The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration. Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action. In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify. The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated. Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency. Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking. Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator. Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital. On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands. Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse. Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha. On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination. Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment. On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D. Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency. Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system. Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test. Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network. Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha. Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety. Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question. On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine. Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha. Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence. Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine. In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine. Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day. Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/ At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT, 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 20th day of June, 1996.
The Issue The issues in this case are as follows: (1) whether Petitioner has standing to request a formal hearing in this case; and, if so, (2) whether Respondent is in violation of Section 120.54(1), Florida Statutes, for failure to comply with rulemaking requirements with respect to its statements and policies regarding the analysis and approval of the solutions and/or sources of solutions used to test the accuracy of evidentiary breath test instruments utilized in the Implied Consent Program; and (3) whether Rules 11D-8.002(1) and 11D- 8.006(2), Florida Administrative Code, and FDLE/ATP Form 16, which is incorporated by reference, constitute invalid exercises of delegated legislative authority
Findings Of Fact In Florida, it is unlawful to drive or to be in actual physical control of any motor vehicle while under the influence of alcohol beverages when affected to the extent that the person's normal faculties are impaired. Section 316.193(1)(a), Florida Statutes. A person is presumed guilty of driving under the influence (DUI) if the person has a breath alcohol level of 0.08 or more grams of alcohol per 210 liters of breath (g/210L). Section 316.193(1)(c), Florida Statutes. Any person who accepts the privilege of operating a motor vehicle within Florida is deemed to have given consent to submit to a breath test for the purpose of determining the alcohol content of his or her breath if lawfully arrested for DUI. Failure to do so results in the suspension of a person's driver's license and the failure to consent is admissible into evidence in any criminal proceeding. Section 316.1932(1)(a), Florida Statutes. Tests determining the weight of alcohol in a person's breath must be administered in accordance with FDLE's rules. Section 316.1932(1)(f), Florida Statutes. Breath test results are considered valid if performed substantially according to methods approved by FDLE. Section 316.1932(1)(b)(2), Florida Statutes. The results of breath tests administered in accordance with Chapter 316, Florida Statutes, are admissible in any civil or criminal proceeding arising out of acts alleged to have been committed by any person while driving under the influence of alcohol. Section 316.1934(2), Florida Statutes. The Florida Legislature has established certain presumptions and incremental penalties, which are dependent upon the results of breath-alcohol tests administered pursuant to Chapter 316, Florida Statutes. A breath-alcohol level in excess of 0.08 g/210L or higher is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, a person who has a breath-alcohol level of 0.08 or higher is guilty of DUI. Sections 316.1934(2)(c) and 316.193(1)(c), Florida Statutes. A breath-alcohol level of 0.05 g/210L or less creates a presumption that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties ere impaired. Section 316.1934(2)(a), Florida Statutes. If a breath-alcohol level is in excess of 0.05 but less than 0.08, no presumption arises; however, the level may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Section 316.1934(2)(b), Florida Statutes. Persons with breath-alcohol tests of 0.20 g/210L or higher are subject to greater fines and terms of imprisonment than persons with breath-alcohol tests of 0.08 g/210L. Section 316.193(4), Florida Statutes. The penalties for being found guilty of the offense of DUI are set forth in Section 316.193, Florida Statutes. These penalties include fines of $250 to $5,000, terms of imprisonment from six months to one year, and terms of probation and the performance of public service or community work projects. The driver's license of a person who is arrested for a violation of Section 316.193, Florida Statutes, or a person who has refused to submit to a breath test, is suspended, pursuant to Section 316.2615, Florida Statutes. FDLE has adopted Chapter 11D-8, Florida Administrative Code, to implement the statutory Implied Consent Program. The purpose of these rules, in part, is to establish procedures, techniques, approved methods, criteria, and standards to ensure the accuracy and reliability of the evidential breath-testing instruments utilized to test the alcohol content of the breath of persons suspected or charged with DUI. To that extent, FDLE adopted rules specifying the method of breath-testing (infrared), the specific machine approved for evidential use (CMI, Inc. Intoxilyzer 5000 Series), and the criteria by which other manufacturers could receive approval for a different type or model instrument for use in Florida. Rule 11D-8.003, Florida Administrative Code. In order to ensure that individual breath- test results are reliable and accurate, FDLE established rules requiring that each machine be inspected when initially received, when moved to a different agency, and on an annual and a monthly basis. Rules 11D-8.004 and 11D-8.006(1), Florida Administrative Code. An FDLE inspector conducts the annual inspections of the breath-testing machines. A local law enforcement inspector conducts the monthly inspections. In each instance, a simulator solution is used to replicate a human's breath at each of the three statutorily specified alcohol concentrations--0.05 g/210L, 0.08 g/210L, and 0.20 g/210L. The instrument is deemed accurate and reliable, thus remaining in service, if the inspection results fall within the ranges described in Rule 11D-8.002(1). Florida Administrative Code. The ranges set forth in the rule are discussed below. Petitioner resides in Florida and currently possesses a valid Florida driver's license. He typically drives in the state for both personal and business uses. On February 17, 1998, a police officer stopped Petitioner while he was operating a motor vehicle. Petitioner was arrested and, as a result of that arrest, was administered a breath test to determine the amount of alcohol on his breath. Petitioner provided two breath samples indicating a breath- alcohol level of 0.09 g/210L for each sample. Petitioner was charged with the offense of DUI and required to give a cash appearance bond. As a result of his DUI charge, Petitioner's driver's license was administratively suspended for six months. Petitioner did not appear at the administrative hearing on his suspension, and has no knowledge of the arguments made on his behalf for the return of his license. Petitioner received his license back on August 19, 1998. He pled not guilty to the charge of DUI and is currently awaiting his criminal trial on that charge. Petitioner is aware of or believes the following: (1) his breath-test results are a matter of public record; (2) the results of his test may be used against him in a civil suit; (3) the results of his test may be used against him in his upcoming criminal trial for DUI; (4) if he is found guilty of DUI, he could be subject to a fine, probation, and a loss of his driver's license for a period of six months to a year; (5) he will not be able to haul his hotdog cart to work if his license is suspended; (6) he is not guilty and the results of his breath tests are not right. Officer Kenneth Guthrie is employed by the Jacksonville Sheriff's Office as a correctional officer. He has been a certified breath-test operator for approximately two years. Officer Guthrie follows FDLE/ATP Form 23, Operational Procedures Checklist, when he performs a breath test on a subject. He has followed that procedure for every individual that he has tested. Officer Guthrie performed a breath test on Petitioner after he was arrested on February 17, 1998. Officer Guthrie used the Intoxilyzer 5000 Series instrument, serial number 66-002726, to perform this test. Officer Guthrie completed steps one through twelve of the checklist when he performed Petitioner's test. Officer Robert Thomason has been employed by the Jacksonville Sheriff's Office for eight years. Officer Thomason is certified by FDLE to perform the monthly inspections on the Intoxilyzer 5000 Series instruments in the custody of the Jacksonville Sheriff's Office. In performing the monthly inspections, Officer Thomason follows a step-by-step procedure set forth in FDLE/ATP Form 16. The form is adopted by reference in Rule 11D-8.003(7), Florida Administrative Code. Its use is required in Rules 11D-8.004(1) and 11D-8.006(1), Florida Administrative Code. The form requires Officer Thomason to utilize an "approved alcohol reference solution" (ARS) in making his inspections. The form does not define an "approved ARS." Officer Thomason is required to perform five series of tests on each Intoxilyzer 5000 Series instrument using a simulator: (1) one set of tests with distilled water only; (2) one set of tests with three millimeters of acetone; and (3) three sets of tests with ARS at 0.05, 0.08, 0.20 g/210L. Officer Thomason is required to perform three tests with each solution. If any one of the tests using any level of ARS is outside of the ranges set forth in Rule 11D-8.002(1), Florida Administrative Code, Officer Thomason removes the instrument from service. The Jacksonville Sheriff's Office purchases ARS from Guth Laboratories (Guth). Guth produces ARS in lots of 250 gallons and dispenses it in individual bottles containing 500 milliliters. FDLE approves each lot of ARS using the methods and procedures discussed below. Officer Thomason does not perform any test on the ARS prior to its use in the simulator. He does not usually receive anything in writing from FDLE indicating that it has approved a lot of ARS. However, Officer Thomason may request a Certificate of Assurance (COA), discussed below, from FDLE indicating that it has approved the ARS. Typically, the Intoxilyzer 5000 Series instrument is calibrated by a manufacturer's authorized repair facility. FDLE's inspectors are trained to calibrate the instruments, but do not routinely perform that duty. In order to comply with Rule 11D-8.002(1), Florida Administrative Code, the monthly tests of the Intoxilyzer 5000 Series instruments must yield results, which fall within acceptable ranges. "Acceptable range" is defined in the rule as follows: Acceptable Range -- Shall mean the observed values must fall within the following ranges at each alcohol target concentration: 0.05 g/210L range is 0.045 -- 0.055 g/210L; 0.08 g/210L range is 0.075 -- 0.085 g/210L; 0.20 g/210L range is 0.190 -- 0.210 g/210L. Rule 11D-8.002(1), Florida Administrative Code. Officer Thomason performed an agency inspection of the Intoxilyzer 5000 Series instrument at issue here, on February 1, 1998. He used ARS from lot numbers 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, 0.20 g/210L respectively. All of the results of the monthly tests that Officer Thomason performed on the subject instrument on February 1, 1998, were within the requirements of Rules 11D-8.002(1) and 11D-8.006, Florida Administrative Code, to keep the instrument in service. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.049, 0.048, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.081, 0.80, and 0.081 g/210L. The results of the test performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.197, 0.197, and 0.194 g/210L. Officer Thomason performed a second agency inspection of the subject Intoxilyzer 5000 Series instrument on February 27, 1998. Once again he used ARS from lots 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, and 0.20 g/210L respectively. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.050, 0.049, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.079, 0.080, and 0.078 g/210L. The results of these tests performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.198, 0.200, and 0.198 g/210L. When Officer Thomason prepares a simulator with ARS, he pours the ARS from its bottle into a 500-milliliter flask, then pours the contents of the flask into the jar of the simulator. He does not pour the entire bottle into the flask; there is usually a small amount of ARS left in the bottle. In order to calibrate or verify the calibration of an Intoxilyzer 5000 series instrument, the operator must provide a vapor to the instrument to simulate human breath, which includes moisture and an alcohol content. A simulator is a device designed to simulate a person's breath, providing a sample of air to the instrument, which contains the alcohol vapor of a known concentration. The operator places a solution of alcohol into the simulator device. ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature. The ARS is used to assure the accuracy, precision, and reliability of the Intoxilyzer 5000 Series instrument. The simulator device heats the ARS to a temperature of 34 degrees centigrade, plus or minus ("+/-") two degrees. Air is pumped into the bottom of the simulator and bubbled through the ARS, collecting as a vapor above the water. Back pressure is applied to the simulator and the vapor travels from the simulator to the Intoxilyzer 5000 Series instrument, which measures the alcohol content. An ARS containing 0.0605 grams of alcohol per deciliter of water (g/dL) replicates a breath-alcohol level of 0.05 g/210L. An ARS containing 0.0968 g/dL replicates a breath-alcohol level of 0.08 g/210L. An ARS containing 0.2420 g/dL replicates a breath-alcohol level of 0.20 g/210L. The conversion factor for converting g/dL to g/210L is 1.21. For example, 0.0605 g/dL divided by 1.21 equals 0.05 g/210L. Alcohol is completely miscible in water; it mixes in all proportions. When a small amount of ethanol is mixed with a large amount of water, it is readily distributed and becomes homogeneous within a very short time. Once the ARS is mixed, it will stay miscible until some heroic measure is taken to separate the alcohol and water. Alcohol stock solution is concentrated alcohol solution, which must be mixed with a known quantity of water to create ARS. If FDLE did not provide law enforcement agencies with an approved ARS source, it could produce and provide the local agencies with stock solution. As a matter of practice since January of 1997, FDLE no longer prepares alcohol stock solution or provides it to the local agencies. Instead, FDLE arranges for the supply and purchase by all law enforcement agencies of a premixed ARS from an approved source. "Source" means the entity from which the agencies must order ARS. The term "approved source" is not defined in Rule 11D-8.006(2), Florida Administrative Code. FDLE's criteria and standards for the selection of the source include the following: (1) the size of the ARS lots available; (2) standards related to the entity's facilities, personnel, product, manufacturing protocol, quality assurance/control practices, and customer relations with existing accounts; and (3) whether the entity is regulated by the Food and Drug Administration. None of these criteria and standards are included in Rule 11D-8.0006(2), Florida Administrative Code. Selection of the source is an important part of the Alcohol Testing Program (ATP). FDLE is responsible for maintaining the ATP within the state of Florida. Thomas Wood has been employed with FDLE in the ATP since November of 1993. One of Mr. Wood's duties is to determine the known amount of ethanol in the ARS. As stated above, FDLE went through a process to select a source for providing ARS to the local law enforcement agencies. FDLE gave Mr. Wood the responsibility to evaluate potential vendors, and to recommend selection of a vendor for ARS. Based on Mr. Wood's recommendation, FDLE contracted with Guth as the sole source of ARS for the state of Florida. Guth, which is located in Pennsylvania, does not manufacture ARS, but acts as the distributor or vender for ARS manufactured by Steiffel Research Institute, Inc. (Steiffel), which is located in New York. Mr. Wood's selection of Guth as the source was based primarily upon the qualifications of Steiffel. The contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. FDLE has the right to reject any lot that does not meet the contract specifications. If Guth consistently provided lots of ARS that FDLE rejected, the agency could contract with another source. Prior to any lot of ARS being distributed for use by the local agencies, Mr. Wood analyzes each lot to determine if it is in compliance with the department's specifications, using specified procedures, criteria, and standards. Guth supplies the samples for this pre-distribution analysis, ten bottles from each lot. After each lot is distributed to law enforcement agencies, Mr. Wood acquires ten bottles of each lot from various local law enforcement agencies for a post-distribution analysis, using the same procedures, criteria, and standards as the pre- distribution analysis. Each ARS sample in the pre-distribution analysis and the post distribution analysis is analyzed using gas chromatography ("GC"). The ARS used to test the accuracy, precision and reliability of breath-testing instruments in Florida is one of the foundations of the ATP. It is extremely important for the ARS to replicate the target values of 0.05, 0.08, and 0.20 g/210L. The accuracy of the breath-testing machine depends in large part upon the accuracy of the ARS. FDLE has no promulgated rule setting forth the procedures, criteria or standards utilized by FDLE for the approval or rejection of ARS. Companies other than Guth, who wish to become a source of ARS for Florida, would have to contact FDLE to determine the procedures, standards and criteria, which Florida uses to approve ARS. These procedures, standards and criteria are set forth in COAs created and utilized by Mr. Wood. The COAs detail the methodology that he uses to analyze sample bottles from each new lot of ARS. The COAs set forth the criteria, which the samples of ARS must meet before Mr. Wood will approve a lot for use in Florida. The COAs set forth acceptable ranges of alcohol content within which the samples must fall before Mr. Wood approves a lot of ARS. They summarize the data that Mr. Wood collects when he performs a GC analysis of a lot of ARS. The COAs describe FDLE's practice requirement regarding the criteria and specifications for accepting or rejecting each ARS lot. FDLE has followed this practice without deviation since the ATP started in January of 1997. As noted above, ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a "mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature." There is no way to determine what the word "known" means in that definition without reference to the COAs, particularly the ranges of acceptability described therein. The only way to determine the meaning of "known" is to use the process described in the COAs. In fact, the criteria in the COAs are part of the definition of ARS contained in Rule 11D-8.002(8), Florida Administrative Code. Thus, the COAs are very important and necessary in order to determine the meaning of the rule. FDLE approves ARS to replicate a 0.05 g/210L breath- alcohol level if the average test results of that solution fall between 0.0565 g/dL and 0.0645 g/dL, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0605 g/dL is +/- 0.004 g/dL, which yields a 6.6% variation or percentage of error. FDLE approves ARS to replicate a 0.08 g/210L breath- alcohol level if the average test results of that solution fall between 0.0928 g/dL and 0.1008 g/dL of ethanol, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0968 g/dL is +/- 0.004 g/dL, which yields a 4.1% variation or percentage of error. FDLE approves ARS to replicate a 0.20 g/210L breath- alcohol level if the average test results of that solution fall between 0.2320 g/dL and 0.2520 g/dL of ethanol, a range of 0.020 g/dL. The allowed variation around the target ARS concentration of 0.2420 g/dL is +/- 0.010 g/dL, which yields a 4.1% variation or percentage of error. Mr. Wood set the percentage of error for FDLE to accept or reject lots of ARS based on scientifically accepted practice. He set a range that would provide accurate, precise, and reliable results for breath testing in the state of Florida. As stated above, the contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. The selection range in Guth's contract specification is less than FDLE's selection range to better assure that the solution will remain within the department's approval range. There is a difference of opinion within the scientific community regarding the acceptable percentage of error for the alcohol content of ARS that is used to inspect breath-testing machines for accuracy. The National Safety Council, Committee on Alcohol and Other Drugs, recommends the use of a percentage of error of 2%. Dr. Bruce Goldberger, an expert in forensic toxicology, recommends setting the percentage of error for ARS at 3%. Mr. Wood acknowledges that he could have set the percentage of error for ARS provided by Guth and approved by FDLE at 2% or 3%, or whatever he felt was appropriate. If the allowable range of error is too large, and a machine is inspected with an ARS that has an alcohol content at the extreme low-end of that range, an improperly calibrated machine might be approved for use. Nevertheless, the percentages of error that Mr. Wood set for Guth (3%) and FDLE (6.6% and 4.1%) are scientifically reasonable and will not have a significant impact on the validity and reliability of breath-test results. The COAs require ten bottles of a lot of ARS to conduct a GC analysis. Ten bottles are necessary to get a proper sample representation and to permit the rejection of some bottles without invalidating the test results. In preparation for GC analysis, three sub-samples from each simulator solution bottle must be combined in a GC vial. Three vials must be prepared from each ARS bottle. According to the COAs, the GC vial ethanol concentrations from each analyzed simulator solution bottle are averaged to yield an estimated concentration for each bottle. The sample bottles received and the data obtained must meet the following criteria for a lot of simulator solution to be approved for use in Florida: (1) Eight or more of the ten simulator solution bottles received must be suitable for analysis; (2) Two of the three GC autosampler vials must provide an analytical result for each bottle; (3) The difference between any two analytical results for a bottle must be 0.0040g/dL or less for 0.050 and 0.080 g/210L solutions and 0.0100 g/dL or less for 0.20 g/210L solution; (4) Six or more of the analyzed simulator solution bottles must provide an average result; and (5) All average results must fall on or between the ranges set forth above in paragraphs 43-45. When Mr. Wood performs a pre- or post-distribution analysis, he uses a calibrator solution to calibrate the GC. He performs this calibration by injecting a known amount of alcohol into the GC and noting the response. He then injects a different known amount of alcohol into the GC and notes the response. Finally, he constructs a calibration curve, drawing a line through the curve to determine the amount of alcohol for an unknown concentration. To calibrate the GC, Mr. Wood uses reliable known alcohol concentrations from commercial vendors. The solutions meet the standards of the National Institute of Standards and Technology (NIST). The scientific community considers these solutions to be highly accurate. The GC analysis is a very specific, very accurate, precise test to certain limits within a relatively small standard deviation. This means that a GC analysis of 30 vials of an ARS solution will result in slightly different readings of the amount of ethanol content in each vial, even though the actual ethanol content in each vial is the same. Analytical variation is built into the GC measurement process. The GC's ability to make fine distinctions in the amount of alcohol, together with its sensitivity to other testing variables or errors accounts for the range of variation. In a GC analysis, the exact or actual concentration of alcohol in ARS depends upon the limits that are established to make that determination. Determining a mean, which is an average value for a series of tests, and calculating the standard deviation sets the limits. It is possible in the scientific community to obtain exact concentrations of alcohol in ARS. NIST has the ability to make such determinations. The extreme measures taken by NIST cost tens of thousands of dollars. NIST uses a multitude of techniques that are not commonly available. Such extreme measures are not necessary to verify the alcohol content of ARS used to inspect the Intoxilyzer 5000 Series instrument. When the Intoxilyzer 5000 Series instruments are initially placed in service, or subjected to major maintenance, they are calibrated using NIST reference solutions. The purpose of ARS is to verify the calibration of the machines. ARS is not used to calibrate them. The Intoxilyzer 5000 Series instrument has a limit on its ability to measure the alcohol content of a person's breath at any given time. It is not intended to measure exactly a person's breath-alcohol concentration at a specific time; the machine measures a person's breath-alcohol level within a range. In order to ensure the validity of a breath test, Rule 11D- 8.002(16), Florida Administrative Code, states as follows: (16) Breath Alcohol Test -- Shall mean, the analyses of a minimum of two samples of breath collected within fifteen minutes, and the results reported as the alcohol level based upon grams of alcohol per 210 liters of breath. To be acceptable as a valid breath test, the two results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. If the results of the first and second sample are more than +/- 0.020 g/210L apart, a third sample shall be analyzed. To be acceptable as a valid breath test, any two of three results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. In the event the person tested refuses or fails to provide the required number of valid breath samples, than this event shall constitute a refusal. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level. The manufacturer sets the limits of the Intoxilyzer 5000 Series instrument as accurate to +/- 0.005 of a breath- alcohol concentration or 5% of the breath-alcohol concentration, whichever is greater. The manufacturer's specifications are consistent with the limits set by the National Highway Traffic Safety Administration (NHTSA). NHTSA is the federal agency that approves evidential breath-test devices. NHTSA publishes its standards and a list of approved devices in the Federal Register. The definition of "Acceptable Range" set forth in Rule 11D8.002(1), Florida Administrative Code, coincides with the NHTSA standards. During the pre-distribution analysis of ARS lot number 97180, the target value was 0.0605 g/dL. The minimum average observation for any sample bottle was 0.0604 g/dL. The maximum average observation for any sample bottle was 0.0622 g/dL. The mean of the samples was 0.0612 g/dL. During the pre-distribution analysis of ARS lot 97190, the target value was 0.0968 g/dL. The minimum average observation for any sample bottle was 0.0965 g/dl. The maximum average observation for any sample bottle was 0.0980 g/dL. The mean of the samples was 0.0972 g/dL. The difference between the mean concentration and the target concentration of the samples of ARS lot 97190 is +0.0004 g/dL. If one divides 0.0004 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0041 g/dL, which is equivalent to a 0.41% variation from the target concentration. The difference between the average minimum observed concentration and the target concentration of the samples of ARS lot 97190 is 0.0003 g/dL. If one divides 0.0003 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0031 g/dL, which is equivalent to a 0.31% variation from the target concentration. During the pre-distribution analysis of ARS lot 97200, the target value was 0.2420 g/dL. The minimum average observation for any sample bottle was 0.2420 g/dL. The maximum average observation for any sample bottle was 0.2453 g/dL. The mean of the samples was 0.2438 g/dL. If the value of an ARS used to perform a monthly inspection is higher than the target value, the results of the Intoxilyzer 5000 Series instrument could be less than the range of accuracy of the instrument. The sampling methodology set forth in the COAs provides for the averaging of sample results. An individual sample could result in a GC measurement of alcohol content below the lowest average value of the range established by the COAs. For example, the COA for ARS with an alcohol content of 0.08 g/210L allows a lot to be approved if one or more of the individual samples measure as low as 0.0908 g/dL on the GC. This is true even though the lowest average limit of the range is stated as 0.0928 g/dL. Dividing 0.0908 g/dL by the conversion factor of 1.21 results in a quotient equivalent to 0.075g/210L. If a machine is inspected with ARS containing a 0.075 g/210L concentration of ARS and if the machine provides a result of 0.085 g/210L, the machine is deemed acceptable and reliable under the provisions of Rule 11D-8.002(1), Florida Administrative Code. If a person with an actual breath-alcohol content of 0.070 g/210L was tested on that machine, his or her breath-test result would be 0.08 g/210L. In theory, this same logic would apply to all three ARS alcohol concentration levels. However, there is no evidence that a person with an actual breath-alcohol of 0.070 g/210L ever produced a breath-test result of 0.08 g/210L under these circumstances. There is only a very remote possibility that this type of scenario could occur.1 In fact, Petitioner produced a breath-alcohol reading of 0.09 g/210L; therefore, the actual content of alcohol in his breath could not have been lower than 0.08 g/210L. Absent the effects of averaging the samples described above, an ARS meeting the lowest value of the acceptable ranges set forth in the COA, when used on a high-reading machine, could produce results which exceed the ranges for machine accuracy set forth in Rule 11D-8.002(1), Florida Administrative Code. For example, the lowest stated value of the acceptable range in the COA for 0.08 g/210L simulator solution is 0.0928 g/dL, which equates to 0.077 g/210L. If that ARS produces a result of 0.085 g/210L on a high reading machine, there is a variation of 0.008 g/210L, while the machine range rule allows a variation of only a plus or minus 0.005 g/210L. To that extent, the standards and criteria set forth in the COA could produce results that exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. Under these circumstances, a person with an actual breath-alcohol level of 0.077 g/210L could receive a breath-test result of 0.085 g/210L. Such an occurrence is only a remote possibility. There is no evidence that an ARS has been responsible for producing such results.2 Moreover, Petitioner's breath-test result of 0.09 g/210L under these facts would mean that his actual breath-alcohol level was 0.082 g/210L. The facts of this case are clearly different from the facts set forth in paragraphs 68 and 69. Under no circumstances is Petitioner the victim of a worst case scenario like the ones described above. There is no evidence that the machine used to test his breath-alcohol level was improperly calibrated, yielding breath-alcohol readings of 0.08 g/210L or higher when his actual breath-alcohol was below that level. There is no evidence that the ARS used to inspect that machine had an alcohol content at a sufficiently low level of the acceptable range for 0.08 g/210L simulator solution to result in a reading of 0.08 g/210L or higher when the actual breath-alcohol was below that level. The highest Intoxilyzer 5000 Series instrument reading using ARS lots 97180, 97190, and 97200, and therefore in the best light of the Petitioner, were 0.050, 0.81, and 0.200 g/210L respectively. The mean values of the ARS were 0.0612, 0.0972, and 0.2438 g/dL, respectively. Using the mean values of the ARS, the highest actual machine readings, and a recorded breath-test result of 0.09 g/210L, the actual breath-alcohol level to achieve that result would be 0.091, 0.089, and 0.091 g/210L respectively. Using the minimum observed average levels of the ARS at each level and the highest actual machine readings, the results are clear. The minimum observed average values of the ARS were 0.0604, 0.0965, and 0.2429 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.090, 0.089, and 0.090 g/210L. One does not arrive at a different result using the lowest individual sample values at each level and the highest actual machine readings. The lowest individual sample values of ARS were 0.0602, 0.0960, and 0.2421 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.0898, 0.0883, and 0.0901 g/210L. The result is the same when one uses the lowest individual sample values at each level (0.0602, 0.0960, and 0.2421 g/dL) and the highest possible machine readings (0.055, 0.085, and 0.210 g/210L. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.084, 0.0843, and 0.0809 g/210L. Similarly, the facts of this case do not indicate that the GC analysis of ARS lot 97190 yielded results for 0.08 g/210L simulator solution which exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. According to the COA, the lowest average value for that solution is 0.0928 g/dL, which converts to 0.0767 g/210L. The highest actual machine reading, and therefore in the best light of Petitioner, was 0.081 g/210L. The difference between 0.0767 g/210L and 0.081 g/210L is 0.0043 g/210L, which is well within the rule's allowable range of .005 g/210L. The same holds true when one uses the value for the lowest individual sample in ARS lot 97190 and the highest actual machine reading. The lowest individual sample was 0.0960 g/dL, which converts to 0.0793 g/210L. The highest actual machine reading was 0.081 g/210. The difference between the two is 0.0017 g/210L, which is less than 0.005 g/210L. The results are no different when the same calculations are performed for ARS lots 97180 and 97200.
The Issue The issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa, should be disciplined because of the matters alleged in the Administrative Action filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state. By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him. Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division. The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store. The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out. On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale. When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons. Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this. When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages. In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996. The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder. Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules. Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler. Mr. Davison worked for the Respondent for approximately 16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time. On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio, the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given. Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one. As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back. Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected. Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet. Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough. Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted. Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training. According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants. Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best. Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers. When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller at the Division to see what could be done and implemented everything Miller suggested. When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred. When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month. Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful. Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards. With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective. An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location. Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler. Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video. After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification. The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training. Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long 601 Bayshore Boulevard, Suite 700 Tampa, Florida 33606 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue in this case is whether Florida Administrative Code rules cited herein are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioners are defendants in "driving under the influence" (DUI) criminal prosecutions pending in Palm Beach County. The "Intoxilyzer 8000" is an alcohol breath testing instrument manufactured by "CMI, Inc." (CMI). Each of the Petitioners was arrested and charged with DUI after having submitted to an alcohol breath test on an Intoxilyzer 8000 instrument. The State of Florida intends to utilize the results of the breath tests in prosecuting the charges filed against the Petitioners. The Respondent's Alcohol Testing Program (ATP) is responsible for the operation, inspection and registration of alcohol breath testing instruments used for purposes of DUI prosecutions in Florida. Section 316.1932(1)(a)2., Florida Statutes, provides as follows: The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program is responsible for the regulation of the individuals who operate, inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program is further responsible for the regulation of blood analysts who conduct blood testing to be utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program shall: Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors, instructors, blood analysts, and instruments. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts, and instruments. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators, agency inspectors, instructors, blood analysts, and instruments. Establish uniform requirements for instruction and curricula for the operation and inspection of approved instruments. Have the authority to specify one approved curriculum for the operation and inspection of approved instruments. Establish a procedure for the approval of breath test operator and agency inspector classes. Have the authority to approve or disapprove breath test instruments and accompanying paraphernalia for use pursuant to the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. With the approval of the executive director of the Department of Law Enforcement, make and enter into contracts and agreements with other agencies, organizations, associations, corporations, individuals, or federal agencies as are necessary, expedient, or incidental to the performance of duties. Issue final orders which include findings of fact and conclusions of law and which constitute final agency action for the purpose of chapter 120. Enforce compliance with the provisions of this section through civil or administrative proceedings. Make recommendations concerning any matter within the purview of this section, this chapter, chapter 322, or chapter 327. Promulgate rules for the administration and implementation of this section, including definitions of terms. Consult and cooperate with other entities for the purpose of implementing the mandates of this section. Have the authority to approve the type of blood test utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. Have the authority to specify techniques and methods for breath alcohol testing and blood testing utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. Have the authority to approve repair facilities for the approved breath test instruments, including the authority to set criteria for approval. Nothing in this section shall be construed to supersede provisions in this chapter and chapters 322 and 327. The specifications in this section are derived from the power and authority previously and currently possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of chapter 99-379, Laws of Florida. The U.S. Department of Transportation maintains a "Conforming Products List of Evidential Breath Measurement Devices" (CPL) identifying various alcohol breath testing instruments that ostensibly meet applicable federal regulations. Pursuant to FDLE/ATP Form 34, incorporated by reference in rule 11D-8.017, the only alcohol breath test instruments that may be evaluated for use in Florida are those included on the CPL. On November 26, 2001, the Respondent received notice that the Intoxilyzer 8000 met applicable requirements of the National Highway Traffic Safety Administration's model specifications for evidentiary alcohol breath testers and that the instrument was expected to be on the next published CPL. Thereafter, the Respondent began to review the instrument's suitability for use in Florida. The Respondent's evaluation was governed by the versions of rule 11D–8.003(4) and Form 34 in effect at that time. To the extent that the Petitioners' challenge is to specific rule requirements that have been deleted or superseded, such a challenge is outside the scope of this proceeding. In April 2002, the Respondent began testing the operation of two Intoxilyzer 8000 instruments received from CMI (serial numbers 80–00208 and 80–00209), but the tests were not completed due to software issues. In May 2002, the Respondent resumed testing the same two instruments, software malfunctions apparently having been resolved. One of the instruments (serial number 80–00208) successfully completed the testing process. An electrical problem halted the testing of the second instrument (serial number 80–00209). On October 3, 2002, the CPL that included the Intoxilyzer 8000 was published in the Federal Register (Vol. 67, No. 192). On November 5, 2002, the Respondent adopted rule 11D-8.003(2) identifying the Intoxilyzer 8000 as an approved alcohol breath test instrument. The rule currently provides as follows: Approval of Breath Test Methods and Instruments. The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. The Department has approved the following breath test instrumentation for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series--including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34--Rev. March 2004. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument. The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34--Rev. March 2004. The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. (emphasis added). Although the Respondent had approved the Intoxilyzer 8000 through the rule, it was not placed into service because development of Florida-specific software had not been completed at the time the rule was adopted. The Exhaust Purge Valve In August 2004, several of the Respondent's employees, including Inspectors Matthew Malhiot and Roger Skipper, traveled to the Kentucky headquarters of CMI to participate in development of software specifically applicable to the Intoxilyzer 8000 instruments that would be placed into service in Florida. CMI was in the process of testing a Florida-specific Intoxilyzer 8000 at the time of the trip. The instrument was being subjected to tests using gas samples containing known alcohol concentrations. The reports produced by the instrument were inaccurate, with the alcohol levels being underreported by the instrument. The Respondent's employees Malhiot and Skipper were aware of the issue and CMI's attempts to identify and remedy the cause of the inaccurate reporting. CMI implemented a variety of alterations to the instrument, changing out various hoses and connectors, and drilling a small hole through the instrument's "exhaust purge valve." The instrument eventually produced reports that accurately reflected the gas samples being used in the tests. Based on the CMI tests, the version of the Intoxilyzer 8000 placed into service in Florida includes a hole drilled into the exhaust purge valve. The decision to drill the hole was made by a CMI engineer. There was no evidence presented at the hearing as to the rationale underlying the engineer's decision to drill the hole. The exhaust purge valve is a mechanism utilized only during simulation testing and is not involved in actual alcohol breath testing as would be performed on someone suspected of DUI. The evidence is insufficient to establish that CMI's drilling of the hole in the exhaust purge valve caused the instrument to produce the expected results when tests were performed with gas samples of known alcohol levels. The Respondent has subsequently conducted tests to compare the operation of an Intoxilyzer 8000 with a hole drilled through its exhaust purge valve and the operation of an Intoxilyzer 8000 with an intact exhaust purge valve, and has found both instruments to perform accurately. The evidence fails to establish that breath test results are affected in any manner by the exhaust purge valve, whether or not there is a hole drilled through the valve. The Petitioners have asserted that the Respondent's "failure" to "re-approve" the Intoxilyzer 8000 after the hole was drilled in 2004, constitutes an invalid exercise of delegated legislative authority. The evidence does not establish that such a process was authorized or required by statute. An administrative rule in effect at the time of the April 2004 tests required that the manufacturer provide written notice to the Respondent as to "modifications" of approved devices. CMI did not provide the Respondent with written notice of the hole being drilled in the exhaust purge valve. Despite the lack of written notice, the Respondent was well aware of the drilled hole. The Respondent's employees Malhiot and Skipper both were present at CMI headquarters during the testing and were aware of the CMI engineer's decision to drill the hole. Laura Barfield, the manager of the ATP, was notified by a telephone call from Mr. Skipper that CMI had drilled the hole in the exhaust purge valve. In December 2004, the Respondent's rules were revised to delete the requirement that notice of written modification of approved instruments be provided to the Respondent. The Petitioners have asserted that the 2004 deletion of the required notification from the rule was an invalid exercise of delegated legislative authority. The assertion is outside the jurisdiction of this proceeding, which is limited to a determination as to whether the Respondent's currently existing rules constitute an invalid exercise of delegated legislative authority. In March 2006, the Respondent approved the Intoxilyzer 8000 for evidentiary breath testing usage in the State of Florida. An update to the software programmed into the instruments occurred in October 2006. The Petitioners have noted that case law has held modifications to the Intoxilyzer 8000 to render the test results unreliable. The Petitioners assert that, accordingly, the instrument should have been subjected anew to the approval process after a hole was drilled in the exhaust purge valve. On at least two occasions, local law enforcement agencies altered specific Intoxilyzer 8000 instruments after the Respondent had approved the specific instruments for use in evidentiary breath testing in 2006. Test results from such altered instruments have been determined by the courts to lack scientific reliability. The evidence fails to establish that local law enforcement agency alterations of individual Intoxilyzer 8000 instruments renders the Intoxilyzer 8000 model, as approved by the Respondent and placed into service in 2006, unreliable for its intended use when breath alcohol tests are properly administered by trained operators. The Petitioners' assertion that CMI's drilling of the hole in the exhaust purge valve requires that the Intoxilyzer 8000 be removed from the U.S. Department of Transportation's CPL is outside the jurisdiction of this proceeding. The Flow Sensor In order to obtain a scientifically reliable breath test result, a test subject must provide a continuous sample of "deep lung air" through the breath test instrument. A "flow sensor" in the instrument monitors the flow of lung air through the instrument and signals a constant "tone" when the air pressure being generated by a test subject is sufficient to provide an adequate breath sample. Pursuant to section 316.1932(1)(a)2., cited above, the Respondent is responsible for the curriculum used to train the local agency inspectors, as well as operators of the breath test instruments. The curriculum states that "a minimum acceptable record sample is defined as a breath sample that has met the minimum criteria of the instrument's analysis to ensure that the breath sample is reliable, including that the subject must provide a continuous breath sample of at least 1.1 liters of breath." Prior to use of a specific breath test machine by a local law enforcement agency for evidentiary purposes, the actual instrument must be inspected by, and registered with, the Respondent, pursuant to rule 11D-8.004, which provides as follows: Department Inspection and Registration of Breath Test Instruments. The Department shall register and inspect a breath test instrument prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates the instrument's approval for evidentiary use, and the registration denotes an instrument approved pursuant to these rules and shall reflect the registration date, the owner of the instrument, the instrument serial number, the manufacturer, and the model designation. Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use. Department inspections shall be conducted in accordance with Department Inspection Procedures FDLE/ATP Form 35--Rev. August 2005 for the Intoxilyzer 5000 Series, or Department Inspection Procedures-- Intoxilyzer 8000 FDLE/ATP Form 36--Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 26-- Department Inspection Report--Rev. March 2004 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 41--Department Inspection Report--Intoxilyzer 8000--Rev. August 2005 for the Intoxilyzer 8000. Department Inspectors shall be employed by the Department to register evidentiary breath test instruments, to conduct inspections and maintenance of breath test instruments and related equipment and facilities, to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8, F.A.C. (emphasis added). Each instrument is also inspected on a monthly basis by a local agency inspector pursuant to rule 11D-8.006, which provides in relevant part as follows: Agency Inspection of Breath Test Instruments. (1) Evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month. The agency inspection shall be conducted in accordance with Agency Inspection Procedures FDLE/ATP Form 16--Rev. March 2004 for the Intoxilyzer--5000 Series, or Agency Inspection Procedures--Intoxilyzer 8000 FDLE/ATP Form 39--Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 24--Agency Inspection Report--Rev. March 2001 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 40--Agency Inspection Report--Intoxilyzer 8000-- March 2004 for the Intoxilyzer 8000. * * * (3) Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection. The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use. (emphasis added). Flow sensor testing and calibration during an inspection is not specifically required by statute or rule. The Petitioners have asserted that the challenged rules are vague and fail to establish adequate standards for agency decisions because they do not require calibration of flow sensors during inspections. The evidence fails to establish that the absence of a specific rule requirement that flow sensors be calibrated renders the rules an invalid exercise of delegated legislative authority. The Respondent currently tests and, if necessary, recalibrates flow sensors as part of a quality control process during an annual inspection performed on each instrument being used in Florida in evidentiary breath testing. The Respondent developed the current method by which flow sensors are examined. Examination of flow sensors requires specialized equipment that is not presently available to local agency inspectors. The evidence is insufficient to establish that the scientific reliability of reported breath test results is related to the function of an instrument's flow sensor. The evidence establishes that the instrument will not report results of a breath alcohol test if the quantity of air provided by a test subject is insufficient.
Findings Of Fact Petitioners are defendants in criminal cases presently pending in Lee County, Florida, having each been charged with the offense of driving while under the influence of an alcoholic beverage. Subsequent to their arrests, they took a breathalyzer test on a CMI Intoxilyzer, Model 4011AS, and have been informed that the prosecution intends to introduce evidence derived from these tests at their trials. Respondent has adopted Rules 10D-42.22, 42.23, and 42.24, Florida Administrative Code, under the authority of Sections 316.1932(1)(b)1, 316.1934(3), 327.352(1)(d) and 327.354(3), Florida Statutes (1984 Supp.) Rules 10D-42.22 and 42.23 provide as follows: 10D-42.22 Chemical Breath Testing Methods - Approval. Chemical breath testing methods for determining blood alcohol content shall be approved by the Department, based on scientific principles which will establish performance requirements and methods for evidential breath testing. Evidential breath testing involves methods which measure the alcohol content of deep lung samples of breath with sufficient accuracy for evidential purposes. . . and for which instructors have been trained as stipulated in 10D-42.27. 10D-42.23 Registration - Chemical Test Instruments or Devices. All chemical breath test instruments or devices used for breath testing under provisions of Chapter 316 and 327, Florida Statutes, shall be previously checked, approved for proper calibration and performance, and registered by authorized personnel of the department, by trade name, model number, serial number and location, on forms provided by the Department. All such chemical test instruments or devices registered hereunder shall be checked at least once each calendar year (January 1 through December 31) for accuracy and reproducibility. Rule 10D-42.24 specifies the operational and preventive maintenance procedures for approved chemical breath testing instruments enumerated therein including the CMI Intoxilyzer, Model 4011AS. Before approving a chemical breath testing instrument and including it in Rule 10D-42.24, Respondent conducts a series of tests on a sample instrument provided by the manufacturer. These tests include vapor and acetone tests as well as blood breath correlations. The purpose of these tests is to determine if the instrument gives a reliable measurement of blood alcohol levels based on deep lung samples of breath. All manufacture_s and all states use a ratio of 2100 to 1 in calibrating these instruments. That is, the level of alcohol in the lungs as measured by the instrument is multiplied by 2100 to derive the blood alcohol content level. If the instrument proves reliable in determining a known blood alcohol level within acceptable tolerance levels it is added to the approved list. After an instrument is added to the approved list, each individual device must also be tested by Respondent before it can be used in this state for evidentiary purposes. The purpose of these tests is to exactly calibrate each device since there is usually a slight variation between devices from the 2100 to 1 general ratio. Required monthly preventive maintenance and annual inspection of each device insures that the specific calibration for the device is maintained, or corrected if necessary. Operators of these devices must complete a forty hour training program and also an annual six hour requalification course. Respondent's rules do not set forth or require the use of this 2100 to 1 ratio in the calibration process. However, since this is the calibration ratio used by manufacturers, Respondent does test that ratio and make adjustments in individual instrument calibrations, when necessary. The accuracy of blood alcohol level measurements obtained by using these instruments can be affected by factors such as a person's body weight and composition, individual absorption and elimination rates, the time the measurement is made in relation to the time when the person was driving, and the time elapsed since alcohol was consumed. However, by using estimates such as the "elimination rate" of a person and extrapolating back to the time of driving from the time the test is administered, blood alcohol levels which existed while driving can be estimated.
The Issue The issue for determination is whether the nursing license of Alice M. Thomas Lofton should be disciplined for violations of Section 464.018(1)(f) and (h), F.S., by reporting to duty under the influence of alcohol.
Findings Of Fact Alice M. Thomas Lofton is now, and was at all times relevant in this proceeding, licensed as a registered nurse in Florida under license number 59769-2. In September 1985, Ms. Lofton was employed as a staff nurse at Tampa General Hospital. On September 15, 1985, she reported for duty smelling of alcohol and unsteady on her feet. Her speech was slow, deliberate and slurred and she was observed to have difficulty in taking a patient's blood pressure. She appeared to be intoxicated. When confronted by her supervisor, Ms. Lofton voluntarily submitted to a blood and urine test. The blood-alcohol test was returned with the result of .14 percent (.141 gm/dl). Ms. Lofton was sent home. She was subsequently given an opportunity to keep her job if she would participate in and follow the recommendations of the employee assistance program at Tampa General Hospital. She agreed to participate but did not comply with the counselor's recommendations, so she was terminated. It is both unprofessional and unsafe for a nurse to practice while under the influence of alcohol. Alice Lofton was a longtime employee of Tampa General Hospital. She had been an assistant head nurse for four and a half years. She admitted that at one time she thought she had a drinking problem and was once admitted to the emergency room under the influence of alcohol. No evidence was presented of other disciplinary actions regarding Ms. Lofton's license or regarding her employment as a registered nurse. No evidence was presented that a patient was harmed or that Ms. Lofton, except for her intoxicated appearance at work, ever failed to conform to minimal standards of acceptable prevailing nursing practice. Ms. Lofton claimed that the incident was the result of a conspiracy against her because she had asked for a transfer when her supervisors really needed her and wanted her to stay. The claim was inherently contradictory and was unsubstantiated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a final order be entered finding Alice M. Thomas Lofton guilty of a violation of Subsections 464.018(1)(f) and (h), F.S., and suspending her license for a period of 30 days and thereafter until she can demonstrate her ability to practice nursing safely. The demonstration should include a physical or psychological examination to determine whether she has an alcoholism problem requiring treatment, and, if so, continued probation is recommended to insure that such treatment is obtained. DONE and RECOMMENDED this 17th day of December 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December 1986. COPIES FURNISHED: William M. Furlow, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Alice T. Lofton 2703 Spruce Street Tampa, Florida 38687 Judie Ritter Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issue in the case is whether certain forms related to inspection and operation of breath test instruments, and which are incorporated by reference into various rules adopted by the Florida Department of Law Enforcement (Respondent), must be published in their entirety in the Florida Administrative Weekly during the rule adoption process.
Findings Of Fact Each of the Petitioners has been arrested and charged with driving under the influence (DUI) in violation of Section 316.193, Florida Statutes (2005). The DUI cases are currently pending. The Respondent is the state agency charged with adoption of rules related to operation of the alcohol testing program, including certification and operation of breath test instruments. Apparently during the arrest process, the Petitioners were administered breath tests using instruments identified as Intoxilyzer breath machines. The machines were allegedly maintained, and the tests administered, pursuant to requirements set forth on various forms incorporated by reference into rules adopted by the Respondent under the provisions of Subsection 316.1932(1)(a)2., Florida Statutes (2005). Florida Administrative Code Chapter 11D-8 sets forth rules applicable to the "Implied Consent Program," including rules related to breath testing administered to persons suspected of DUI. Florida Administrative Code Rule 11D-8.017 includes a list of forms referenced within Chapter 11D-8, which are "hereby incorporated by reference." Florida Administrative Code Rule 11D-8.017 states that all of the incorporated forms could "be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302." Insofar as is relevant to this proceeding, the incorporated forms are as follows: FDLE/ATP Form 14 – Breath Test Result Affidavit – Revised March 2002. FDLE/ATP Form 16 – Agency Inspection Procedures – Revised March 2004. FDLE/ATP Form 24 – Agency Inspection Report – Revised March 2001 FDLE/ATP Form 34 – Instrument Evaluation Procedures – Revised March 2004. FDLE/ATP Form 35 – Department Inspection Procedures – Revised March 2004. FDLE/ATP Form 14 is titled "Breath Test Result Affidavit" and sets forth a series of 16 steps to be followed by a breath test operator in administering a breath test. FDLE/ATP Form 16 is titled "Agency Inspection Procedures" and sets forth a series of 12 steps to be followed in cleaning and testing a breath machine. FDLE/ATP Form 24 is titled "Agency Inspection Report" and is a form to be used by a permitted inspector to report machine inspection results to the Department of Highway Safety and Motor Vehicles. FDLE/ATP Form 34 is titled "Instrument Evaluation Procedures" and sets forth the factors to be considered in evaluating breath testing equipment for approval for use in Florida. FDLE/ATP Form 35 is titled "Department Inspection Procedures" and sets forth a series of 11 steps to be followed in cleaning and testing a breath machine. The Respondent has not published the full text of the cited forms in the Florida Administrative Weekly at any time during the adoption, or subsequent amendment and re-adoption, of Florida Administrative Code Chapter 11D-8. In the Petitioners' DUI cases, the State of Florida is seeking to present evidence of compliance with the rules and forms adopted by the Respondent related to maintenance of the machines and administration of the tests. The Petitioners assert that the rules and forms were improperly adopted and, therefore, are invalid. The Petitioners are substantially affected by the rules and forms at issue in this proceeding. There is no evidence that the Respondent was informed by the Department of State or the Administrative Procedures Committee during the rule adoption process that the process utilized in adopting the referenced rule was improper. There is no evidence that the rules have not been readopted as necessary to accommodate revisions to the forms.
