The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 30, 1989, certified as a law enforcement officer in the State of Florida. He holds Law Enforcement Certificate Number 31895. At all times material to the instant case Respondent was employed as a sergeant by the Miami-Dade County Police Department. During his employment, Respondent was a member of the Miami-Dade County Police Department's Tactical Narcotics Team. As a team member, he came into contact with and handled controlled substances, including cocaine, in discharging his duties. Respondent's employment with the Miami-Dade County Police Department was involuntarily terminated after his urine tested positive for cocaine. The test was part of a regularly scheduled biannual physical examination he was required to undergo by the Miami- Dade County Police Department. The examination was conducted the morning of January 24, 2002, at Mount Sinai Medical Center in Miami Beach, Florida. Respondent gave the urine sample that tested positive for cocaine approximately 8:00 a.m. that morning. Respondent had almost a month's advance written notice of the examination. The written notice he received listed "all the tests" he would be given during the examination. Respondent could have requested that the examination be rescheduled (by "go[ing] through [his] station"), but he did not make such a request. The urine sample that Respondent gave as part of the examination was tested and analyzed by Toxicology Testing Service, Inc. (TTS). TTS received Respondent's urine sample "intact" (in two sealed and labeled containers) the afternoon of January 24, 2002. One of the containers was then unsealed and its contents tested and analyzed. The other container was "kept frozen." TTS's initial screening of the contents of the unsealed container indicated the presumptive presence of benzoylecgonine, a metabolite produced when (and only when) cocaine is ingested and metabolized in the body. TTS then performed confirmatory testing using gas chromotography-mass spectrometry analysis. Gas chromotography-mass spectrometry analysis is an exceptionally reliable and accurate method of confirmatory testing.2 The gas chromotography-mass spectrometry analysis, which was done on February 1, 2002, confirmed the presence of benzoylecgonine in Respondent's urine specimen at the level of 575 nanograms per milliter, a result consistent with, and indicative of, Respondent's having ingested cocaine prior to the collection of his urine specimen. There was no umetabolized "parent cocaine" detected in the specimen.3 Neither did testing reveal the presence of cocaethylene (the metabolite formed in most, but not all, persons when cocaine is ingested together with alcohol) or ethyl ecgonine ester (a metabolite which is a "breakdown" product of cocaethylene). It is undisputed that, in conducting its testing and analysis, TTS followed required testing protocol designed to ensure reliable results. The results of TTS's testing and analysis were reported to the Miami-Dade County Police Department. After receiving these results, the Miami-Dade County Police Department commenced an internal affairs investigation of the matter. Lieutenant Cynthia Machanic was assigned the task of heading up the investigation. As part of the investigation, Lieutenant Machanic asked Respondent to give a sworn statement explaining "how he would [have] come to have a positive drug test." Respondent had not at any time knowingly ingested cocaine. He therefore had to resort to speculation and conjecture to provide the explanation Lieutenant Machanic sought. He did not remember having participated on the Tactical Narcotics Team, or having engaged in any other job- related activity, in which he would have come in contact with cocaine, close in time to his January 24, 2002, biannual examination. The "only logical, plausible explanation" he could come up with was that, on the evening of January 22, 2002, while attending a bachelor party for a fellow Miami-Dade County police officer at the Play Pen South, a topless nightclub, one of the dancer's at the nightclub, with whom he had gotten into an argument over payment for a "lap dance," had "put something in [his last] drink [that evening] which caused [him] to test positive for cocaine." He had not seen anyone, including any of the nightclub's dancers, "put anything in [any of his] drink[s]" that evening, but he had left his last drink unattended before consuming its contents and he felt, at the time he was questioned by Lieutenant Machanic, that it was possible that the drink could have been tampered with when out of his sight. This last drink, a 12-ouncce beer, had been his eighth of the evening. In addition to these eight beers, he had consumed four shots of scotch while at the bachelor party. Two dancers and a bartender at the Playpen South also gave statements during the investigative process. Following the completion of the internal affairs investigation Respondent's employment with the Miami-Dade County Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
The Issue The issue is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2011.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by testing positive for a controlled substance, marijuana, as set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Willie B. Ward, is a certified correctional officer in the State of Florida. He was issued Correctional Officer Certificate No. 193831 on October 20, 2000. Respondent was employed by the Highlands County Sheriff's Office as a correctional officer during the period March 6, 2000, through March 13, 2002. On or about April 22, 2002, Respondent was referred for a random drug test. Respondent signed the certification indicating that he provided his urine specimen to the collector; that he had not adulterated it in any manner; that each specimen bottle used was sealed in a tamper-resistant seal in his presence; and that the information provided on the Custody Control Form and on the label affixed to each specimen bottle was correct. The sample was then sent to LabCorp for analysis. It was received with the seal intact. The sample was initially screened at a screening cutoff of 15 nanograms per milliliter. The sample showed positive for cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GC/MS) confirmation testing for a specific marijuana metabolite. The results by LabCorp reflected a positive drug test on the initial screening and the confirmation test. On or about April 25, 2002, the electronic positive result was then sent to the National Medical Review Corporation, along with a faxed copy of the Custody Control Form. Dr. John Eustace, M.D., medical review officer (MRO) for National Medical Review Corporation, provides MRO services to the Highlands County Sheriff's Office pursuant to a contract for a drug-free workplace. Dr. Eustace received the Custody Control Form from LabCorp showing a positive drug test on Respondent for a test taken on April 22, 2002. Dr. Eustace processed the final certification of the Custody Control Form, Copy 4, certifying the drug test as positive. Dr. Eustace requested LabCorp to quantify the amount of the chemical present and document it on a Forensic Drug Analysis Report. LabCorp reported 28 nanograms of cannabinoid. It did not change the positive result; it merely quantified it. The MRO and his assistant then attempted to contact Respondent. They finally made contact with him on May 1, 2002. Respondent indicated he had tested positive a year and a half prior to this test of April 22, 2002. He also stated that he took over-the-counter pain killers, Advil or Aleve. Dr. Eustace stated these medications would not cause a false positive for marijuana. The GC/MS test rules out the possibility of a false positive. The MRO contacted the Human Resources Department of the Highlands County Sheriff's Office to report the positive drug test result after speaking with Respondent. Human Resources then contacted Respondent's supervisor, Captain Hinman, who sent a memo to Sheriff Godwin requesting an investigation. An investigation was opened; Respondent was called in and gave a statement. He had no explanation or mitigation for his positive drug test result. He admitted that he had followed all of the chain of custody procedures and that he had seen the lab technician place the seal on the container. Respondent had a prior positive drug test in April 1999 that was not prosecuted because the confirmation levels were not codified by sheriff's office policy. As a result of the investigation, Respondent was terminated from the Highlands County Sheriff's Office. The evidence is clear and convincing that Respondent tested positive for a controlled substance, marijuana, during a random drug test administered on April 22, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). Respondent's certification be revoked. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie B. Ward 1043 Booker Street Sebring, Florida 33870 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000.
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Valderrama was certified as a law enforcement officer in the State of Florida by the Commission on September 29, 2004, and was issued Law Enforcement Certificate No. 243605. From September 27, 2004, to November 9, 2007, Ms. Valderrama was employed by the Osceola County Sheriff's Office. On or about October 17, 2007, at approximately 1:00 p.m., Ms. Valderrama reported to the Osceola County Sheriff's Office Administration Building for random drug testing pursuant to the terms of her employment and provided a urine sample under controlled conditions. A lab technician was the only other person in the restroom with Ms. Valderrama during the collection process. Ms. Valderrama provided the specimen by urinating in a sterile, previously unused specimen cup, which she subsequently provided to a lab technician who immediately sealed the sample. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered, or adulterated since the initial collection of the urine sample and had remained sealed and maintained in the chain of custody until unsealed by a qualified laboratory personnel at Total Compliance Network, a licensed drug testing laboratory contracted by Florida Hospital Centra Care to conduct random employee drug screens for the Osceola County Sheriff's Office. The laboratory analysis of Ms. Valderrama's urine specimen was found by qualified Quest Diagnostic's laboratory personnel and a Total Compliance Network medical review officer to be positive for Cocaine metabolites in a concentration of 2046 nanograms per milliliter. The minimum level of detection for Cocaine is 150 nanograms per milliliter. On October 27, 2007, Ms. Valderrama discussed her test results with Dr. Seth Portnoy, the licensed medical review officer for Total Compliance Network. Ms. Valderrama could not provide Dr. Portnoy with any medical reason for the positive test result and did not challenge the positive test results. The procedures and methods employed in the handling and analysis of Ms. Valderrama's urine specimen provided reliable safeguards against contamination, a reliable chain-of-custody, and produced, through gas chromatography/mass spectrometry, a reliable, scientifically-accepted measure of the concentration of Cocaine metabolite in the body. The laboratory standards and practices observed in conjunction with the collection, preservation, shipment, handling and analysis of Ms. Valderrama's urine specimen, for the purpose of testing for drugs, were in conformance with the applicable provisions of Florida Administrative Code Chapter 59A-24 and consistent with the requirements for reliability and integrity of the testing process pursuant to Florida Administrative Code Rule 11B-27.00225. Cocaine is rapidly metabolized by the body and can be usually detected for two to three days after ingestion. Because the minimum detection level for Cocaine is 150 nanograms per milliliter and Ms. Valderrama's test results showed a level of 2046 nanograms per milliliter, it was Dr. Portnoy's expert opinion that the tests results were indicative of ingestion of Cocaine. Dr. Portnoy's opinion is credited. Ms. Valderrama had drunk some herbal tea prior to giving her urine sample. She feels that the ingestion of the herbal tea could have resulted in the positive test for Cocaine. There was no expert testimony to establish that the ingestion of the herbal tea would result in the positive drug test. Additionally, based on Dr. Portnoy's credible expert opinion, the metabolite detected in Ms. Valderama's urine could only result from Cocaine. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Vivian Valderrama violated Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking her certification. DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2008.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995.
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2018.
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
