evaluation but to also require a polygraph examination as part of the evaluation. On October 20, 2009, Respondent was arrested for DUI in California. On October 22, 2009, a mere two days later, Respondent was arrested a second time for DUI in California. On November 20, 2009, the Department issued an Emergency Suspension Order suspending his license to practice medicine in Florida. On November 24, 2009, California also suspended his California license. On March 23, 2010, Respondent was arrested for battery on a police officer and resisting arrest. In April 2010, Respondent pleaded nolo contendere to reckless driving involving alcohol with respect to one of the DUIs from October 2009. Respondent claims that the other charge was dropped, and the Department presented no evidence to refute his claim. In May 2010, Respondent was arrested for DUI, this time in Fort Walton Beach, Florida. He pleaded nolo contendere to the charge on August 11, 2010. On October 31, 2010, Respondent was admitted to Bradford Health Services ("Bradford") for a healthcare professional assessment, upon referral by the Louisiana Medical Board. Respondent signed a release that permitted Bradford Health Services to release and/or receive information from Florida PRN. He was discharged from the facility five days later to allow time for receipt of the voluminous records the assessment team reviewed in order to complete the evaluation. Bradford completed its evaluation and issued its report on December 31, 2010, at which time the results were shared with Respondent by phone, as he indicated he could not afford to return to the facility. The report by Bradford is extensive. He was seen by a multi-disciplinary team, headed by Michael Wilkerson, M.D., the Medical Director of the Extended Care Program. The results of the evaluation are consistent with, and corroborative of, the testimony of Elen Gajo, M.D., who evaluated Respondent separately. M. Elen Gajo, M.D. is a medical doctor who has been licensed in the State of Florida since 1991. She received her medical degree at the University of the Philippines, and completed her residency in psychiatry at the Massachusetts Mental Health Center through Harvard Medical School. She is board- certified by the American Board of Psychiatry and Neurology, and is in private practice in Fort Walton Beach, Florida. Dr. Gajo was accepted as an expert in psychiatry.5/ In preparation for Respondent's evaluation, Dr. Gajo reviewed records provided by PRN, including group facility records; evaluations from Dr. Jerry, Dr. Sucher, and the Bradford evaluation; law enforcement reports and materials in the Department file. The materials reviewed by Dr. Gajo are the type of materials commonly reviewed by physicians to evaluate patients in order to determine whether a practitioner is safe to practice his or her profession. Dr. Gajo met with Respondent for approximately 90 minutes on October 31, 2011. The interview was shorter than she would have preferred because she did not feel that Dr. Mishlove was forthcoming with any information that would be helpful. For example, Respondent denied any psychiatric history, either inpatient or outpatient, despite references to them in previous evaluations. When asked about the Bradford evaluation and the treatment by Dr. Dawes, he claimed he did not remember being evaluated at Bradford, despite the fact that he spent five days there a year before. When she presented the evaluation to him, he claimed he could not discuss it because he was in litigation with Bradford. In addition, Respondent claimed he had two DUI arrests when there were four. He would not provide significant information regarding employment issues or prior evaluations, and would only say that he was in litigation with the various entities. Despite his denials, Dr. Gajo found that the descriptions of the four incidents by the various law enforcement officers in different locations, whether or not Respondent was driving while intoxicated, were "eerily stating and reciting the same physical symptomatology." These symptoms exhibited a level of cognitive impairment, such as being passed out in the car in a traffic jam at Sunset Boulevard in Los Angeles, having a staggering gait, redness of the eyes, and slurred speech. Responses about these incidents resulted in answers such as "I fell asleep," "I was hungry," and "it didn't happen." Respondent provided little information during the evaluation to explain the documentation and there were no discussions about chemical abuse and dependency, because Respondent believes that there is not a problem. Given the number of issues that Respondent was unwilling to discuss, Dr. Gajo testified that two possibilities arise: that the person is in denial of what actually happened; or the person is simply unwilling to discuss the actual truth of what occurred. Under these circumstances, the credibility of the information that is received is suspect. Dr. Gajo testified that DSM-IV provides criteria upon which to base a diagnosis of alcohol abuse. These include failure to fulfill obligations with work, school and/or family; conduct that places the person in situations that are physically dangerous, such as driving while impaired; recurrent legal problems; and continued use despite persistent or recurrent problems interpersonally or in the community. She felt all four of these factors applied to Respondent. Dr. Gajo also testified credibly that a positive breathalyzer test or positive urine drug screen is not required for a diagnosis of alcohol abuse or dependence, but is one factor to consider. In Dr. Gajo's opinion, Respondent has Axis I diagnoses of alcohol abuse; rule out alcohol dependence; and rule out cocaine abuse and/or abuse of other substances. Under Axis II, she opined that he had a diagnosis of rule out narcissistic and antisocial personality traits. Dr. Gajo also opined that Dr. Mishlove is currently unable to practice medicine with reasonable skill and safety to patients. The fact that as a radiologist, Dr. Mishlove does not interact with patients is not dispositive. Impairment due to alcohol abuse affects a person's cognitive function and ability to render critical opinions. Dr. Gajo's opinion is credited. Respondent proffered Respondent's Exhibit 8, which comprises a series of reports from hair and urine tests that he had performed in Panama City over the last year. These reports were not admitted into evidence because they were not properly authenticated. However, even assuming the admissibility of these reports, the results obtained are not probative. As Dr. Mishlove admitted in his deposition, he arranged for the testing and it was not conducted on a random basis. Inasmuch as alcohol and cocaine are only detectable in both hair and urine for a limited period of time, tests conducted at a time selected by the person being tested do not provide any helpful information in determining whether Respondent is able to practice with reasonable skill and safety to patients.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding Respondent violated section 456.072(1)(hh) and section 458.331(1)(s), Florida Statutes, and suspending his license to practice medicine until such time as he can demonstrate the ability to practice with reasonable skill and safety to patients. In the event that he is reinstated, it is further recommended that he be placed on probation for a period of five years. DONE AND ENTERED this 30th day of March, 2012, in Tallahassee, Leon County, Florida. S 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 30th day of March, 2012.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995.
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d),(g), or (j), Florida Statutes (2012), or Florida Administrative Code Rule 6A-10.081(5)(a). If any violations are found, it must be determined what penalty should be imposed for the violation(s).
Findings Of Fact Respondent holds State of Florida Educator?s Certificate number 944511, valid through June 30, 2014, authorizing her to provide instruction in both elementary education and exceptional student education. Respondent is also licensed as a nurse by the State of Florida, although her license number was not introduced into evidence. Respondent has resided in Pensacola, Florida, for approximately six years. Respondent has never taught school full-time. Between December 2011 and August 2013, Respondent was a substitute teacher at the United Cerebral Palsy “Capstone Academy” in Pensacola, a pre-kindergarten program where she worked with special needs children. During that same time frame, Respondent also substituted at various schools in the Escambia County School District. From approximately March 2013 through the present day, Respondent was also employed PRN (i.e., “as needed”) as a nurse with Consulate Health Care. In January 2012, Respondent began working as a substitute teacher at Lincoln Park Elementary School (Lincoln Park) in the Escambia County School District. In February 2012, Respondent was offered a position as a Long-Term Substitute (LTS) teacher with Lincoln Park.1/ On March 5, 2012, while working at Lincoln Park, Respondent was notified that she must submit to a pre-employment drug screening.2/ Respondent testified that she went to the lab for the drug screening the same day she was informed of the requirement while at work. Respondent?s urine specimen was collected at 3:15 p.m. on March 5, 2012, at LabCorp Patient Service Center, 3437 North 12th Avenue, Pensacola. Respondent?s urine tested positive for amphetamines. On March 13, 2012, Lincoln Park Principal Christine Nixon notified Petitioner that her urine test was positive, that she needed to report to the Escambia School District Office, and that Petitioner would not be allowed to return to Lincoln Park until Petitioner heard further from Human Resources (HR). Respondent reported to the District HR office at approximately 2:55 p.m. on March 13, 2012. At the HR reception counter, Respondent requested to speak with someone regarding her drug test results. Dr. Kylie Henderson, Confidential Human Resources Administrative Specialist, invited Respondent into her office, and informed her that both Dr. Keith Leonard, Director of Human Resources, and Mr. Kevin Windham, Director of Risk Management, were unavailable. Dr. Henderson offered to take Respondent?s information and leave a message for Dr. Leonard to contact Respondent. Respondent?s meeting with Dr. Henderson was brief, but Dr. Henderson clarified for Respondent that she could not return to Lincoln Park until she received clearance from either HR or Risk Management. Respondent did not receive a call from Dr. Leonard or anyone else from either HR or Risk Management on either March 13 or 14, 2012. Respondent was anxious to speak with someone regarding her drug screen results. Respondent contacted HR again on March 14, 2012, and spoke briefly with Dr. Scott, Assistant Superintendent for HR Services. Dr. Scott referred Respondent to Mr. Windham. Respondent was transferred to Mr. Windham?s voicemail, where she left a message. Respondent did not receive a return call from Mr. Windham. On March 15, 2012, Respondent sent an email to Mr. Malcolm Thomas, Superintendent of Escambia County Schools, complaining that his staff was not returning her calls and requesting a call from someone with his office. On March 16, 2012, Dr. Scott answered Respondent?s email on behalf of Mr. Thomas. He explained that unless Respondent produced a prescription for the medication for which she tested positive, or successfully contested the urine screen test, the School District would have to treat it as a positive result and withdraw the employment offer.3/ By letter dated March 15, 2012, from Bill Threadgill, Coordinator of Human Resources Management, Respondent was notified that based upon the results of her pre-employment drug screen she was not eligible for employment with Escambia County Schools.4/ Education Practices Commission On or about April 13, 2012, the Escambia County School District reported Respondent to the Department of Education (DOE), Professional Practices Services, which prompted the instant action against Respondent?s Educator Certificate. Respondent responded to the allegations of misconduct brought by Professional Practices Services in a letter dated April 21, 2013, to Ms. Lambeth, Chief of Professional Practices Services for DOE?s Bureau of Professional Practice. On May 15, 2013, Respondent filed an Election of Rights requesting a formal hearing. Meeting with Dr. Henderson The dispute in this case centers on statements Respondent made during her meeting with Dr. Henderson on March 13, 2012, at the Escambia District HR Office. Dr. Henderson took notes during the brief meeting with Respondent in order to pass on to Dr. Leonard an accurate account of Respondent?s request for a meeting with him. On a message pad, Dr. Henderson noted that Respondent had come to see Dr. Leonard at the direction of Lincoln Park Principal Nixon following the results of her positive drug screen. The message asks Dr. Leonard to call Respondent to give her further direction. After Respondent left her office, Dr. Henderson made a written account of the meeting. Dr. Henderson felt documentation was necessary as Respondent?s behavior was indicative of someone under the influence of a substance. In her written statement, which was corroborated by her testimony at final hearing, Dr. Henderson described Respondent as “extremely jittery and agitated” and noted that Respondent continually shifted in her seat, spoke very rapidly, stuttered and stammered, and repeatedly picked up and replaced her purse on the floor beside her. Dr. Henderson recounted that Respondent explained she knew what drug she had tested positive for, and that she took her son?s Adderall “every now and then” for weight loss, “to keep from eating.” At final hearing, Respondent admitted telling Dr. Henderson that she knew the identity of the drug for which she tested positive. However, Respondent denied that she identified the drug as Adderall or that she took the drug intentionally. Respondent further takes issue with Dr. Henderson?s account of her behavior, denying that she was jittery or agitated, that she spoke rapidly, shifted in her seat, or repeatedly moved her purse. Credibility Respondent?s testimony that she did not identify the drug to Dr. Henderson is undermined in several ways. First, in Respondent?s letter to Ms. Lambeth, Respondent stated that she had admitted “to the District” that she took one of her son?s Adderall. At hearing, Respondent authenticated the letter and the signature as her own. In her Election of Rights, Respondent stated: “The Petitioner states on pg.2(5) that I admitted to the district?s official that I told her that I took the Adderall. I told her that I took it by mistake on that day, and I reiterated it on the 21st of April when I addressed the office of professional practices services.” Respondent?s own testimony at final hearing conflicted on this point. On cross-examination, after repeatedly testifying that she did not recall telling Dr. Henderson the name of the medication she had taken, she testified as follows: Q. That?s what you said under oath in your direct testimony sitting in that chair. You didn?t say what the drug was. You said, took one of my son?s medications, right? A. Yes, I said that. Q. You didn?t identify to her, accidentally to my son?s Adderall? A. Yes, I did. I did identify that to her.[5/] Further, when Respondent was deposed on September 4, 2013, she denied having taken Adderall at all during the time she worked at Lincoln Park.6/ Dr. Henderson?s testimony that Respondent identified Adderall as the drug for which she tested positive during her meeting with Respondent on March 13, 2012, is accepted as credible and reliable. Respondent?s position, at final hearing, is that she took her son?s Adderall by mistake and that it was a one-time occurrence. She flatly denied that she has ever taken Adderall to curb her appetite or assist in weight loss. Respondent represented on many occasions that she took the Adderall by mistake: in her March 15, 2012, email to Superintendent Thomas when expressing her frustration with lack of response from his staff; in her March 16, 2012, email to Mr. Windham explaining that a split screen test would have the same results as her first urine screening; in her letter to Ms. Lambeth, dated April 21, 2012, in response to the Commission?s allegations of misconduct; in her Election of Rights dated May 13, 2013; and throughout her testimony at final hearing. Incredulously, at final hearing Respondent made no effort to explain how she took the Adderall by mistake. Respondent was clearly incensed by the lack of communication from HR following her meeting with Dr. Henderson. She repeatedly stated that she just wanted a chance to explain herself and that she thought she would have a chance to “clear up” the mistake. However, when presented with an evidentiary hearing of her choosing, and the opportunity to present the facts as she wanted them found, she made no effort to explain the mistake. She did not offer any facts about where the Adderall was kept in relation to any medication she might have been taking, the time of day to be administered, or any other details to explain the “mistaken” ingestion of Adderall. In fact, Respondent testified that her son, who did live with her in February and March 2012, was not even on any prescription medications at the time. Specifically, she testified, “My son is not even on Adderall. He was on that a long time. And I was keeping them in case I thought he had to go back on the medication.”7/ Respondent?s testimony that she was simply keeping the medication for her son does not support her theory that she took the Adderall by mistake. More importantly, Dr. Henderson testified credibly that Respondent did not mention to her during the meeting with Respondent on March 13, 2012, anything about taking Adderall by mistake. Dr. Henderson?s testimony and written statement were clear that Respondent told her she took the Adderall intentionally, and does so occasionally to lose weight and control her appetite. Dr. Henderson?s testimony is accepted as credible and reliable. Respondent accuses Dr. Henderson of fabricating her written account of her meeting with Respondent on March 13, 2012. No evidence was introduced to support that accusation. Dr. Henderson had never met, seen, or spoken to Respondent prior to the meeting at HR on March 13, 2012. Dr. Henderson had no information from any source regarding Respondent prior to March 13, 2012, when Respondent presented at HR to discuss her test results with someone. Respondent offered no explanation for why Dr. Henderson would fabricate her written account of their meeting. In short, there was no evidence of a motive for Dr. Henderson to make up the facts in her written statement. Respondent argues that her theory that Dr. Henderson fabricated the account is supported by the fact that Dr. Henderson?s written message to Dr. Leonard is so short and includes none of the details about her behavior or the name of the medication taken. Respondent alleges that had Respondent admitted to abusing prescription medications and behaved erratically in her presence, Dr. Henderson would have included those details in the message to Dr. Leonard. Respondent?s theory is not supported by any evidence. The message to Dr. Leonard was taken on a form message pad which includes space for identification of the caller or visitor, their phone number, and the reason for their call, followed by a series of boxes from which the message-taker may choose, such as “telephoned,” “returned your call,” “came to see you,” and “will call again.” The form includes only the briefest of lines for a message to the recipient. In the limited space provided for a message, Dr. Henderson wrote “Urine test 2 weeks ago came back positive. She was contacted by the lab and her principal sent her to HR. Can?t return to LPES until cleared. Needs to know what to do.” The message does not include details about Respondent?s behavior or statements concerning the drug for which she tested positive. Contrary to Respondent?s argument, the undersigned does not infer from the facts that Dr. Henderson fabricated the more detailed statements concerning Respondent made shortly after the meeting concluded. Ultimate Facts Petitioner proved by clear and convincing evidence that on March 5, 2012, Respondent tested positive for amphetamines, a controlled substance for which she did not have a prescription. In the heat of the moment when faced with her positive test results, Respondent admitted to Dr. Henderson that the medication belonged to her son, that she took the medication intentionally, and that she does so occasionally. Subsequent to her admission, Respondent misrepresented the facts to the School District, the State Education Practices Commission investigator, and while under oath in deposition and in this forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 102.795(1)(g) and (j), as well as rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent?s certificate for a period of 12 months; and upon employment in any public or private position requiring an educator?s certificate, place her on probation for a period of two years on such terms as the Commission deems advisable. DONE AND ENTERED this 2nd day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2013.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation. Respondent was aware that DDMC engaged in advertisements to solicit patients. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available. In the event the Doppler showed no problem, Respondent would not recommend additional testing. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO CASE NO. 90-6331 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted. Paragraphs 8 and 9 are accepted. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted. Paragraph 11 is rejected as contrary to the weight of the evidence. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence. Paragraph 18 is accepted. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 and 23 are accepted. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence. Paragraph 31 is accepted. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 5 are accepted. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges. Paragraphs 8 through 10 are accepted. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted. Paragraphs 12 through 15 are accepted. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence. COPIES TO: Richard A. Grumberg Sr. Medical Atty. DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Grover C. Freeman 4600 West Cypress, Ste. 500 Tampa, FL 33607 Dorothy Faircloth Executive Director DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
