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
Findings Of Fact At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary. DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.
Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent is guilty of violating Petitioner's rule requiring that all employees Respondent's job classification submit to random drug testing.
Findings Of Fact At all material times, Petitioner employed Respondent as a school bus driver. On January 12, 1995, Petitioner's representatives conducted a Drug Free Workplace Employee Training Session, which was attended by Respondent. This training session was one of many such sessions at which Petitioner's representatives explained to each covered employee the provisions of Petitioner's drug policies. These provisions include a provision that a refusal to take a random drug test is tantamount to failing a drug test and a basis for termination. The Employee Information on Drug and Alcohol Testing, which is the handbook distributed to Petitioner's school bus drivers, including Respondent, informs each driver that Petitioner will annually administer random drug tests to half of the driver positions and that, if selected for a random drug test, the driver must report immediately to the testing laboratory. The employee handbook informs drivers that a refusal to submit to a random drug test is prohibited. The employee handbook explains that engaging "in conduct that clearly obstructs the testing process" constitutes a refusal to submit to a random drug test. The employee handbook notes that conduct obstructing the testing process includes a "failure to immediately report to the testing facility after notification." Finally, the employee handbook warns that Petitioner may terminate drivers who have engaged in prohibited behavior. Article 32, Section 2, of the 1998-2000 Agreement Between the School Board of Pinellas County, Florida, and School Employees Union, Local 1221, Firemen & Oilers, An Affiliate of Service Employees International Union, AFL/CIO, CLC, contains the same requirements as those set forth above in the employee handbook. Section 3 warns that a violation of any of these requirements by a covered employee may result in termination. On March 21, 2000, Petitioner's Transportation Clerk Specialist II summoned Respondent to the transportation offices. When Respondent reported to her office, the clerk informed Respondent that she had selected him for random drug testing. Obviously, element of surprise is an important feature of random drug testing. Equally important to random drug testing is the control of the subject between the point at which he is informed that he is to take a random drug test and the production of the sample or samples to be tested; given enough time between the notification and the test, a subject might be able to ingest substances that could interfere with the ability of the test to detect drugs. Also important to random drug testing is the confirmation that the person presenting himself at the testing laboratory is the person who has been randomly selected for testing. Each of these elements plays a role in this case. Petitioner's clerk checked Respondent's identification, including his driver's license, and explained to him the procedures that he was to follow. Respondent had undergone random drug testing in the past while employed by Petitioner. In brief, Petitioner's clerk told Respondent that he had to report immediately to the testing laboratory, which is a short drive from the office. The clerk instructed Respondent to sign in upon arrival at the laboratory and, when called, to present all of the paperwork that she was giving him, as well as his driver's license. Petitioner's clerk warned him that he could not leave the laboratory premises until he had completed the drug test. Respondent reported immediately to the laboratory and signed in, as instructed. When called, Respondent presented his paperwork to the laboratory clerk, but he did not produce his driver's license, claiming that he did not have it with him. Respondent is not the first employee to appear at the laboratory without suitable identification. Petitioner's procedure is to maintain a photocopy of each employee's driver's license and fax the photocopy to the laboratory when employees report to the laboratory without identification. If the laboratory clerk cannot positively confirm the identification of the employee from the photocopied identification, then the laboratory employee detains the employee while Petitioner sends the employee's supervisor to the nearby laboratory to confirm the identity of the employee. Once done, the drug test proceeds. Pursuant to this procedure, the laboratory clerk telephoned Petitioner's clerk and informed her that Respondent had failed to produce his driver's license. The testimony of the laboratory clerk and Petitioner's clerk diverges at this point; each claims that the other clerk spoke to Respondent. However, the laboratory clerk testifies that she summarized the instructions given Respondent over the telephone by Petitioner's clerk. Just before Respondent left the reception room to search the bus for his driver's license, the laboratory clerk told him that he could go to the bus to look for his driver's license, but he was to return to the reception room. In any event, the clerks agree that Respondent received permission to return, unescorted, to his bus to search for his driver's license--a deviation from established procedure that prohibits the employee from leaving the laboratory once he has reported for a random drug test. The testimony of the clerks establishes that Respondent was permitted to return, unescorted, to his bus to search for his driver's license. The testimony of the laboratory clerk establishes that she clearly directed Respondent to look for his driver's license in the bus and return to the reception room. The discrepancy in the testimony of the clerks as to who conveyed the substance of the additional instructions to Respondent is, ultimately, immaterial; the possibility that one of the clerks could have given Respondent permission to leave the laboratory parking lot to search for his driver's license, or the possibility that Respondent could have misunderstood the clerk to have given him this permission, is negated by Respondent's later conversation with the Assistant Director of Transportation, as set forth below. Following his conversation with the laboratory clerk and possibly Petitioner's clerk, Respondent left the laboratory and went to his bus, ostensibly to search for his driver's license. Respondent did not return to the laboratory, but, instead, drove his bus back to the bus compound. Evidently, Respondent went home after returning his bus. One to one and one-half hours after leaving the laboratory, Respondent telephoned Petitioner's clerk and informed her that he had not found his license and had instead become sick, so he had gone home to eat something and take his medicine. Respondent told her that he had retraced his steps, but had not found his driver's license. At this point, Petitioner's clerk transferred the call to her supervisor, who is the Assistant Director of Transportation. The Assistant Director of Transportation started their conversation by stating her understanding that Petitioner had sent Respondent for a random drug test, but he had not completed it. Respondent answered that he could not find his driver's license and believed that Petitioner's clerk may have failed to return it to him earlier in the morning when she had examined it. The Assistant Director of Transportation replied that the clerk had looked for the driver's license and failed to find it, so that they were sure that she had not failed to return it to Respondent. Pausing for about five seconds, Respondent answered, "I wasn't feeling well. I had to go home and take my medication." The Assistant Director of Transportation replied that she would treat this as a refusal to submit to a drug test. They spoke for a few moments more, confirming that Respondent was calling from his home and that the bus was at the compound. The Assistant Director then directed Respondent not to report to work and told him that a personnel employee would be contacting him. Respondent concluded the conversation by repeating that he had not been feeling well. At no point in the conversation with Petitioner's clerk or the Assistant Director of Transportation did Respondent ever claim that he left the laboratory parking lot with the permission of Petitioner's clerk or the laboratory clerk or that he left the laboratory parking lot thinking that he had the permission of one of the clerks. It appears that he had ample opportunity in his conversation with the Assistant Director of Transportation to make this claim. Instead, Respondent merely repeated his claim that he became ill. Thus, it is very likely that Respondent clearly understood the final directions of the laboratory clerk: Respondent was to search his bus for the driver's license and then return to the laboratory reception room. It is thus not difficult to determine that it is considerably more likely than not that Respondent left the laboratory parking lot, knowing that he did not have the permission of either clerk to do so. Petitioner's witnesses testified candidly. The Assistant Director of Transportation did not appear overbearing or intimidating, so as to deter Respondent from presenting all of the facts in his defense, such as a claim that he had left the parking lot with the accurate or mistaken impression that he could do so in an effort to find his driver's license. It is only a little more difficult to determine that Respondent's claim of illness as the cause for his departure from the parking lot is more likely than not to be a fabrication. The coincidence of a random drug test, misplaced driver's license, and sudden onset of debilitating illness is unlikely. Presumably, the illness would have arisen after Respondent had spoken to the laboratory clerk, or else Respondent would have mentioned something to her when he was in the reception room. Even if Respondent had been suddenly struck by some illness while on his way to search the bus or while searching the bus, he would have been able to return to the reception room and tell the laboratory clerk either that he had fallen ill and had to go home immediately or that he had fallen ill and needed to produce a urine sample immediately, with or without further identification. Obviously, the illness had not been so debilitating to have prevented Respondent from returning to the reception room and telling the laboratory clerk of the illness; after all, Respondent was able to drive the bus to the bus compound and then drive himself home. Based on all of the facts, Petitioner properly treated Respondent's acts and omissions as the equivalent of refusing to submit to a random drug test and, as authorized by the collective bargaining agreement, properly terminated Respondent's employment as a school bus driver.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2000. COPIES FURNISHED: Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 Jacqueline M. Spoto, Staff Attorney Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Glenn Cromartie 1639 26th Street, South St. Petersburg, Florida 33712
The Issue The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified law enforcement officer, issued law enforcement certificate 233642. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Quest is an immunoassay test used to screen all samples. Any sample that is positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine. Respondent was terminated from his position as a law enforcement officer by the JSO. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of 60 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 3rd day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2011.
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2018.
Findings Of Fact Richard Templeton is a registered nurse holding license #RN 137921-2 issued by the State Board through the Department of Professional Regulation. At all times pertinent to this case, Respondent was employed at Morton Plant Hospital, Clearwater, Florida. On the night of 19/20 July, 1983 Respondent was charge nurse on ward Bernard 5 at Morton Plant Hospital, and was responsible for the administering of medications to include controlled substances, to David Johnson. There were approximately 45 patients on the ward, and Respondent was responsible for at least one third of them. The narcotic sign out sheets reflect that Respondent signed out for 100 mg Demerol at 1:15 A.M. & 4:15 A.M. for David Johnson on said night. Johnson's nursing notes in his medical chart for 7:00 A.M. reflect that Johnson was given 2 pain medicines at 1:15 & 4:15. Johnson's charts reflect he got sleeping medicines at 11:50 P.M. and was sleeping at 2:00 A.M. & 6:00 A.M. 2/ Johnson testified as to the medicines he received while a patient at Morton Plant Hospital in July 1983. Johnson stated he did not receive any injections prior to his pre op medicines which were administered at approximately 1-2:00 P.M. on 20 July, 1983. Johnson's testimony is very concrete and reflects a good recollection of events. His testimony is borne out by the records and is credible. On April 2, 1984 the Respondent entered a plea of nolo contendere to criminal charges that he had violated Chapter 893.13(3)(a)1, Florida Statutes. See Petitioner's Exhibit 2. The court found the Respondent guilty of said charges. Registered nurses have a legal obligation to administer or waste properly controlled substances which they sign out, and to chart the administration of drugs they administer. Mepheridine is the generic name for Demerol, and is a controlled substance pursuant to Chapter 893, Florida Statutes.
Recommendation Having found the Respondent guilty of violating Sections 464.018(1)(c), Florida Statutes, it is recommended the Respondent's license be revoked; however, it is recommended that the revocation be suspended and the Respondent's license be suspended for one year and placed upon probation for two years thereafter during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. Having found the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes, it is recommended the Respondent's license be suspended for three years; however, it is recommended that the final two years of the suspension be abated and the Respondent be placed upon probation the final two years during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. DONE and ORDERED this 28th day of June, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
The Issue The issue for consideration in this case is whether the School Board has cause to discharge Respondent, Arlene Murray, from her duties as a bus driver with the Board because of a positive result for cocaine obtained in a drug screening.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Pinellas County School Board, was the agency in Pinellas County responsible for the provision of public education and educational support services in the county. Respondent, Arlene Murray, was employed by the Petitioner as a school bus driver. The position of school bus driver is a sensitive position and subject to the additional requirements pertinent to employment in such a position. One of these requirements is to undergo random drug screening from time to time. There is a decided safety purpose inherent in this requirement. By letter issued in October, 1994, the Board notified all its school bus drivers, including the Respondent, that, consistent with federal law, all employees who were required to hold a commercial driver's license and who perform sensitive functions for the Board, would be subject to drug urinalysis testing and/or breath alcohol testing. Respondent operated a school bus which transported more than 15 persons and was, therefore, subject to this requirement. Sometime thereafter, in December, 1994, the Board adopted Section 6Gx52-5.27, "Drug-free and Alcohol-free Workplace", as a formal Board policy. One purpose of this policy was to comply with the federal requirement. Consistent with this action, the Board contracted with FirstLab, a medical testing organization, to conduct the drug screenings, and FirstLab contracted with Corning-Metpath Clinical Laboratories, (Corning Metpath), a certified clinical laboratory, to conduct the actual analyses of the specimens gathered from subject employees. School Board policy and the pertinent federal regulations require that drug testing be conducted un-announced on a random selection basis and must equal or exceed fifty percent of the total number of individuals in each subject class. Consistent with the policy and federal requirement, sometime prior to January 23, 1995, Max Loden, the Board's supervisor of support services and its project coordinator for drug testing, compiled a list of all subject employees which he thereafter furnished to FirstLab. FirstLab, in turn, through use of its computers, generated a random list of those subject employees who were to be drug tested in calendar year 1995. The list for the first quarter of calendar year 1995 was telefaxed by FirstLab to Mr. Loden on January 23, 1995. Respondent's name appeared on that list. Also, sometime during January 1995, the Board conducted one-hour workshops for all bus drivers to inform them of its policy regarding drug testing. At those training sessions, a handbook describing the program was furnished to each driver. Each driver who received such a handbook signed a receipt to that effect. On January 26, 1995, Ms. Murray signed a receipt indicating she had received the information handbook describing the Board's drug policy. As a part of its implementation of the testing program, some time before March 1995, the Board contracted with Doctors Walk-In Clinic, (Clinic), located on US 19 North in Clearwater, to be a drug testing site. A complete and detailed collection procedure was developed which, all available evidence indicates, is designed to preserve the confidentiality of the donor, and to ensure that the integrity of each sample is maintained to guarantee a match of sample with donor and against contamination by any outside source. This procedure was followed in Ms. Murray's case. On the morning of March 10, 1995, Respondent was notified by a Board representative that she was to report to Doctors Walk-In Clinic for a drug test before 9:35 AM that day. Ms. Murray reported to the proper location for testing as instructed, where the sample was collected according to the defined collection procedure, by Ashar Deshbande, a lab technician at the Clinic. Once the sample was collected, Ms. Deshbande completed the required portions of the federal drug testing custody and control form for shipment of the sample to Corning-Metpath for analysis. Portions of this form are completed by both the technician and the donor, and a detailed procedure is prescribed and followed for the securing, packaging and transmission of the sample from the collection site to the laboratory. This procedure, which was followed in this case, is designed to insure that the sample collected from the individual donor is properly identified, secured and transmitted to the lab without any reasonable possibility of contamination. Respondent's sample was received at Corning Metpath, a facility licensed to conduct this type of laboratory analysis by both the appropriate federal and Florida authorities, on March 14, 1995. When inspected at Corning Metpath, the sample was found to have all security seals intact and undisturbed. The identification number on the specimen was compared with the number on the requisition form submitted by the Clinic and found to be identical. It is found, therefore, that the sample collected from Respondent on March 10, 1995, immediately secured, identified and prepared shipment to Corning Metpath, and thereafter shipped by air to Corning Metpath, was the same sample as received by the laboratory on March 14, 1995 and it had not been contaminated by any outside source at time of receipt by the lab. A tracking number to be used for laboratory internal tracking was also assigned at that time. Several distinct tests were run at Corning Metpath on the instant specimen collected from Respondent. The first was a screening test, conducted on March 15, 1995. In this test, the sample is placed within a batch of control samples used to insure the instrumentation is properly functioning during the process of analysis. This screening process tests for five drug classes. These include amphetamines, phincyclatine, PCP, opiates and marijuana. In the course of the test, only a small portion of the sample is utilized. The remainder of the collected sample is placed in a locked cage for temporary storage. The sample to be used is then taken the preparation room to the screening room where instrumentation reads the identifying bar code on the containers, performs the analysis and produces a print out. Once the process is completed, this tested sample portion is discarded. In the instant case, the screening test indicated Respondent's specimen showed a numerical value of 370. This is more than twice the minimal indicator calibrated for indicating the presence of cocaine. When the specimen tested positive for cocaine, the sample was removed from the test batch and secured in a locked refrigerator for confirmation testing. The next day, March 16, 1995, the Respondent's positive sample was removed from the locked refrigerator and subjected to confirmation testing. Confirmation testing is accomplished by a staff team entirely different from those individuals who made up the screening test personnel. The confirmation testing is done on only one specimen at a time and no more than that sample under test is opened. In a confirmation test, the standards of which are even more stringent than those for the screening test, Respondent's sample again tested positive for cocaine. The test results indicating a positive result of the laboratory analysis were received from FirstLab by Mr. Loden at the Board on March 23, 1995. Mr. Loden immediately notified the Board's Office of Professional Standards that a positive result had been received on Ms. Murray's sample, and a decision was then made to suspend Ms. Murray, with pay, until dismissal action could be considered by the Board at its next regularly scheduled meeting. Before the Board meeting could be held, Ms. Murray requested formal hearing. Ms. Murray denied under oath ever using cocaine and affirmatively stated she did not use drugs. She could not, however, give any explanation as to how cocaine metabolite could have been present in her urine. Ms. Murray has lived in Pinellas County for 32 years and has been employed by the Board as a bus driver for six years. Prior to the instance under consideration here, she claims, she has never been in any trouble with the Board and has never been convicted of a crime. When interviewed by Dr. O'Howell on the day the test results were received, she was advised of the results and that if she resigned, the incident would not appear in the papers. Because, she claims, she has not used drugs for at least one year prior to this incident, Ms. Murray declined to resign and was dismissed. She asserts that in briefings given to employees, they were told that if they were to come to their supervisor and indicate they needed help, they would not be fired. She knows of at least one other employee who tested positive for drugs and was not fired. That individual was not identified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Arlene Murray, be terminated for cause from employment as a school bus driver with the Pinellas County Schools. RECOMMENDED this 27th day of October, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Eduardo LaTour, Esquire Tarpon Tower, Suite 400 905 East Martin Luther King, Jr. Drive Tarpon Springs, Florida 34689-4815 Dr. J. Howard Hinesley Superintendent Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
