Findings Of Fact Respondent, Tedd B. Williams (Williams), was certified by Petitioner, Criminal Justice Standards and Training Commission (Commission), on March 13, 1985, and was issued Corrections Certificate Number 03-85-502-01. Williams' social security number is 128-50-2456. In September, 1992, Williams was employed by the Broward County Sheriff's Office (Sheriff's Office) as a correctional officer. Each employee of the Sheriff's Office is assigned an employee identification number. Williams' employee identification number was 3973. The Sheriff's Office had implemented a drug testing policy by which a computer would randomly select employees to be tested for drug use. The employees selected would be given notice and would be required to give a urine sample, which would be analyzed by a laboratory. The Sheriff's Office contracted with Sunshine Medical Center (Sunshine) for the collection and testing of the urine samples. Williams was selected by the computer for drug testing. On September 30, 1992, Williams gave a urine sample for testing. The specimen identification number assigned to Williams' sample was 1052539-4. Williams' specimen number, employee number, and social security number were placed on a collector's form which accompanied the specimen to the laboratory. Williams certified on the collector's form that the label on the bottle in which the specimen was placed bore the identification number of 1052539-4 and the bottle was sealed in his presence with tamper evident tape. Williams indicated on the collector's form that he had taken the following medications within the previous 30 days: Tylenol, Penicillin, vitamins, amino acids and yohimbe bark. Sunshine sent Williams' specimen to National Health Laboratories (National) for forensic testing. The specimen bottle arrived on October 2, 1992, at National in a sealed bag with the bottle seal intact and bearing specimen identification number 1052539-4. Williams' specimen was tested at National. The test results were positive for cocaine metabolite. The gas chromatography/mass spectrometry (GC/MS) cutoff for cocaine metabolite was 150 nanograms per milliliter (NG/ML). Williams' specimen tested at 205 NG/ML. The GC/MS test used to analyze Williams' specimen is 100 percent accurate for the detection of cocaine metabolite. National conducted a second analysis which confirmed the positive result. National reported the test results to Sunshine. Dr. James Byrnes, who was Medical Review Officer at Sunshine, met with Williams on October 9, 1992, to discuss the positive test results and to ascertain whether any medications Williams had taken prior to the testing could have caused the test results to be positive. Williams advised Dr. Byrnes that he did take some products related to his weight lifting program and he showed the products to the doctor. Based on a review of the labels on the bottles, Dr. Byrnes could not document that the use of the products would cause the test results to be positive for cocaine metabolite and concluded that there was no reason for the positive drug test for cocaine, other than Williams' own use of cocaine. On October 15, 1992, Sergeant William Robshaw, who was assigned to Internal Affairs at the Sheriff's Office, met with Williams, who provided Sergeant Robshaw with samples of supplements and vitamins that he had been taking. Sergeant Robshaw received the following from Williams: a bottle of "Fast Mass," a bottle of "Super Yohimbe Gold," a bottle of Siberian Ginseng Root," a bottle of "Xtla Boost," a bottle of Whild American Gold Seal Herb," a bottle of "Sports Pep," and a plastic bag containing eleven capsules and pills. The samples were submitted to the Sheriff's Office crime laboratory, where they were analyzed by Allen Greenspan. The samples tested negative for the presence of cocaine. Mr. Greenspan prepared a report of his analysis, which was forwarded to Dr. Byrnes and received by Dr. Howard Taylor, the Laboratory Director at National. It was the opinion of Dr. Byrnes and Dr. Taylor that the samples would not produce a positive test result for cocaine metabolite. Dr. Taylor, who was qualified as an expert in forensic toxicologist, opined that only the ingestion of cocaine could have resulted in Williams' test results of 205 NG/ML of cocaine metabolite. Dr. Taylor further opined that the presence of cocaine will remain in the body two to three days after ingestion. Williams did not contest the presence of cocaine in his body, only whether he willfully ingested cocaine. Williams offered no plausible explanation of how he came to ingest cocaine, other than willfully. Accordingly, I find that Williams did willfully ingest cocaine within at least two to three days prior to giving a urine sample for testing on September 30, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice and Standards and Training Commission enter a final order (1) finding Tedd B. Williams guilty of having failed to maintain "good moral character," in violation of Section 943.13(7), Florida Statutes, by his unlawful use of cocaine and (2) revoking his certification based on such a finding. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0238 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Tedd B. Williams 466 East Evanston Circle Fort Lauderdale, Florida 33312 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Request for Proposals On March 14, 2001, the Board authorized the issuance of a request for proposals to solicit offers on a contract for drug screening services. Soon, Request for Proposals No. 149-AA10 (the “RFP”) was issued. The purpose of the RFP, as stated on the first page thereof, was [t]o obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services both to meet the general requirements for collection and drug screening services; and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (Attachment A). The deadline for submission of proposals in response to the RFP was April 10, 2001. Page 3 of the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (the “Guide”) explained that applicants and employees are tested in the following circumstances: (1) upon application for full-time employment; (2) when "reasonable suspicion"1 exists to believe that an employee has impermissibly used drugs or alcohol; (3) as part of routine "fitness for duty" medical examinations2; and (4) as a "follow up" to an employee's completion of a drug rehabilitation program. Because the District employs persons performing safety- sensitive functions and persons who hold commercial driver licenses, the District must comply with a federal law known as the Omnibus Transportation Employee Testing Act (“OTETA”). Employees covered by OTETA are subject to pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, "return-to-duty" testing (after a positive test), follow-up testing, and annual testing. Guide, pp. 10-14. Unlike other employees, persons falling under OTETA are not subject to blood alcohol screening. Guide, p. 22. The type of drug test that the District most frequently requests involves urinalysis. For alcohol testing, breath analysis is the normal practice. Blood alcohol testing is used infrequently. The RFP did not explicitly disclose the District’s relative demand for these various types of tests. Section V of the RFP prescribed the technical requirements with which proposers needed to comply. Subsection C thereof stated, in pertinent part: The collection site is a place where individuals present themselves for the purpose of providing urine or blood specimens to be analyzed for the presence of drugs or alcohol. Page 15 of the Guide added that "[c]ollection sites shall have all of the necessary personnel, materials, equipment, facilities, and supervision to provide for the collection, security, temporary storage, and shipping or transportation of urine specimens to a certified drug testing laboratory." Section V, subsection K set forth four “location parameters [as] examples of locations which shall comprise the areas for collection and drug screening to insure [sic] convenience for applicants and employees.” These “location parameters” essentially divided the Miami-Dade County service area into quadrants. Section V, subsection L, provided in relevant part: “Mobile collection of specimens will be required at some of the Regional Transportation Centers[.]” The Guide, at page 15, further mandated that "[m]obile collection sites" be equipped and staffed "the same as" other collection sites. Section V, subsection M stated, in part: “A collection site is preferred in the area of 1500 Biscayne Boulevard, Miami, Florida 33132, for the convenience of any potential employees who wish to provide specimen collection concurrent with a scheduled interview by the Office of Human Resources.” Section V, subsection N, stated: At least one site in the North end and [sic] of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Section VI of the RFP, which addressed the cost of proposed services, instructed that [p]roposals must include an itemization of charges for collection of specimens, initial and confirmatory tests. Such itemized charges will be used in the event a retest is necessary. Retests required as a result of defective equipment, incorrect analysis, or misinterpretation shall be done at the expense of the provider. Section VIII provided that proposals would be “evaluated by [a] selection committee . . . comprised of representatives of the school district, in order to ascertain which proposal best meets the needs of the School Board.” The selection committee (hereafter, “committee”) was to be composed of one administrator each from five separate offices, which were designated in section VIII. Section VIII also established the evaluation criteria to be used by the committee, stating: Evaluation considerations will include, but not be limited to, the following: Responsiveness of the proposal clearly stating an understanding of the work to be performed meeting all the technical guidelines in [the Guide]. Cost may not be the dominant factor, but will have some significance. It will be a particularly important factor when all other evaluation criteria are relatively equal. Documentation of current certification by DHHS; qualifications of laboratory staff members; past experience and record of performance; verification of references. Location of the laboratory and planned method of pick-up from designated collection sites and transportation of specimens according to chain of custody protocol to the drug testing laboratory; turnaround time relative to volume of expected need; accessibility relative to volume of expected need. Primary emphasis in the selection process will be placed on the independence, background, experience, and service of staff to be assigned to the project. Expertise in the areas addressed in the RFP, and the ability to respond in a timely, accurate manner to the district’s requirements is essential. Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collection/testing. The School District reserves the right to reject any and all proposals submitted and to waive irregularities. . . . . Relevant Details About the Proposals Two proposers, Global and RN, submitted timely responses to the RFP. The following is a look at certain terms in their respective proposals. Global’s Proposal Global was the incumbent provider pursuant to a contract that had been entered into on June 11, 1997. Even before the establishment of the expiring contractual relationship, from 1995 forward, Global had provided general drug testing services for the District. In addition to that, Global had performed fingerprint analyses for the District prior to 1995. Thus, Global had a history with the District. In a Fee Schedule included at page VIII-1 of its proposal, Global quoted the following prices for services: Federal Drug Testing for OTETA covered employees $30.00 * * * Breath Alcohol Testing $25.00 After hour Services Flat fee per donor/employee . $75.00 plus regular testing fee Monday — Friday: 5:00 p.m. — 8:30 a.m. Saturday and Sunday All Day Florida Drug Free Work Place for general employee drug testing $25.00 * * * At page V-1 of its proposal, Global listed ten collection facilities, providing their addresses and hours of operation. According to the proposal, only one of these facilities stays open until midnight. Five of them close each weekday at 4:00 p.m., and four at 5:00 p.m. None is open on weekends. Global offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered a site in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And Global offered at least one site each in the north and south ends of Miami-Dade County, satisfying the geographic requirements of subsection V.N. Global’s south-end site, however, closes at 5:00 p.m. and thus fails to satisfy the requirement, also prescribed in subsection V.N., that such facility remain open until midnight. In addition to these stationary facilities, Global offered the services of a mobile unit. Its proposal stated: ON-SITE COLLECTION After Hours Emergency24 hours Operating hours: Monday — Sunday Via Mobile Unit Global described its mobile unit, at page V-2, as a “self contained air conditioned motor coach equipped with 2 bathrooms, blood drawing chair, urine collection equipment, computerized breach alcohol analyzer with ample facilities for a physician to conduct physical exams on DOT (OTETA) employees and yearly re- certification.” Global, in fact, has three of these mobile units. The vans are available for use by all of Global’s clients. Two vehicles are maintained in Fort Lauderdale, Broward County, Florida, and thus are in position to respond to service calls for the District. The third van is maintained in western Palm Beach County. Because after-hours tests generally are needed in post-accident and reasonable suspicion circumstances, which require a rapid response (within two hours of the incident), the Palm Beach County-based van would not, as a practical matter, likely be deployed for the District. Global does not maintain a mobile unit in Miami-Dade County. B. RN’s Proposal Included in RN’s proposal was the following schedule of costs: RN Expertise charges $27.80 for a 5 panel NIDA drug screen. This charge includes an adulterant panel, 5 panel drug screen, collection of the specimen, transportation charges and MRO charges. There will not be a charge for confirmation tests. RN Expertise charges $26.00 for an 8 panel drug screen. This charge will include an adulterant panel, 8 panel drug screen, collection of the specimen, transportation charges and MRO charges. If the School Board does not elect to have an adulterant panel performed on general tests the charge will be $25.00. RN Expertise charges $25.00 for a breath alcohol test. This also includes on- site testing charges. There will not be a charge for confirmation tests. RN Expertise will charge $30.00 for a blood alcohol test. RN Expertise will submit monthly invoices. These invoices will be submitted to the Office of Operation and Records and/or the Office of Professional Standards (OTETA) through a purchase order. The invoices shall reflect service provided to the Board in the prior month. Regarding collection sites and locations, RN’s proposal stated, at pages 12 through 13: Quest Diagnostics [the laboratory that RN proposed to use] has 14 collection sites in the Miami-Dade County area. Please see Appendix B for all maps of locations and zip code map with all locations that have been highlighted for your convenience. RN Expertise, Inc. will provide all on- site drug screen collections and breath alcohol tests. We have numerous certified collectors and breath alcohol technicians throughout the state who specialize in on site testing. All collectors and BATS have been certified by Christine Steele. Please see Appendix C. for certificates of RN Expertise, Inc. and insurance and licenses. Three Quest patient care centers are located very close to the area of 1500 Biscayne Boulevard, Miami, Florida, 33232. The hours of operation are 7:00 am to 4:30 pm. RN Expertise has arranged three third party sites in the North end of Miami-Dade county and one site in the south end of Miami-Dade County that are available to perform reasonable suspicion and post- accident testing. The hours of operation are from 8:00 am to 12:00 midnight. These addresses are: Workers Compensation Medical Center 17601 N.W. 2nd Avenue Ste S Miami, Florida 33169 Workers Compensation Medical Center 6504 N.W. 77th Court Miami, Florida 33166 Homestead Hospital 160 NW 13th Street Homestead, FL 33030 If these sites are not convenient we can arrange additional sites or provide these tests on an on-site basis. RN offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered sites in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And RN offered at least two sites in the north end of Miami-Dade County and one in the south, all three of which were open from 8:00 a.m. until midnight, thereby satisfying both the geographic and hours of operation requirements of subsection V.N. The Evaluation Committee(s), Mr. Bevan’s Comparison Chart, and the Evaluations A. The Original Committee To evaluate the proposals, a five-person committee was appointed in accordance with the RFP. Its members were Nelson E. Diaz, Deputy Superintendent, Personnel Management and Services; Gwendolyn Jennings Kidney, Assistant Superintendent, Employee Support Programs; Jose Montes de Oca, Assistant Chief Auditor, Management and Compliance Audits; Michael Fox, Risk Analyst, Risk and Benefits Management; and Patricia Freeman, Director, Business Development and Assistance. This committee arranged to meet for the first time on April 11, 2001. Notice of the meeting was not published in advance; the committee would convene in private. The following staff persons were asked to be present at the April 11 meeting to provide technical expertise, if needed: Vera Hirsh, Administrative Director, Personnel; William Bevan, Executive Director, Personnel Operations and Records; Frederic F. Conde, Executive Director, Office of Professional Standards; and Barbara Jones, Director, Procurement. B. Mr. Bevan’s Comparison Chart Before the April 11, 2001, meeting, Ms. Hirsh asked Mr. Bevan, as a technical advisor to the committee, to prepare a comparison of the two proposals. At the time, Mr. Bevan was most knowledgeable about the District’s procedures for drug testing, because he had been directly involved in the general drug testing program. Also, through his work experiences, Mr. Bevan had acquired personal knowledge concerning Global. Indeed, Global had listed Mr. Bevan as a reference in its proposal. Mr. Bevan prepared a comparison chart that was distributed to all the members of the committee. The following table contains the substance of Mr. Bevan's comparison chart:3 Item No. GLOBAL RN EXPERTISE 1 TURNAROUND TIME IS NEXT BUSINESS DAY 5 DAYS ON POSITIVE 24 HOURS FOR NEGATIVES 48 HOURS FOR POSITIVES 2 LOCATION IS FORT LAUDERDALE ALTAMONTE SPRINGS 3 PLAN TO DELINEATE OTETA FROM GENERAL GOOD PLAN PLUS ICON BASED DRUG TEST FORM VERY WEAK PLAN VERY WEAK ANALYSIS 4 COST $30.00 DOT BLIND SAMPLES ARE INCLUDED COST $27.80 NO MENTION OF BLIND SAMPLES 5 POLICE $25.00 ALL ALCOHOL TESTS BOTH BREATH & BLOOD ARE $25.00 $26.00 8 PANEL TEST BREATH ALCOHOL $25.00 BLOOD ALCOHOL $30.00 6 COLLECTION SITES 10 TOTAL SITES 14 TOTAL SITES LESS 4 IN BROWARD, 6 FOR BLOOD DRAW ONLY = 4 NET SITES 7 MOBILE COLLECTION DONE BY MOBILE VAN "WILL PROVIDE ON-SITE COLLECTION" 8 EXPERIENCE 4 YEARS WITH M-DCPS NO SUCCESSFUL LEGITATION [sic] AGAINST M-DCPS US SUGAR ? 9 LABORATORY LAB CORP OF AMERICA LATE IN REPORTING RESULTS ONE TIME IN FOUR YEARS QUEST LABORATORIES QUESTIONABLE 10 ADULTERANT TESTING IS PERFORMED BY LAB CORP AT A STANDARD COURSE OF PROTOCOL WITH NO CHARGE FOR THIS PROCEDURE TESTSURE IS BROKEN OUT AS A SEPARATE ENTITY Because of his personal knowledge of and experience with the drug screening program, Mr. Bevan's opinions carried great weight with the committee members. As will become clear, moreover, Mr. Bevan operated as a de facto evaluator. Thus, for good reasons, his comparison chart drew RN’s close and critical attention. It will be examined in detail below. Item No. 1. This item is helpful as a contrast to the others, for here Mr. Bevan did exactly what a technical advisor should do: provide a concise, accurate, and objective summary of details contained in the proposals without making a subjective judgment as to which proposal is superior. Item No. 2. As Mr. Bevan admitted at hearing, the RFP did not include, as an evaluation criterion, the location of a proposer's base of operations. Testifying, he explained that, "in [his] mind, [a proposer's location] was not something that was in the RFP, but it was important to me." Hearing Transcript (“T.”) 59. Of course, it was not Mr. Bevan's place to make subjective judgments about what was valuable in the proposals—— that was for the evaluators. Further, even the evaluators could not properly take into account undisclosed evaluation criteria. Thus, this comparison was irrelevant and consideration thereof was contrary to the RFP and contrary to competition. Item No. 3. This comparison pertained to the evaluation criterion specified in section VIII, subsection F, which provided: Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collecting/testing. Mr. Bevan dubbed RN's proposal "very weak" and Global's "good" primarily because Global's prototype OTETA form had a transparent drawing of a school bus superimposed over the writing, and its sample form for use by school police officers had a simple, freehand outline of an officer drawn on its face, whereas RN's forms did not have such "icons." Mr. Bevan believed that the pictures of the school bus and police officer would prevent the less intelligent applicants and employees from using the wrong form.4 Although reasonable people might disagree with Mr. Bevan's analysis of the respective merits of the proposals on this criterion, his conclusion was neither arbitrary nor capricious. The problem, however, is that Mr. Bevan was not a member of the committee, and his qualitative judgment went well beyond an even-handed explanation of a technical term or process, or an objective summary of the proposals' details. In other words, as this item clearly shows, Mr. Bevan assumed the role of evaluator. Item No. 4. Mr. Bevan's comparison of "blind sample testing" is interesting because the purpose of focusing on this discrete point, among all others relating to the proposers' price quotes for OTETA testing, seems to have been to blunt the advantage that RN otherwise would enjoy for having offered the lower price. (The comparison effectively says, RN's OTETA test is cheaper, yes, but Global adds value by performing blind samples, whereas RN may not provide this service.) Mr. Bevan could have written, however, with equal accuracy, that RN's price for OTETA testing "includes an adulterant panel" while Global's proposal makes "no mention of adulterant panels," which would have made RN's price quote appear even more attractive as against Global's. RN, however, did not complain about this aspect of Mr. Bevan's analysis; consequently, the undersigned has paid little attention to, and based no ultimate factual determinations or legal conclusions on, this item. Item No. 5. According to the Guide, at page 21, school police officers are required to be tested for eight drugs or classes of drugs. This is called an "8 panel" test or screen. Other employees, in contrast, need only be tested for five drugs or drug classes, using a "5 panel" screen. In his comparison, Mr. Bevan balanced Global's supposed price of $25.00 for police tests against RN's quote of $26.00 for an 8 panel drug screen. Yet, in its Fee Schedule, Global did not specify a separate charge for police tests, 8 panel tests, or 5 panel tests.5 Rather, Global quoted a price of $25.00 for "general employee drug testing." Based on his previous experience with Global, however, Mr. Bevan assumed that Global's charge for police tests would be $25.00, the same as the cost of testing other non-OTETA employees. Mr. Bevan's assumption was dubious at best, even assuming that Global previously had been charging $25.00 for police tests.6 At worst, if Global's historical pricing were ignored (as it should have been, being a fact extrinsic to Global's proposal), Mr. Bevan's assumption was bereft of factual or logical support; it was simply arbitrary. At a minimum, though, Mr. Bevan should have stated, on the comparison chart he provided to the committee, that he was making an assumption in Global’s favor. Without such a qualification, the chart——which purported to compare "apples to apples"——unfairly depicted RN's as unequivocally the costlier proposal on this item, for RN was shown truthfully to have quoted $26.00 for an 8 panel test. Moreover, significantly, Mr. Bevan omitted the fact that RN also had offered a price of $25.00 for an 8 panel screen without an adulterant panel. Thus, not only had Mr. Bevan potentially compared "apples to oranges," he had compounded the problem by making RN's quote for police testing appear higher than it necessarily would need to be. Making the matter worse still, Mr. Bevan represented that Global's price for blood alcohol testing was $25.00 versus $30.00 for the same procedure with RN. Global, however, had not offered to perform blood alcohol tests for $25.00 apiece; it had not quoted any price for such testing. Mr. Bevan assumed that Global's price would be $25.00 based on his past experience with the company. The validity of Mr. Bevan's assumption, again, is questionable;7 at the very least, his assumption should have been disclosed to the committee on the comparison chart. As drafted, without disclosure of Mr. Bevan's Global-friendly assumption, the comparison chart was grossly inequitable to RN, creating the possibly false impression that RN's price for blood alcohol testing was 20% higher than Global's. Finally, in comparing the cost proposals, Mr. Bevan failed to note that Global had quoted a hefty $75.00 surcharge for all "after hour services," meaning tests performed on weekdays between 5:00 p.m. and 8:30 a.m., and anytime on Saturday or Sunday. RN, in contrast, did not similarly propose a 400% price increase for after-hours work, and thus would have been favored by the comparison Mr. Bevan chose not to make. Item No. 6. The issue of collection sites would become crucial. Mr. Bevan's ultimate opinion——that RN had proposed "4 net sites" as against the "10 total sites" offered by Global——was highly subjective and clearly erroneous. To begin, RN's proposal in fact described a total of 17 collection sites——not 14 as Mr. Bevan incorrectly represented. At pages 12 and 13 of its proposal, RN responded sequentially to RFP section V, subsections K (collection sites desired in four quadrants of Miami-Dade County), L (mobile collection required at some Regional Transportation Centers), M (preference for a site near 1500 Biscayne Boulevard), and N (requiring at least one site each in the north and south ends of Miami-Dade County). In response to subsection K, RN proposed to use 14 Quest patient care centers, the locations of which were further described in maps attached to RN's proposal as Appendix B. Three of the 14 Quest centers were represented to meet the preference expressed in subsection M. And RN offered three additional "third party sites" (plainly meaning, in context, sites that were not operated by Quest) to satisfy subsection N. There was and is nothing confusing about RN's response regarding collection sites. No reasonable, fair-minded person, upon reading pages 12 and 13 of RN's proposal, could reasonably conclude that RN was offering a total of only 14 collection sites. Next, four of the Quest sites proposed by RN are located in Broward County. Mr. Bevan decided that these Broward sites should be ignored. The RFP, however, did not prohibit a proposer from offering sites outside Miami-Dade County, and, significantly, RN's proposal satisfied the RFP's technical requirements concerning collection site locations without the Broward sites. Thus, an evaluator (as opposed to Mr. Bevan, who was not one) might have regarded RN's Broward sites either an added value that made RN's proposal more attractive or an unwanted option that neither added to, nor detracted from, RN's proposal. Either way, however, this qualitative decision was not properly Mr. Bevan's to make as a “technical advisor.” Mr. Bevan then subtracted six sites from RN's total because the proposal stated that the sites were available for blood draws only. (In fact, RN's proposal indicated that nine of RN's 17 total sites collected blood samples only; three of the nine are in Broward County and six in Miami-Dade.) Mr. Bevan's decision that "blood only" sites should not be counted was plainly contrary to the RFP, under which blood alcohol testing clearly was a required service. While the evidence showed that the District considers urine collection sites to be much more valuable than “blood only” collection sites, which it views as practically worthless, the RFP nevertheless did not disclose this preference or the relative weight of urine sites versus “blood only” sites. Simply put, the RFP did not allow the evaluators to ignore “blood only” collection sites. At bottom, a fair and balanced comparison (unlike Mr. Bevan's) would have shown that RN had proposed 17 total sites (four in Broward, 13 in Miami-Dade), of which nine (three in Broward, six in Miami-Dade) were "blood only" sites, leaving eight sites (one in Broward, seven in Miami-Dade) that were available for the collection of both urine and blood. An "apples to apples" comparison of Miami-Dade sites available for blood and urine testing would have been Global, ten versus RN, seven. Each evaluator, however, in weighing the relative merits of the two proposals, should have considered RN's ten additional sites——there was no warrant in the RFP for excluding them from the mix à la Mr. Bevan's analysis——and made an independent determination of the value added by those sites. Item No. 7. On this point, Mr. Bevan was unfair to RN——but only a bit. His comparison intentionally drew a distinction between Global's "mobile collection" (the term used in section V.L. of the RFP) and RN's "on-site collection," subtly implying that RN’s proposal might not be responsive, or as responsive as Global’s, to the RFP’s technical guidelines. In fact, however, in its proposal at pages II-2, V-1, V-2, and VIII-1, Global expressly had described the function of its mobile unit as being to provide "on-site" collections; even Global, in other words, considered mobile collection and on-site collection to be fungible concepts. Mr. Bevan's comparison chart thus somewhat unfairly gave Global a gentle semantic boost while concomitantly giving RN a little linguistic gig.8 Standing alone, this comparison would not be noteworthy. Viewed in the light of other, unfair contrasts, however, Mr. Bevan's mobile collection/on-site collection dichotomy takes on a slight hue of partiality.9 Item No. 8. Here, Mr. Bevan made a comparison that was highly unfavorable to RN. One the one side, he portrayed Global attractively as the incumbent vendor that, during a four- year tenure, has not exposed the District to an adverse litigation outcome, and which also provides services to U.S. Sugar (an agricultural concern in South Florida). On RN's side there was only a question mark——nothing more. The meaning was obvious: Global has good credentials, but RN's experience and litigation track record are questionable. This was terribly unfair. RN's proposal included two pages of references listing a number of current clients. Mr. Bevan's explanation at hearing for failing to acknowledge any of RN's references on his comparison chart was that RN's references "were much longer" and would not fit on the page, and that he had "put down what [he] could in the amount of time [he] had." 89. This explanation utterly fails to account for Mr. Bevan's misleading and prejudicial use of a question mark to describe RN's documented experience; it is not credible and is rejected.10 Regarding exposure to lawsuits, Mr. Bevan's comparison was gratuitous. The RFP did not ask for information concerning lawsuits; and the lack of adverse litigation outcomes, while perhaps interesting and even relevant, was not an evaluation criterion. Further, Mr. Bevan was aware of Global's litigation track record not because of information contained in Global's proposal (for such data was not included therein) but because he previously had monitored litigation against the District arising from OTETA testing. Despite relying on facts extrinsic to Global's proposal for this comparison, Mr. Bevan made no attempt to determine whether RN had exposed a client to an adverse litigation outcome and hence had no idea whether RN had or had not done so. Yet, despite the absence of any basis in logic or fact for such a conclusion, the question mark in RN's column (adjacent to the favorable comment about Global) strongly implied that RN either had omitted material information about litigation or disclosed something disturbing or questionable. The unavoidable net effect of this prejudicial and unfair comparison was to put an exclamation point on the fact that Global had served satisfactorily as the incumbent vendor (and thus was a safe choice)——while portraying RN as a pig in a poke (and hence a gamble). Item No. 9. Mr. Bevan shone a flattering light on Laboratory Corporation of America ("LCA," the laboratory used by Global)——only one glitch in four years!——while labeling Quest Diagnostics ("Quest," used by RN) "questionable." This was problematic for several reasons. First, the RFP did not specify a preference for any particular laboratory. Second, Mr. Bevan's judgment was not based on the respective proposals but on his personal experiences. He had been pleased with LCA's services and preferred that the District continue to do business with that laboratory. But, as the comparison chart pointedly neglected to mention, Mr. Bevan's negative opinion of Quest was based on just one incident in which Quest had been slow in reporting the results of a retest that had been requested by an individual who had initially tested positive at LCA and requested that Quest perform the confirmatory test.11 Third, the judgment expressed on the relative merits of the proposers' laboratories was plainly qualitative; in other words, Mr. Bevan was evaluating the proposals, which was not properly his role, for he was not a de jure member of the committee. Item No. 10. Mr. Bevan's representation to the committee that LCA performed adulterant testing at no cost to the District was not based on Global's proposal, which neither mentioned adulterant testing nor quoted a price for such service, but on his experience with Global. (Incidentally, neither Mr. Bevan's testimony, nor any other evidence, persuasively established that Global or LCA had, in fact, been performing adulterant testing. Rather, the District’s employees assumed that such was the case——as it may, or may not, have been.) Aside from the impropriety of relying on facts extrinsic to Global's proposal, Mr. Bevan's contrast with RN's proposal ("TestSure is broken out as a separate entity") was both incorrect and incomplete, producing a false, "apples to oranges" comparison. First, as four pages of descriptive information included in RN's proposal made clear, TestSure is Quest's trademark for its adulterant testing protocol, which Quest considers a "breakthrough in technology for the industry." Contrary to Mr. Bevan's statement, TestSure is not a "separate entity." Thus, the apparently-intended implication that RN's price was higher because it was proposing to use a “separate entity” (in addition to Quest) for adulterant testing was untrue. Second, the information provided by RN concerning TestSure, rather than being a negative strike against RN's proposal, as Mr. Bevan's comparison suggested, was (or should have been) helpful in evaluating RN's proposal, a plus. While the committee certainly could have chosen to discount or ignore Quest's glowing review of its own product as puffery, the fact was that while Global's proposal said nothing about adulterant testing, RN had submitted some information on the subject. Finally, Mr. Bevan did not specify that his remark about Global's supposed offer to provide adulterant testing at "no charge" was merely an assumption that, for all that appears in Global's proposal, may or may not be true. This omission was especially unfair to RN because RN had stated explicitly in its cost proposal that an additional dollar would be charged for an adulterant panel——and that the District could save the dollar by electing not to have the panel performed on general tests. An impartial summary would have acknowledged RN's prices for general tests, both with and without an adulterant panel, and noted that Global's proposal was silent as to whether its quote of $25.00 for general testing included an adulterant panel. To state unqualifiedly that Global would provide adulterant testing for free, when its proposal said nothing of the sort, was patently inequitable. The First Evaluation and Recommendation After meeting for two hours on April 11, and having considered Mr. Bevan’s comparison chart, the committee voted to recommend that the contract be awarded to Global. In the minutes of the meeting, it was reported that [b]oth Proposals were evaluated according to the criteria outlined in the proposal. A comparison was made of services provided, locations for testing, cost, and other requirements. The committee recommended that Global MRO be awarded the contract. In addition to providing a reasonable fee schedule, the locations for drug testing, and the prior outstanding service provided by Global MRO, supports the committee’s decision. RN timely protested the intended award, the Board referred the matter to DOAH, and a final hearing was scheduled for July 30, 2001. Before the final hearing, however, the Board determined that the April 11, 2001, meeting might have occurred in violation of the Sunshine Law. Accordingly, the final hearing was postponed to enable the committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law. The Second Evaluation and Recommendation The committee met for a second time on September 4, 2001, pursuant to a prior written notice of proceedings. The September 4 meeting was open to the public. Although each of the original members of the committee was asked to return, two of them——Mr. Diaz and Ms. Freeman——were unable to attend the second meeting. In their places appeared subordinates as “representatives,” Pat Parham for Mr. Diaz and Enrique Sacasa for Ms. Freeman. Four members of this committee had no direct involvement in or experience with the drug screening services that were the subject of the contract for which proposals had been solicited. Of the five, only Ms. Kidney was knowledgeable about the program areas and service requirements for which contractual services were being sought. Once again, staff persons were present, ostensibly to answer technical questions. Mr. Bevan and Mr. Conde returned. With them this time were Barbara M. Moss, District Director, Office of Professional Standards; Brenda Miles, Executive Director, Professional and Technical Staffing; and Linda Cantin, Supervisor, Division of Procurement Management. Mr. Bevan did not distribute his comparison chart at the committee’s public meeting and made only a couple of comments there in response to questions. After conferring, the committee found both proposals to be responsive and voted unanimously to recommend that Global be awarded the contract. In the minutes of the September 4, 2001, meeting, it was reported that [t]he committee agreed that both proposals were good, and clearly stated an understanding of the work to be performed. There were concerns expressed, however, regarding [RN’s proposal] in reference to the location and convenience of collection sites. . . . . [Global] was selected because of the larger number of collection sites for urine that are available and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and its experience. RN’s Protest By letter to the Board’s counsel dated September 6, 2001, RN amended its pending protest of the first recommendation to challenge the second proposed award with a newly-revised statement of grounds.12 As bases for relief, RN asserted that Global’s proposal was materially non-responsive for failure to comply with several of the RFP’s technical requirements; it also alleged that the committee’s evaluation had been flawed in several respects. Ultimate Factual Determinations Certain Ultimate findings of fact have been rendered below under the heading “Conclusions of Law.” This has been done for organizational convenience and for clarity of analysis. Accordingly, the findings announced in paragraphs 114, 120, 130, 134, 156, 159, 161-64, 167, and 169, infra, are hereby incorporated as Findings of Fact, as if fully set forth in the instant section of this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order rescinding the proposed award to Global. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
The Issue The issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2011.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Of Administrative Hearings this 7th day of September, 1990.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact General Findings Respondent was certified by the Criminal Justice Standards and Training Commission on April 20, 1988, and issued Certificate Number 16-88-002-01. R at 9,10. Respondent was employed as a law enforcement officer with the Tallahassee Police Department from January 22, 1988, through May 21, 1990. R at 9. Findings of Fact as to Count 1 of Petitioner's Administrative Complaint On or about April 9, 1990, a letter, return receipt requested, was delivered as addressed to the Tallahassee Police Department, Internal Affairs. Lieutenant Al Brown in internal affairs ultimately received the letter. The letter was signed by a "Lisa" with no surname and had a return address of 1012 Basin Street, #207-C, a nonexistent address. R at 97-99. The letter alleged Respondent bought and smoked marijuana on a daily basis and suggested he be drug tested. R. at 99. Lieutenant Brown checked the address of the anonymous "Lisa" once, and never inquired into the fate of the green card. R at 101, 139. After role call on April 10, 1990, Respondent and his supervisor, Sergeant John Kirby, were met by Lt. Brown. Lt. Brown informed Respondent an anonymous call from a black female had come in which accused him of drug abuse, and requested he take a voluntary test. R at 61, 101-102. Respondent was not ordered to take the test or threatened with discipline if he refused. R at 35, 66-67, 103-104. However, at no time was Respondent clearly informed no adverse action would be taken if he refused the test. R at 140. Respondent, although unable to secure any information about this alleged call, readily agreed to a test. R at 35, 66. At the time, the Respondent was unaware how long after use marijuana could be detected in urine. R at 283. At approximately 5:00 p.m. on April 10, 1990, Lt. Brown drove the Respondent to Physician's Care Center on North Monroe where a urine sample was taken. R at 105. The Respondent filled out paper work, disrobed, put on a hospital gown, and was instructed by the nurse how to provide the sample. R at 106. Lt. Brown requested two samples be taken so that Respondent could submit one for independent testing. R at 106. However, no one advised the Respondent how to get the second sample tested because Brown and the other supervisors did not know how to initiate such a cross test. Respondent was given a sample cup by the nurse in the lieutenant's presence, and required to urinate in the cup in front of the nurse and the lieutenant. The Respondent produced 85 cc's urine in the cup and gave the cup to the nurse. The nurse poured the sample into two smaller SmithKline collection cups which she sealed with evidence tape which was initialed by the Respondent along with the various forms. The sample was assigned a unique identification number, 278485T, which was placed upon the sample to be tested for the police department. Each of the cups was placed into a blue SmithKline toxicology bag and sealed with red evidence tape and initialed. The Respondent signed the forms and the bar code number. R at 109, 178, 191. The department's sample was retained by Physician's Care and delivered to a SmithKline courier, who checked the seals and maintained the chain of custody while delivering it to SmithKline's Tallahassee facility. The chain of custody was maintained as the sample was shipped by air to the SmithKline facility in Tampa, Florida. The other sample was given to the Respondent. The department's sample was checked upon arrival at SmithKline's lab and all the seals were intact. Maintaining the chain of custody, the sample was tested on April 11, 1990. R at 184-186. First, a screening test was performed which proved positive for THC, a metabolite created in the body when it metabolizes marijuana. R at 189. Thereafter, a confirmatory analysis of the department's sample of the Respondent's urine was performed using gas chromatography mass spectrometry (GCMS). R at 189. GCMS provides a scientifically reliable test for the presence of marijuana metabolites in urine, which indicates with scientific certainty that the person testing positive smoked marijuana. R at 173-176,192,204-206. The Respondent's urine contained 53 nanograms of THC per milliliter of urine. A second test was then performed which reconfirmed the results of the first test. It showed 58 nanograms of THC per milliliter of urine. The variation in metabolite between the tests is within testing limits, and the amount of metabolite shows marijuana use by the Respondent in the opinion of an expert in such testing based upon these tests. The amount of metabolite is inconsistent with "passive inhalation," although the Respondent did not testify to being present when any individuals were smoking marijuana. R 176-178,193. At the time the drug test was administered to Respondent, no mechanisms for certification of samples and no formal training for collectors of samples was in place, and no evidence was presented on the certification of the technician who took Respondent's sample. R at 198-200. On April 17, 1990, after learning of the Respondent's test results, Lt. Brown, Captain Walter NcNeil, and Lt. Newlin went to Respondent's home, informed him of the positive test results and suspended him from TPD. R at 114. The sample identified as Respondent's showed positive at a level more than three times the cut off level. R at 203. Upon learning of the positive test, the Respondent began to seek a way to have his sample tested. He did not find a facility willing to deal with it until April 25, 1990 when he went to the office of Dr. Esias Lee. Respondent submitted a new urine sample at Dr. Lee's office, and also delivered to the technician the original sample he had given on April 10, 1990. The Respondent also provided a blood sample for testing at his own expense. R. at 227-228. The conditions under which the Respondent gave the sample were not as controlled as they had been at Physician's Care Center, and the technician did not oversee taking of the sample by being present when the Respondent produced the sample. The technician taking the samples indicated she would attempt to submit all samples for testing. R at 227. When Respondent was questioned by Lt. Brown on May 4, 1990, regarding the testing done through Dr. Lee's office, the Respondent thought both the second portion of his April 10, 1990, sample and a new sample taken April 25, 1990, were submitted for testing. R. at 119, 121-122. The second portion of the April 10, 1990, sample had been destroyed because it was old and because the laboratory used by Dr. Lee's office would not accept it. The sample Respondent submitted on April 25, 1990, was sent off for analysis and tested negative. R at 239. The Respondent could have produced a positive test for marijuana use on April 10, 1990, and a negative test for marijuana use on April 25, 1990, if Respondent was only a light user of the drug and had not used marijuana between April 10, 1990, and April 25, 1990. R at 194.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The certification of the Respondent be placed upon probation for two years with the requirement for periodic unannounced drug screening at the Respondent's expense not more than three times per year; and The Respondent be required to advise any employing agency of these proceedings and provide the agency with a copy of the Commission's final order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August 1992. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1. - 2. Adopted. 3. -13. All relate to the Respondent's job performance which was not at issue except as it might indicate drug use. This evidence was inconsistent with the Respondent's personnel evaluations, with the inference in the drug test that drug use was occasional or light, and was a self-serving retrospective. 14.-18. Adopted. 19. Adopted in part rejected in part as irrelevant. 20.-22. Adopted. 23. Rejected. See paragraph 9 of Recommended Order. 24.-35. Adopted. 36. Rejected. 37.-52. Adopted. 53.-55. Rejected as contrary to more credible interpretation of facts. 56.-57. Adopted. 58. Rejected contrary to more credible credence. 59.-61. Adopted. Respondent's Findings of Facts 1.-11 Adopted. 12. Irrelevant. 13.-16. Adopted. COPIES FURNISHED: Gina Cassidy, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Elise M. Matthes, Esquire 412 Larson Building Tallahassee, Florida 32399-0300 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
