The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
The Issue Was Respondent lawfully terminated from his position as a waste water treatment plant operator.
Findings Of Fact 1. Respondent was employed by the Board as a waste water treatment plant operator since at least August 19, 1999. 2. On the night of August 9, 2000, Respondent was present at a dwelling located at 6079 Hilburn Road, Pensacola, Florida. This is a dwelling which is leased by Nicholas Monteleone. 3. Deputy James Newton of the Escambia County Sheriff's Office, along with other officers, executed a search warrant at the dwelling located at 6079 Hilburn Road on August 9, 2000. The apparent target of the warrant was Nicholas Monteleone and the crime giving rise to the search warrant was possession and distribution of LSD, a controlled substance. 4. Deputy Newton was stationed at the rear exit of the dwelling during the execution of the warrant. When the officers executing the warrant knocked on the front door of the dwelling, Deputy Newton observed three individuals run out of the back door. 5. Deputy Newton observed the second individual reach into his pants pocket, pull out an object, and throw it on the ground. This individual was identified by Deputy Newton as being the Respondent. Deputy Newton retrieved the object, which was determined to be a small bag containing an unknown substance. The matter in the bag was field tested for controlled substances. The test revealed the presence of cocaine. 6. Charles Peterson is the assistant director of maintenance services for the Board and as such, is Respondent's supervisor. 7. Mr. Peterson learned of Respondent's arrest on August 10, 2000. Subsequent to a meeting between Mr. Peterson, Dr. Douglas Garber, who is the Board's Assistant Superintendent for Human Resources; Mark Pursell; and the Board's risk manager, it was determined that reasonable suspicion existed to believe Respondent possessed cocaine in his body. They decided to require that Respondent submit to a drug test. 8. Mr. Peterson, Dr. Garber, Mark Pursell, and the risk Manager determined that Mr. Peterson should escort Respondent to the Baptist Medical Park Occupational Health facility in Pensacola, Florida. This decision occurred while Respondent was on leave. Mr. Peterson complied with this instruction on August 22, 2000. 9. At the facility Respondent provided a urine sample and signed a statement certifying as follows: "I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct." 10. Although the sample collector, Cynthia Watkins, deviated from the facility procedures for urine collection, the procedures she used were sufficient to ensure that the urine collected was in fact Respondent's. Her logs indicated that Respondent was the only person from whom she collected urine on August 22, 2000. A proper chain of custody was prepared and the sample was sent to Rapid-Net, a drug testing laboratory in Miami, Florida. 11. On August 30, 2000, the laboratory determined that Respondent's urine contained cocaine metabolite. On August 31, 2000, a medical review officer certified this finding. 12. Respondent had signed a document, on August 19, 1999, certifying that he had received the Board's notice to employees regarding the drug-free workplace policy. Respondent had further certified that he understood that compliance with the policy was a condition of employment. At the hearing Respondent asserted that he was fully aware of this policy prior to the incidents giving rise to this hearing. 13. The Board's "NOTICE TO EMPLOYEES REGARDING DRUG-FREE WORKPLACE PROGRAM" states as follows: "It is a violation of the policy of the School Board for any employee to manufacture, distribute, dispense, possess or use drugs whether in the workplace or away from the workplace including non-working hours." 14, The policy further recites that the Board may require an employee to submit to a drug test upon reasonable suspicion. 15. Respondent took voluntary drug tests and results were determined on August 31, 2000, September 6, 2000, and December 31, 2000. All of these drug tests were negative for controlled substances. 16. The Respondent possessed drugs within his body on August 22, 2000, as demonstrated by a urinalysis based on reasonable suspicion. This possession violated the Board's drug-free workplace policy. It is the consistent practice of the Board to terminate employees who are found to be involved with illegal drugs.
Conclusions For Petitioner: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 For Respondent: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered terminating Respondent, Constantine V. Varazo, from his employment by the Escambia County School Board. DONE AND ENTERED this 1e(G day of June, 2001, in Tallahassee, Leon County, Florida. Y L. HOOPKR ) 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 /“@*day of June, 2001. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent is guilty of violating Petitioner's rule requiring that all employees Respondent's job classification submit to random drug testing.
Findings Of Fact At all material times, Petitioner employed Respondent as a school bus driver. On January 12, 1995, Petitioner's representatives conducted a Drug Free Workplace Employee Training Session, which was attended by Respondent. This training session was one of many such sessions at which Petitioner's representatives explained to each covered employee the provisions of Petitioner's drug policies. These provisions include a provision that a refusal to take a random drug test is tantamount to failing a drug test and a basis for termination. The Employee Information on Drug and Alcohol Testing, which is the handbook distributed to Petitioner's school bus drivers, including Respondent, informs each driver that Petitioner will annually administer random drug tests to half of the driver positions and that, if selected for a random drug test, the driver must report immediately to the testing laboratory. The employee handbook informs drivers that a refusal to submit to a random drug test is prohibited. The employee handbook explains that engaging "in conduct that clearly obstructs the testing process" constitutes a refusal to submit to a random drug test. The employee handbook notes that conduct obstructing the testing process includes a "failure to immediately report to the testing facility after notification." Finally, the employee handbook warns that Petitioner may terminate drivers who have engaged in prohibited behavior. Article 32, Section 2, of the 1998-2000 Agreement Between the School Board of Pinellas County, Florida, and School Employees Union, Local 1221, Firemen & Oilers, An Affiliate of Service Employees International Union, AFL/CIO, CLC, contains the same requirements as those set forth above in the employee handbook. Section 3 warns that a violation of any of these requirements by a covered employee may result in termination. On March 21, 2000, Petitioner's Transportation Clerk Specialist II summoned Respondent to the transportation offices. When Respondent reported to her office, the clerk informed Respondent that she had selected him for random drug testing. Obviously, element of surprise is an important feature of random drug testing. Equally important to random drug testing is the control of the subject between the point at which he is informed that he is to take a random drug test and the production of the sample or samples to be tested; given enough time between the notification and the test, a subject might be able to ingest substances that could interfere with the ability of the test to detect drugs. Also important to random drug testing is the confirmation that the person presenting himself at the testing laboratory is the person who has been randomly selected for testing. Each of these elements plays a role in this case. Petitioner's clerk checked Respondent's identification, including his driver's license, and explained to him the procedures that he was to follow. Respondent had undergone random drug testing in the past while employed by Petitioner. In brief, Petitioner's clerk told Respondent that he had to report immediately to the testing laboratory, which is a short drive from the office. The clerk instructed Respondent to sign in upon arrival at the laboratory and, when called, to present all of the paperwork that she was giving him, as well as his driver's license. Petitioner's clerk warned him that he could not leave the laboratory premises until he had completed the drug test. Respondent reported immediately to the laboratory and signed in, as instructed. When called, Respondent presented his paperwork to the laboratory clerk, but he did not produce his driver's license, claiming that he did not have it with him. Respondent is not the first employee to appear at the laboratory without suitable identification. Petitioner's procedure is to maintain a photocopy of each employee's driver's license and fax the photocopy to the laboratory when employees report to the laboratory without identification. If the laboratory clerk cannot positively confirm the identification of the employee from the photocopied identification, then the laboratory employee detains the employee while Petitioner sends the employee's supervisor to the nearby laboratory to confirm the identity of the employee. Once done, the drug test proceeds. Pursuant to this procedure, the laboratory clerk telephoned Petitioner's clerk and informed her that Respondent had failed to produce his driver's license. The testimony of the laboratory clerk and Petitioner's clerk diverges at this point; each claims that the other clerk spoke to Respondent. However, the laboratory clerk testifies that she summarized the instructions given Respondent over the telephone by Petitioner's clerk. Just before Respondent left the reception room to search the bus for his driver's license, the laboratory clerk told him that he could go to the bus to look for his driver's license, but he was to return to the reception room. In any event, the clerks agree that Respondent received permission to return, unescorted, to his bus to search for his driver's license--a deviation from established procedure that prohibits the employee from leaving the laboratory once he has reported for a random drug test. The testimony of the clerks establishes that Respondent was permitted to return, unescorted, to his bus to search for his driver's license. The testimony of the laboratory clerk establishes that she clearly directed Respondent to look for his driver's license in the bus and return to the reception room. The discrepancy in the testimony of the clerks as to who conveyed the substance of the additional instructions to Respondent is, ultimately, immaterial; the possibility that one of the clerks could have given Respondent permission to leave the laboratory parking lot to search for his driver's license, or the possibility that Respondent could have misunderstood the clerk to have given him this permission, is negated by Respondent's later conversation with the Assistant Director of Transportation, as set forth below. Following his conversation with the laboratory clerk and possibly Petitioner's clerk, Respondent left the laboratory and went to his bus, ostensibly to search for his driver's license. Respondent did not return to the laboratory, but, instead, drove his bus back to the bus compound. Evidently, Respondent went home after returning his bus. One to one and one-half hours after leaving the laboratory, Respondent telephoned Petitioner's clerk and informed her that he had not found his license and had instead become sick, so he had gone home to eat something and take his medicine. Respondent told her that he had retraced his steps, but had not found his driver's license. At this point, Petitioner's clerk transferred the call to her supervisor, who is the Assistant Director of Transportation. The Assistant Director of Transportation started their conversation by stating her understanding that Petitioner had sent Respondent for a random drug test, but he had not completed it. Respondent answered that he could not find his driver's license and believed that Petitioner's clerk may have failed to return it to him earlier in the morning when she had examined it. The Assistant Director of Transportation replied that the clerk had looked for the driver's license and failed to find it, so that they were sure that she had not failed to return it to Respondent. Pausing for about five seconds, Respondent answered, "I wasn't feeling well. I had to go home and take my medication." The Assistant Director of Transportation replied that she would treat this as a refusal to submit to a drug test. They spoke for a few moments more, confirming that Respondent was calling from his home and that the bus was at the compound. The Assistant Director then directed Respondent not to report to work and told him that a personnel employee would be contacting him. Respondent concluded the conversation by repeating that he had not been feeling well. At no point in the conversation with Petitioner's clerk or the Assistant Director of Transportation did Respondent ever claim that he left the laboratory parking lot with the permission of Petitioner's clerk or the laboratory clerk or that he left the laboratory parking lot thinking that he had the permission of one of the clerks. It appears that he had ample opportunity in his conversation with the Assistant Director of Transportation to make this claim. Instead, Respondent merely repeated his claim that he became ill. Thus, it is very likely that Respondent clearly understood the final directions of the laboratory clerk: Respondent was to search his bus for the driver's license and then return to the laboratory reception room. It is thus not difficult to determine that it is considerably more likely than not that Respondent left the laboratory parking lot, knowing that he did not have the permission of either clerk to do so. Petitioner's witnesses testified candidly. The Assistant Director of Transportation did not appear overbearing or intimidating, so as to deter Respondent from presenting all of the facts in his defense, such as a claim that he had left the parking lot with the accurate or mistaken impression that he could do so in an effort to find his driver's license. It is only a little more difficult to determine that Respondent's claim of illness as the cause for his departure from the parking lot is more likely than not to be a fabrication. The coincidence of a random drug test, misplaced driver's license, and sudden onset of debilitating illness is unlikely. Presumably, the illness would have arisen after Respondent had spoken to the laboratory clerk, or else Respondent would have mentioned something to her when he was in the reception room. Even if Respondent had been suddenly struck by some illness while on his way to search the bus or while searching the bus, he would have been able to return to the reception room and tell the laboratory clerk either that he had fallen ill and had to go home immediately or that he had fallen ill and needed to produce a urine sample immediately, with or without further identification. Obviously, the illness had not been so debilitating to have prevented Respondent from returning to the reception room and telling the laboratory clerk of the illness; after all, Respondent was able to drive the bus to the bus compound and then drive himself home. Based on all of the facts, Petitioner properly treated Respondent's acts and omissions as the equivalent of refusing to submit to a random drug test and, as authorized by the collective bargaining agreement, properly terminated Respondent's employment as a school bus driver.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2000. COPIES FURNISHED: Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 Jacqueline M. Spoto, Staff Attorney Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Glenn Cromartie 1639 26th Street, South St. Petersburg, Florida 33712
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),1/ and Florida Administrative Code Rule 11B-27.0011(4)(d); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would come back positive or indicate any reason to distrust the drug test laboratory. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and on the label affixed to each specimen bottle is correct." Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for 20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive). Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455. No evidence of any prior disciplinary history was introduced for Officer Barcia.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.
The Issue In his Proposed Recommended Order, counsel for Petitioner concedes that the crime to which Respondent pleaded guilty is classified as a federal misdemeanor, not a felony. For that reason, Count II of the Complaint is no longer in issue. The remaining issue for determination is whether the crime to which Respondent pleaded guilty involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, and if so, what disciplinary action is appropriate.
Findings Of Fact The following Findings of Fact are adopted, verbatim, from both parties' Proposed Recommended Orders: Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the Rules promulgated pursuant thereto. Respondent Bruce E. Walker is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 0110184 in accordance with Chapter 475, Florida Statutes. The last license to Respondent was as a salesman, Quest and Company, LTD, 13829 - 80th Avenue North, Seminole, Florida 33542. On September 27, 1985, in federal court, Respondent was convicted upon his plea of guilty to the criminal offense of conspiracy involving adulterated and misbranded medication. Respondent was sentenced to be imprisoned for one year but the imprisonment was suspended. Respondent was placed on probation for 18 months of community service, fined $1,000.00 and a $25.00 special assessment was imposed. The crime of which the Respondent was convicted is classified as a federal misdemeanor by law. The Respondent was convicted of the federal misdemeanor as a result of a plea to a charge of conspiracy although the Respondent quite candidly still denies that he conspired to do anything wrong, other than to provide unused free medication samples received from various drug manufacturing companies such as Pfizer, Upjohn, or whoever else called upon his office. The unused medication samples are quite often provided to the American Association of Retired Persons (AARP) or other charitable health care providing services. When the Respondent was approached by an individual offering to take one or more several [SIC] large sackfuls of the free medical samples and dispose of them, the Respondent was more than willing. Previously, the Respondent had been able to have the unused medicine samples incinerated by a friend at a funeral home. The Respondent in fact provided medicines to this individual on two occasions, one of which was after he had received payment from his "Cocon- spirator." (Transcript pages 25-29.) The parties concur in the official recognition of Florida Statutes and the Florida Administrative Procedure Code, in particular Section 20.30, Chapters 20, 455 and 475, Florida Statutes. Respondent was one of a large number of practicing physicians in Florida and elsewhere who were drawn into a scheme for the sale of free sample medications. While Dr. Walker solicited some free drugs from companies, he either used those personally or gave them to patients whom he knew could not otherwise afford them. The samples he sold were unsolicited surplus. None were "controlled substances." Dr. Walker sold the samples on two occasions. On the first occasion he was approached by an individual whom he did not know; he gave the individual two garbage bags full of the samples, without any discussion of payment. Later, an envelope with money was left with his secretary. He had some misgivings about the money but did not question the individual when the second collection of samples was made. When the F.B.I. contacted him regarding their investigation, he cooperated fully. This was acknowledged and taken into consideration by the Government when he was sentenced. Dr. Walker was released from probation on March 26, 1987. The suspension of his medical license has been stayed pending the outcome of an appeal.
Recommendation Based on the foregoing, it is recommended that the Administrative Complaint in this case be dismissed. DONE and ORDERED this 22nd day of June, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2183 The following constitute my rulings on the parties' Proposed Findings of Fact. Petitioner's Proposed Findings of Fact #1-7 Adopted in Paragraph #1. (no paragraph #3 provided.) Respondent's Proposed Findings of Fact #1-7 Adopted in Paragraph #1. (no paragraph #3 provided.) #7-14 Rejected as cumulative and unnecessary. #15 Adopted in Paragraph #2. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gardner W. Beckett, Jr., Esquire 123 Eighth Street, North St. Petersburg, Florida 33701 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(d); and, if so, the appropriate penalty.
Findings Of Fact Petitioner is an agency of the State of Florida responsible for the certification and the revocation of certification of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes. Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 332010 to Respondent on July 24, 2003. As part of her employment agreement with the Florida Department of Corrections (DC), Respondent agreed to submit to random drug testing. See also § 944.474, Fla. Stat. (providing DC with the authority to develop a program for random drug testing of all employees). On June 22, 2018, DC requested that Respondent submit to a random drug test and she provided a urine sample that same day. Prior to her submission of the urine sample, Respondent provided photo identification to the lab technician to verify her identity. Respondent did not notify DC of any reason why her urine sample might test positive for a controlled substance. After submitting her urine sample, Respondent signed a form that stated: I [the Respondent] certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner, each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct. Respondent does not dispute the testing procedures, chain of custody, qualifications, or accreditation of the laboratory and its employees that analyzed her urine specimen. Respondent also does not dispute that this was a “drug test” as defined under section 112.0455(5)(j), Florida Statutes. Section 112.0455 is known as “the Drug-Free Workplace Act,” and authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Instead, it relied on the testimony of Dr. Widerspan, the medical review officer who analyzed Respondent’s drug test, and Dr. Schwimmer, the director of medical review services at Doctor’s Review Services, which employs Dr. Widerspan, to establish those results. Dr. Schwimmer testified as to the testing and evaluation procedures utilized generally at Doctor’s Review Services. He noted that his office does not conduct the drug test, but rather, a separate laboratory conducts it. Medical review officers within his office review the results of positive tests. With respect to marijuana, Dr. Schwimmer testified that the laboratory conducts a two-stage testing process. First, the laboratory conducts an immunoassay, or screening test, that he described as a reactive test. If that first test reveals presence of delta-9 tetrahydrocannabinol/marijuana (delta-9 THC) for the marijuana metabolite at or above 15 ng/ml, the laboratory will then conduct a gas spectrometry test, which he described as more detailed and not reactive. If the gas spectrometry test confirms the concentration of delta-9 THC for the marijuana metabolite at or above 15 ng/ml, Dr. Schwimmer explained that the laboratory then refers the test to Doctor’s Review Services for review by a medical review officer. Dr. Schwimmer further testified that when a medical review officer receives the results of a test that reflects a concentration of marijuana in excess of 15 ng/ml, the medical review officer speaks with the subject of the test to determine if the subject has a valid medical explanation that the medical review officer can verify. According to Dr. Schwimmer, the only verifiable valid medical explanation for a positive marijuana test is if a subject presented a prescription for Dronabinol, also known as Marinol, and the subject ingested Dronabinol prior to the drug test. If a subject provides a verifiable, valid medical explanation for a positive marijuana test, a medical review officer may overturn the laboratory’s findings. Dr. Widerspan is a practicing physician and has been a certified medical review officer since 2015; she testified that she has evaluated over 50 urine specimens as a medical review officer. Dr. Widerspan was the medical review officer who reviewed the results of Respondent’s drug test. She testified that she saw the results of the marijuana metabolite concentration in Respondent’s drug test, which were transmitted electronically to her from the testing laboratory, and which she stated reflected a positive marijuana test. Again, Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Dr. Widerspan testified that she contacted Respondent to determine if a valid medical explanation existed to justify the positive result of the drug test, and after that conversation, determined that Respondent did not present a valid medical explanation. Respondent, an approximately 16-year veteran of DC, testified and presented credible evidence that she suffered from multiple issues related to her back, starting in 2017. As a result, Respondent stated that she took over-the-counter cannabidiol oil (CBD) for back pain around the time of her drug test. Respondent testified that she explored, and ultimately decided to ingest the over-the-counter CBD oil as an alternative to other prescribed pain medication, so that she would not be “woozy” or “goofy” at work, and because, as a correctional officer, she needed to be “aware and alert.” Petitioner and Respondent both provided evidence that Respondent purchased an over-the-counter CBD oil product from a local pharmacy near the time of the drug test. However, Respondent did not provide evidence that a medical professional prescribed the use of CBD oil or any marijuana-related products for her back. Respondent denied ingesting illegal marijuana during her employment with DC, but admitted ingesting over-the-counter CBD oil around the time of her drug test. Dr. Schwimmer testified that the medical review officers at Doctor’s Review Services will not consider a subject’s claim that he or she ingested CBD oil to overturn a drug test that is positive for marijuana because “it is not verifiable.” He further explained: If they are taking a product that is sold legally in the State of Florida, we don’t believe that normal usage would be a valid medical explanation because the levels required are well beyond what you would expect to see from that normal usage. Dr. Schwimmer further testified that “normal” CBD oil should have no more than 0.3% THC, which is very low, and thus should not trigger a positive marijuana test, even if the subject ingests it regularly. Dr. Widerspan similarly testified: Because the THC content within a CBD oil product is a trace amount, which is not - - would not be expected to come up as a positive test. It is not expected to develop a concentration strong enough to show up as a confirmed positive test. Respondent testified that she spoke with Dr. Widerspan after receiving a phone call where Dr. Widerspan indicated that her drug test was positive for marijuana, and Respondent told Dr. Widerspan that she ingested over-the-counter CBD oil. Respondent further provided copies of the bottle of the CBD product, as well as receipts of purchase, to Doctor’s Review Services. Dr. Widerspan stated that she advised Respondent that Respondent failed to provide her with a valid medical explanation that would permit her to overturn the result because over-the- counter CBD oil is not an acceptable prescribed medication, such as Dronabinol. It bears repeating that Petitioner did not introduce into evidence the actual result of Respondent’s June 22, 2018, drug test. Instead, Petitioner apparently relies solely on the testimony of Dr. Schwimmer and Dr. Widerspan to establish that Respondent’s June 22, 2018, drug test resulted in a positive test for marijuana, and in turn, that Respondent failed to maintain good moral character. The only exhibit that Petitioner introduced was a receipt from the local pharmacy where Respondent stated she purchased the over-the-counter CBD product. Respondent introduced into evidence, among other things, a series of letters from current and past co-employees of DC, that attest to her professionalism, strong work ethic, and leadership abilities at DC, as mitigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint against Terri D. Roberts. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2019. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Terri D. Roberts (Address of Record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
