The Issue The issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2011.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character and thereby violated section 943.1395(7), Florida Statutes (2008),1/ and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified law enforcement officer, issued law enforcement certificate 233642. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an officer by the Jacksonville Sheriff's Office (JSO). As such, he was subject to random drug screenings as a condition of his employment. On April 23, 2009, Respondent was selected for a random drug screen. He reported to Baptist Occupational Health Clinic (Baptist) in Jacksonville to provide a urine specimen for testing. Respondent gave the specimen by urinating in a previously unused specimen cup provided to him by Heather Walizer, a medical assistant employed by Baptist. Respondent delivered the cup containing his urine to Ms. Walizer, who divided the specimen into two vials. She then capped and sealed the vials, and had Respondent initial each vial and sign the chain of custody form. Ms. Walizer labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 6228701, which would not be used for any other specimen. The vials containing Respondent's urine specimen were sealed with a label that prevented the vials from being opened without breaking the seal. Ms. Walizer packaged the two vials with Respondent's urine specimens in a bag which was also sealed and labeled. Ms. Walizer put the bag with Respondent's urine samples in a refrigerator at Baptist for pick up by a courier to be delivered to Quest Diagnostics (Quest) laboratories in Tucker, Georgia. Upon arrival at Quest, the specimen was assigned a unique laboratory accession number, 842481F, for purposes of drug testing. There is no dispute that the urine sample supplied by Respondent was received by and analyzed by Quest, and that the report generated is for the sample provided by Respondent. Quest maintained the required chain of custody procedures in handling Respondent's specimen. The package received by Quest was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Quest is an immunoassay test used to screen all samples. Any sample that is positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested positive for the cocaine metabolite benzoylecgonine, and was reported at a concentration of 556 nanograms per milliliter. The confirmatory test results were consistent with those obtained for the screening test. The cutoff for a positive result in the immunoassay screening test is 300 nanograms per milliliter. The cutoff for the confirmatory test is 150 nanograms per milliliter. The test results were reviewed by Dr. Liberto Columbo, M.D., the Medical Review Officer for Baptist, who called Respondent and discussed the results of the testing with him. Dr. Columbo reported the results of both tests to Nurse Gerald Shaw of the Jacksonville Sheriff's Office as positive for cocaine. Nurse Shaw notified the JSO Internal Affairs Office of the drug test results, and Respondent was interviewed on April 30, 2009. Respondent vehemently denied, as he did at hearing, the illicit use of cocaine. Respondent was terminated from his position as a law enforcement officer by the JSO. Respondent testified that he did not take cocaine and would not do so. He had taken off work in the days immediately preceding the test to care for his grandchildren while his daughter was delivering her third child. His daughter testified credibly that she would never have left her children in Respondent's care if she believed he was under the influence of cocaine. Respondent suffers from cluster headaches and has done so for several years. He believes that some honey given to him by his daughter, which was purchased overseas, contained coca leaves, and his ingestion of this honey in the weeks before the drug test may have been the basis of finding the benzoylecgonine metabolite in his system. Advertisements for the honey located on the internet represent that it contains coca oil and powdered coca leaves. Respondent went so far as to have the substance analyzed for cocaine metabolites. He also subjected himself to further drug testing, including a fingernail analysis. While the results of the testing and the information related to the product Respondent believes was the source of the positive drug test was not admissible in this proceeding,2/ the undersigned has considered the efforts Respondent undertook to determine whether there could be a source for the positive result other than his illicit use of cocaine. Dr. Columbo acknowledged that there are several commercially-available food products, produced primarily in South America, that contain coca. He testified that those food products include tea and a honey that contains coca oil and powder. Even assuming that Respondent could demonstrate that the honey he ingested would produce a positive result for benzoylecgonine, however, there was no evidence as to what amount of honey he would have to ingest in order to cause a positive drug test, or whether he in fact he did ingest that amount. There was no evidence presented indicating that Respondent has ever been disciplined previously, either by his employer or by the Commission. Further, there is no evidence presented of any impaired behavior by Respondent, or any history of substance abuse. To the contrary, Respondent credibly testified that he has prescriptions for Scheduled II controlled substances to treat his cluster headaches that he has chosen not to fill.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of 60 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 3rd day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2011.
The Issue The issue for determination is whether just cause exists for termination of Respondent’s employment.
Findings Of Fact Respondent is Henry Harrison, an employee of Petitioner for approximately 16-17 years, the last 10 years as a plumber. Respondent’s job performance and competence are not at issue in this proceeding. On June 17, 1998, while operating a vehicle owned by Petitioner, Respondent was the victim of an accident when another driver ran a stop light and “broad-sided” him. Respondent was not at fault. Respondent’s supervisors, including his immediate supervisor, came to the scene of the accident. Respondent did not appear to these people to be under the influence of alcohol or drugs. Respondent worked the remainder of his shift. The next morning, June 18, 1999, Respondent was directed by Petitioner’s personnel to go to the First Physicians Clinic as a result of discomfort experienced by Respondent the night before. Respondent was aware that he would be asked by Clinic personnel to give a urine sample. Respondent waited for approximately two hours at the Clinic, surrounded by other people, where he handled newspapers, magazines and furniture in the common waiting room. Numerous other persons in the facility that morning were there for the purpose of drug testing. At approximately 10:00 a.m. on June 18, 1999, Laura Byrd, an employee of First Physicians, came to the waiting room and summoned Respondent. Respondent followed Byrd to a counter located in a hallway of the facility adjacent to the restroom used for obtaining urine specimens for drug testing. Bryd asked Respondent to sign a drug-testing chain-of-custody form and to initial labels attached to the form which were to be used to seal the specimen container. Respondent complied with Byrd’s request for signature and initialing. The form stated: I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. At the time of his signing and initialing, Respondent had not yet provided a specimen nor observed any subsequent transfer of the specimen or sealing of specimen containers. Following Respondent’s initialing and signing of the forms, Byrd picked up a “clean catch” container utilized at First Physicians for collection of urine specimens during physical exams and directed Respondent to a restroom to provide a sample of his urine. The “clean catch” container was obtained from the counter in the hallway and was not sealed or packaged in any way. Respondent was not directed by Byrd to wash his hands before providing the sample, instead she directed that he was not to turn on any water in the restroom prior to providing his sample. Respondent provided a urine specimen in the “clean catch” container, vacated the restroom and gave the container to Byrd. She attached a small thermometer strip to the container containing Respondent’s urine sample. Byrd noted the temperature of the specimen, placed the container on the counter in the hallway, and directed Respondent to follow her to the examining room. When Respondent told Byrd that he wanted to wash his hands, she told him that he could do this in the examining room. Byrd left Respondent in the examining room where he remained until the physician arrived to assess Respondent’s condition. Respondent never saw his urine specimen again and did not observe it being transferred from the “clean catch” container to any other containers. He did not observe the previously initialed paper seals being affixed to any container. On July 14, 1998, Petitioner received a report from its Medical Review Officer (MRO) stating that Respondent’s urine specimen had tested positive for marijuana. The MRO did not contact Respondent for an explanation, i.e., whether he was taking medication or had any explanation for the positive test result. The MRO, contrary to requirements of Rule 59A- 24.008(7)(a), Florida Administrative Code, did not contact Petitioner with directions that Respondent contact the MRO. Notably, no efforts to contact Respondent was made during the period June 18, 1998, through August 6, 1998, although Respondent was residing in a trailer at a school site providing security services for Petitioner. Additionally, Respondent was in regular contact with Petitioner's personnel in regard to medical treatments he was receiving as a result of his injury. It is undisputed that Petitioner's employees would have known how to get in touch with Respondent to direct him to contact the MRO, had such contact been requested. Instead, Petitioner’s personnel finally notified Respondent of the positive test result on August 6, 1998, when it provided him a notice of proposed disciplinary action. That notice included a copy of the July 14, 1998 drug test report. On August 11, 1998, armed only with the positive test result, Petitioner terminated Respondent’s employment for violation of the Drug-free Workplace policy and use of illegal drugs while on duty. The only evidence of illegal drug use in Petitioner’s possession was the positive test result. No evidence was adduced at the final hearing of any witness observation of Respondent that he had ever been observed exhibiting behaviors suggesting that he was under the influence of, or using, illegal drugs. Respondent’s testimony in total at the final hearing was candid, direct, and creditable. He did not use illegal drugs, specifically marijuana; he and no one in his home or among his social acquaintances to his knowledge used marijuana or any illegal drugs. The drug test results disclosed an extremely low level of cannaboids present (60ng/ML, where the cutoff is 50ng/ML; 28ng/ML, where the cutoff is 15ng/ML on the confirmation test). Byrd, the employee of First Physicians who collected Respondent’s specimen, had no specific recollection at the final hearing of collection of Respondent’s specimen. Instead, Byrd recited the procedure that she normally followed in obtaining drug test specimens. According to Byrd, her regular collection procedure did not include affixing her own initials to the seal placed on the specimen bottles for transport to the laboratory for analysis, nor was she aware of a requirement to do so. Byrd testified that her regular procedure included having the specimen donor sign the chain-of-custody document and initial the specimen seals before the time when the seals are placed on specimen bottles. Following termination and upon legal advice, Respondent sought a voluntary drug test at another collection facility. The results of that drug test from a specimen collected on August 17, 1998, were negative with regard to disclosing the presence of marijuana or any other illegal substance in Respondent’s body. Respondent’s testimony regarding procedures followed at First Physicians was further bolstered by the testimony of another Petitioner employee, Joe McCormick. McCormick had also previously been sent to First Physicians for drug testing by Petitioner in conjunction with an injury he had received on the job. McCormick confirmed that he was treated similarly to Respondent; he was provided a “clean catch” container that he did not observe to come from a sealed package, he was not present when his specimen was transferred from the “clean catch” container to any other vessel for shipment to the laboratory, and he did not observe the paper seals he had earlier initialed being placed on any specimen container. McCormick also was directed and did sign the chain-of-custody form and initial the paper sealing strips prior to providing a urine specimen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Notice Of Disciplinary Action be dismissed and that Respondent be reinstated to his former position without diminution or loss in pay or benefits. DONE AND ENTERED this 15th day of February, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1999. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
