The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 February, 2011.
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.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
