The Issue Whether or not Respondent is guilty of violating Sections 943.1395(5) and (6) and Section 943.13(7) F.S. and Rule 11B-27.0011(4) (a) F.A.C. so as to subject his certification to discipline by the Criminal Justice Standards and Training Commission.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on March 26, 1976 and holds Certificate No. 02-16273. At all times material hereto, he has been a certified law enforcement officer in the State of Florida. At the request of the Putnam County Sheriff's Department, the Florida Department of Law Enforcement (FDLE) conducted an independent investigation into suspicions and allegations that Respondent, a Putnam County Deputy Sheriff, had knowingly and unlawfully as a public servant requested, solicited, accepted, or agreed to accept pecuniary or other benefits not authorized by law, for performance or non- performance or an act or omission of an act within Respondent's discretion as a law enforcement officer or in violation of his public duty. Specifically, the Sheriff had a tip or a rumor to the effect that the Respondent had failed to enforce Chapter 893, "The Florida Comprehensive Drug Abuse Prevention and Control Act," for pecuniary compensation or other benefit and that the Respondent did unlawfully agree, conspire, combine or confederate with Franklin Kaymore and others to commit the crime of "unlawful sale or delivery of, or unlawful possession with intent to sell or deliver cocaine" at some unspecified time or times between May 1, 1985 and December 20, 1985. The FDLE investigation was spearheaded by Special Agent Jimmie Collins and focused on Franklin Kaymore, a dealer in narcotics in Palatka, Putnam County. When approached by Collins' confidential informer (CI), Kaymore told the CI to get away from him. Investigator Collins made two cognitive leaps of faith based on this reaction of Kaymore's: First, that Kaymore knew the CI was associated with law enforcement, and second, that Respondent or another "leak" in the Putnam County Sheriff's Department had tipped off Kaymore to the drug investigation and to the CI's true identity as a "narc." However, there is no direct evidence to support either of Collins' inferences. The initial tipster concerning both Kaymore and Respondent as conspiring to sell or deliver drugs and concerning Kaymore paying Respondent not to enforce Florida drug laws was one Waddell Johnson, and Collins conceded that Waddell Johnson had admitted at their initial interview that it had been Respondent who had arrested him and Kaymore had given evidence to convict him or at least had not been prosecuted for Johnson's and Kaymore's joint offense. (See Finding of Fact 9, infra.) Collins further conceded that Waddell Johnson, two members of the Putnam County Sheriff's Office, and Collins' Palatka Police Department contact could have "leaked" information on his investigation as easily or more easily than Respondent. Collins' investigation revealed nothing to involve Respondent with Kaymore's drug dealing money, and Collins never recovered any unlawful contraband or money or specific benefits that could be shown to have flowed from Kaymore to Respondent. Kaymore testified that he actually got his information concerning drug enforcement from some of his own street salesmen of drugs who were doubling as police "snitches." Franklin Kaymore, the admitted drug dealer, now incarcerated on fraud and forgery charges, had been a neighborhood acquaintance of Respondent in Palatka, Florida, for approximately 20 years. Throughout this period of time, Kaymore was one of those community characters without visible steady employment but who always had money to spend or to loan to others. Many people borrowed money from him over the years, including Respondent. For years, Kaymore's employments were transient and unsteady but existed sporadically, and he was known in the community to be a proficient and extraordinarily successful dog track gambler, pool hustler and crap shooter. Presumably, he also collected interest on his various loans. Occasional legitimate jobs in demolition, electronics installation, and migrant labor and in the foregoing borderline activities camouflaged Kaymore's true income sources, but he was also widely rumored to be dealing in illicit drugs. At some point in 1984 or 1985, Kaymore "took up" with Celestine Cross a/k/a Lisa Cross, the Respondent's goddaughter. This brought Kaymore and Respondent into a much closer relationship than before. On one occasion, the Respondent and his wife visited Kaymore because their goddaughter had moved in with him, and in Respondent's presence, Kaymore denied a point-blank question from Respondent's wife as to whether or not he was dealing drugs. By the time in 1985 that the whole of Kaymore's income was derived from drug dealing, he and Respondent's goddaughter were openly living together in a new house, rented from Respondent's cousin. Respondent and his wife helped them move and settle in, and Respondent then often visited in their home. Kaymore testified that he warned his drug customers and street salesmen not to come to his house when they saw the Sheriff's car which Respondent drove or Respondent's wife's car in his driveway; that he "always have had respect for [Respondent about] doing my business" and did his drug sales out of Respondent's sight; and that he often sent potential drug customers to his street operatives just to keep them away from his house. On the other hand, Kaymore assumed that although Respondent never saw money or "boosted," i.e., stolen, goods exchanged to Kaymore for drugs, Respondent "must have known" Kaymore was selling and trading for drugs. Therefore, after he was "busted" in 1986, in his quest for a "deal," Kaymore expressed this latter opinion to law enforcement officers in the course of negotiating his and "Lisa's" plea bargain. In 1985, Respondent had borrowed approximately $300-$400 from Kaymore, and Respondent's wife accepted some dresses as a gift from Kaymore. The details of the loan or its repayment, if any, are not in evidence, but there is also no evidence that Respondent did anything or refrained from doing anything either personally or in his official capacity as a law enforcement officer in order to get the loan from Kaymore. Kaymore had also previously loaned Respondent money before Respondent entered law enforcement and before Kaymore began to deal drugs for a living. Kaymore categorically denied that Respondent ever offered him protection or threatened prosecution in exchange for the loan in 1985. The only inference possible from all the evidence is that the dresses were "boosted" by one of Kaymore's drug customers, were accepted by Kaymore in exchange for drugs, and were then passed off by Kaymore to Respondent's wife because the dresses were not "Lisa's" size. However, there is insufficient credible evidence to show that either Respondent or his wife could be certain of the origin of these dresses. On one occasion, Kaymore bought a stolen cassette player from Waddell Johnson. Kaymore assumed the cassette player was stolen because Johnson delivered it to Kaymore in the original Sears box with all its original paperwork. When Respondent came to Kaymore's house and viewed the cassette player, he told Kaymore that it was stolen and later returned with a detective. After questioning Kaymore, Respondent and the detective impounded the stolen cassette player and told Kaymore he would have to be a witness against Johnson. Apparently, Kaymore admitted he knew the cassette player was stolen, and the detective, not Respondent, made a deal for his testimony against Waddell Johnson. Kaymore was not charged or prosecuted, and he did not have to testify, but there is no evidence Respondent had anything to do with that result. Willie Johnson, a former runner and drug customer of Kaymore's during the period of time material to these proceedings, also was once arrested by Respondent. In Willie Johnson's view, the arrest was "for something I didn't do," and he was in fact released after seven days. Nonetheless, Willie Johnson presented no evidence to clearly show Respondent had knowledge of any drug dealing. According to Johnson, he had bought drugs in Kaymore's house while the Respondent was there, but he did not fear arrest by Respondent since the drug transaction occurred out of Respondent's sight in another part of the house. Elbert Grant knew Kaymore sold "reefer and cocaine" from his house but Respondent was never present when Grant was buying drugs at Kaymore's house, and Grant had no knowledge of whether Respondent ever saw any outside drug transactions. The testimony of Princess Robinson, a convicted felon with a long history of retail theft convictions, was not directed to the charges within the four corners of the Administrative Complaint. It was also not credible. The testimony of Connie Hodges was internally unreasonable and not credible upon the application of simple logic and further was not credible because of Ms. Hodges' clear bias against Respondent due to prior arrests he had participated in either directly or peripherally. The external credibility of Hodges' testimony was utterly destroyed by her observable lack of candor and demeanor on the stand, which demeanor clearly demonstrated Hodges' current substance abuse. Moreover, Hodges, who maintained she is currently "clean", acknowledged that her former drug ingestion had affected her reason and judgment and that her memory as of the date of formal hearing was unclear. The criminal charges filed against Respondent in connection with all events material hereto have been heard before the Circuit Court in Putnam County and have been either dismissed or tried by jury trial with a verdict of "not guilty".
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint. DONE and ENTERED this 13th day November, 1989, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. COPIES FURNISHED: John Rosner Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096. DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1988. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 North Florida Drug Corporation Scottie Discount Drugs 1448 Bakers Square Macclenny, Florida 32063 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, Wade Ragland, when notified by his transportation dispatcher that he had been selected for a random drug substance test, did not immediately report for testing because he had scheduled a prior maintenance appointment at his home, constitutes a refusal to be tested in violation of School Board Policy, state law, or contractual agreement. If so, was his failure to report immediately for random drug testing just cause for termination.
Findings Of Fact Petitioner, Pinellas County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Pinellas County School District. Dr. J. Howard Hinesley is the Superintendent of Public Schools for Pinellas County, Florida. Respondent, Wade Ragland, at all relevant times, was an employee of the Pinellas County School Board in its Transportation Department. Ragland was employed as a substitute school bus driver on July 20, 1998, and became a regular bus driver on August 17, 1998. On April 24, 2001, Ragland was acting as a school bus driver for the Board. He was tested for drugs in January 2001, and the test was performed after his first run, which was the Board's policy and standard procedure. Ragland's drug test result was negative. Pursuant to the Board's Policy 8.23 and Title 49 of the Code of Federal Regulations (CFR) as of January 1, 1995, all employees who are required to hold a Commercial Drivers License (CDL) as a condition of employment and who perform safety- sensitive functions, which include operating a vehicle designed to transport more than 15 persons, shall be subject to drug urinalysis testing and/or breath alcohol testing via sample collection, through random testing. The Federal Omnibus Transportation Act (The Federal Act) was at all times relevant, including April 24, 2001. Four times a year, once every three months, and on or before the 15th day of the month preceding the beginning of the quarter, a random list of drivers will be requested by a contract testing facility. The Federal Act does not require termination of a CDL employee who either fails or refuses to take a random drug test. The School Board Policy 8.23 is incorporated as Article 32 of the Agreement between the Pinellas County School Board and the School Employees Union, the exclusive collective bargaining representative for bus drivers. Under Section 8.23(3)(a) 3 of the Board's policy, random drug testing must be unannounced and shall be conducted during the selected driver's on-duty time. The Board's internal normal operating procedures for the selection of drivers to be tested in each quarter is accomplished in the following manner. Theresa Hooker, Personnel Technician and Drug Testing Program Manager since July 2, 2000, is responsible for drug testing of all personnel and maintenance of their confidential drug test records. FirstLab, the contract testing facility, is responsible for the selection of employees who will be tested during a given quarter from the list of names provided by the Board. Ms. Hooker is solely responsible for the determination of the date each of the selected employee will be tested. Upon receiving the quarterly list from FirstLab, Ms. Hooker sends the names of 20-25 selected bus drivers to Joyce Hefty, personnel technician in the Transportation Department. It is Ms. Hefty's responsibility to notify each driver, directly or through one of three dispatchers, of the selection for drug testing during a driver's first or second morning bus run. Once the selected driver reports to her office, she checks the driver's identification, provides the driver with the necessary testing paperwork and gives the location of a Board-approved testing facility. All dispatchers and bus drivers know that drivers who have been notified by dispatcher(s) that their names came up for testing are to report immediately, after completion of their first or second morning run, to Ms Hefty's office for identification check, completion of paper work, and instructions to report to a Board-approved test site for testing during their on-duty time for which they are paid. Equally known by dispatchers and drivers, is the meaning of on-duty time under School Board's Policy 8.23. On-duty time is the time required for a driver to complete his last morning run. Included is the time required for each driver to return to his/her assigned transportation compound. In those instances where a driver has permission to take the bus home, on-duty time is computed from check-out time of the first run to the time it would take a driver to return from the first or second morning run to the assigned compound. Each compound dispatcher maintains records and time sheets of assigned drivers. Should a driver selected for random drug testing not be tested, refuse to be tested, or experience the inability to provide a specimen and therefore has to wait hours to complete testing, Ms. Hefty is notified. She in turn notifies Ms. Hooker. Ms. Hooker notifies Mr. Gene Bessette, Administrator, Office of Personnel Standards. Mr. Bessette has discretionary decisional authority touching upon every facet of a particular situation. He is informed of each situation and determines whether an individual situation requires further action and, if so, what action should be taken. He determines the appropriate discipline based upon the totality of circumstances, disciplinary guidelines, and aggravating and mitigating factors, if any, and submits his final recommendations to the Superintendent of Pinellas Public Schools, Dr. Hinesley. Dr. Hinesley has authority to accept, reject or modify Mr. Bessette's recommendations. Dr. Hinesley's decision is presented to the Pinellas County School Board for final modification or approval. The chain of command would be for Ms. Hooker, upon receipt of information from Ms. Hefty, to contact Mr. Bessette. On April 24, 2001, at 9:34 a.m., Ms. Hooker received an e-mail from Ms. Hefty regarding Respondent, Wade Ragland. Ms. Hooker, however, was not in her office and did not speak with Ms. Hefty or Mr. Bessette on that day. On April 24, 2001, Ragland was acting as a school bus driver for the Board. The agreement between the Board and School Employees Union Local 1221, Firemen and Oilers, an affiliation of Service Employees International Union, which governs Ragland, provides, as does Board's Policy 8.23, that random drug testing "shall be during on-duty time." The Board's "normal random testing procedure," in effect since 1998, was to notify drivers during their first run in the morning that they are going to be sent for a random test after the completion of the first morning run. Dispatch would send a relief driver and bus to cover the second and third runs of the selected driver's route. Under the Board's normal procedure, notification to drivers would occur during a driver's first morning run. A driver's drug test, conducted at an approved testing site, would occur during the time the driver would normally be driving a second and third morning run. Under this procedure, selected drivers would not receive additional pay. Should, however, the actual drug test extend beyond a driver's normal scheduled time for morning runs, including compound check-in time, additional time would be added when computing the driver's total hours for that week. Under the operative terms of the Board's procedure, bus drivers are on non-paying "down-time" after completion of the final morning run. Down-time would continue until a driver began their evening run usually about 1:00 p.m. or later, depending on their selected bus route. "Down-time" is equal to "off-duty" time for which drivers receive no pay. The Board, at all times, was fully aware that drivers held other jobs during their down-time, a few cared for their elderly relatives, some, as did Ragland, scheduled personal appointments with service providers and others engaged in various other activities. Under the Board's procedure, "over-time," for over-time pay purposes, is the time drivers work beyond and over a predetermined time for each route. Drivers, at the beginning of each year, bid for a specific bus route. Each bus route has its own, per-week pay schedule based upon the number of morning/evening runs, the combined distance of the runs, plus any required over-time work in excess of their route time. The School Employees Union Agreement and the Board's policy mandate that drivers could be required to work over-time, when and if, the driver was requested by a dispatcher or supervisor to work over-time while the driver was on duty. For special trips, weekends, nights, etc., dispatchers or supervisors would first seek a volunteer driver. If no volunteer is found, a dispatcher would select a driver to work over-time who would receive over-time pay for the over-time work. Faced with a shortage of regular bus drivers for 2000- 2001 school year, the Board changed its herein above "normal random drug testing procedures" as described above. The intent of the Board was to comply with its Federal drug-testing requirements and to minimize expenditure of over-time pay for bus drivers. Accordingly, on August 31, 2000, Susan Detmold- Collins, Assistant Director, Transportation Department, issued a memo to "All School Bus Drivers" outlining a "Temporary Change To Random Drug/Alcohol Testing Procedure." In pertinent part the memo stated: To: ALL SCHOOL BUS DRIVERS Every year, at this time, we run into a bit of a problem with meeting our quotas for random drug/alcohol testing. As many of you know, we are required, by Federal Law, to randomly test 25 percent of our drivers each quarter. The current quarter started in July and will end in September. We always start out the school year somewhat behind in meeting our testing quotas, because many of our drivers do not work for summer school, and therefore can not be sent for testing during July and August. This year, because of our shortage of drivers, and the number of drivers we are required to send for testing, we decided to enact a temporary change to our usual procedures . . . First, I wanted to make sure all drivers were made aware of this temporary change we are making to our normal procedure and the reasons for it. Second, I wanted to reassure all drivers that we will pay them for any extra time they may end up working as a result of this change in procedure. (Since random drug/alcohol testing is usually conducted during a period of time when drivers would normally be doing their second and third runs, drivers do not usually receive any additional pay.) Third, I wanted to let drivers know we fully recognize that many of them have scheduled appointments and other things which they count on being able to do during the middle of the day, on what would normally be their "their down-time." If drivers let us know about these things, in advance, we will take steps to make sure they are not called to drug test when doing so would cause a scheduling conflict for the driver. Since a refusal to take a drug/alcohol test can have very severe consequences under Federal Law and School Board Policy, I wanted to reassure all drivers that we will work cooperatively with them and make every effort not to pull them for testing if they have made us aware that they have a doctor's appointment or other appointment or activity scheduled during their "down-time" on a particular day. Mr. Fleming and I greatly appreciate your cooperation and support during this period. . . . We are working hard with Supporting Services Personnel to recruit and train additional drivers as quickly as possible. We hope we'll have things back to "normal" by October at the latest, if not sooner. [emphasis added] By March 2001, the Transportation Department had hired sufficient bus drivers to cover the above-cited need. It is unclear, however, whether the Transportation Department made the administrative staff, dispatchers and bus drivers aware of the fact that a sufficient number of bus drivers had been hired. It is equally unclear, from the collective testimony of the Board's employees, whether the temporary change in the drug- testing procedure herein above outlined had been retracted, and if so, on what date. It is clear that as of April 24, 2001, the Transportation Department had not issued a written retraction of its August 31, 2000, temporary procedural change memoranda. From the testimony of a dispatcher, Masone, and the comments of a bus driver, Ragland, it is clear that neither Masone, nor Ragland, knew whether the normal drug-testing procedure or the temporary drug-testing procedure was in effect on April 24, 2001. It is therefore, a reasonable conclusion that some dispatchers, Masone for instance, assumed the temporary drug testing procedure was in effect wherein drivers would be required to undergo random drug-testing on down-time. Others, however, drivers like Ragland, assumed the normal drug- testing procedure was in effect and drivers could only be required to undergo random drug testing during on-duty time. This conflicting and confusing situation resulted in a misunderstanding of what was required of the drivers by dispatchers and what was required of dispatchers by drivers as it related to random drug testing procedures on April 24, 2001. It is certain, that bus drivers, dispatchers, the transportation personnel technician, the drug-testing program manager, and the professional standards office were not informed that the Board's temporary drug testing policy procedure was in effect on April 24, 2001, some six months past October 2000. On April 24, 2001, Ragland had driven to Palm Harbor University, then to Brooker Creek University and was driving to Safety Harbor Middle School, the third and last stop of his morning runs. Completion of the last morning run and the driving time required for Ragland to report back to the Tarpon Springs transportation compound checkpoint is considered on-the- clock time for pay purposes. The time of Ragland's arrival at the Tarpon Springs compound would begin his down-time. On that day, according to dispatcher Masone, Ragland's down-time began at 9:56 a.m. He would remain on down-time until his evening runs began at 1:00 p.m. later that same day. At 9:18 a.m. on April 24, 2001, Masone notified Ragland that he had been randomly selected for drug testing that morning. Ragland informed Masone that he had a prearranged service appointment at his home with an exterminator at 10:00 a.m. and he would go for testing "as soon as my appointment is over with." When asked by Masone why he did not tell his supervisor that morning when he checked in that he would not be available during his down-time, Ragland's reply was "I did not know I had to report" planned down-time activities. On this point Ragland is right. According to Gene Bessette, before the August 30, 2000, temporary change memo, there was never a written policy that required drivers to notify dispatchers or anyone else if they had a prearranged appointment during their down-time. Masone, not sure whether the temporary procedure or the normal procedure was in effect, informed Ragland that he "could" lose his job if he did not go for drug testing. Ragland replied he would go for testing after his appointment was finished, probably within the next one-half hour or approximately 10:30 a.m. At approximately 9:25-9:30 a.m. and after his conversation with Ragland, Masone called Joyce Hefty and informed her of his conversation with Ragland. Ms. Hefty asked Masone to call Ragland and have him call her. When Ragland arrived home, he called Ms. Hefty. At approximately 9:31 a.m. and after her conversation with Masone, Ms. Hefty e-mailed Susan Collins regarding Ragland's selection for random drug test at 9:18 a.m. and relayed the information as she received it from Masone regarding Ragland's position of his down-time status. Ms. Hefty does not recall if Masone told her Ragland said he would come for testing after his appointment was finished. Unable to reach Ms. Collins by telephone, Ms. Hefty called Mike Bessette regarding Ragland's situation. Bessette concluded the conversation by instructing Ms. Hefty to give Ragland another 40 minutes to cool off and see if he showed up at her office. As Masone had requested, Ragland called Ms. Hefty from his home between 9:32 a.m. and 9:44 a.m. Ms. Hefty asked if he was going for his drug test, Ragland replied that he could not come to her office at that time, but he would come as soon as his exterminator finished his work. The exterminator, Craig Schultheis, was in the house at the time of this telephone conversation and overheard Ragland's comments. Ragland's offer to Ms. Hefty to speak with his exterminator for verification was refused. Mr. Schultheis, the exterminator, arrived at Ragland's home approximately 9:40 a.m. completed his task and departed at approximately 10:05 a.m. While there, he overheard the telephone conversation and Ragland say, "When I'm done I can come in." He did not know at that time that Ragland was talking to Ms. Hefty. During the above telephone conversation, Ms. Hefty failed to inform Ragland that Mr. Bessette had given him an additional 40 minutes to report to her office. Had Ms. Hefty obeyed Mr. Bessette's instruction, Ragland would have had the option of immediately driving from his home to her office, should he chose to do so. Instead, at 9:44 a.m. Ms. Hefty, without further consultation with Mr. Bessette, her superior, concluded her conversation with Ragland by informing him that he was terminated. A few minutes later, she called the North County Dispatcher and requested that they send two drivers to pick up Ragland's bus and return it to the motor pool. Because Ragland drove from Safety Harbor Middle School directly to his home rather than driving directly to her office, Ms. Hefty testified it was too late for him to take the drug test. To her, his conduct constituted in part his refusal. This was Ms. Hefty's first occasion to encounter the situation where a driver who has been notified by a dispatcher of selection for random drug testing responded with, "No I can't; I have an (prearranged) appointment and will go when its finished." Ms. Hefty did not know whether Ragland was on "down- time" or "on-the-clock" status when he called her from his home. At the time she determined that Ragland's responses, "will go when my appointment is finished" or "not on my own time," coupled with his failure to immediately report to her office, was a refusal under her understanding of the rules. She did not know nor could she articulate the procedure or rule she relied on in reaching her conclusion. She testified she was merely doing what Polly Frush, who had the job before, had taught her. Ragland took a drug test at 1:00 p.m., on April 24, 2001, at Atlantis Clinic with a negative result. This drug test was not accepted by the Board as a substitute drug test. Under its policy, the Board accepts drug test results from only its approved and designated drug-testing facilities. Atlantis is not an approved facility. No Board employee, with whom Mr. Bessette spoke on April 24, 2001, informed him of Ragland's statement that he would be willing to go immediately to take the drug test after his appointment was concluded. If he had been made aware of Ragland's statement, he testified he would have taken that into consideration when determining whether or not Ragland's action was a refusal to take the random drug test. Assuming that Board staff had provided him with all the facts, and following the no exceptions policy (refusal equals automatic termination), Mr. Bessette made his recommendation of Ragland's termination to Dr. J. Hinesley, Superintendent of Public Schools, Pinellas County. This is a case of first impression for the Board's staff, wherein the Board issued two procedures for random drug testing, Policy 28.3 and the August 30, 2001, Memo to Bus Drivers; first impression where Board staff members and employees were not certain which one of the two procedures was in effect on April 24, 2001; and first impression where the conduct of the Board's administrative staff and the conduct of a bus driver employed the Board was reasonable given the circumstances on April 24, 2001. Petitioner's evidence in this case does not demonstrate insubordination by Ragland. The evidence does not prove that Ragland engaged in flaunting the Board's authority, repeatedly failed to heed the Board's instructions to take a drug test, openly refused to take the drug test, or failed to follow the Board's recently changed random drug testing procedure. Just the opposite is evident. On April 24, 2001, at approximately 1:00 p.m., during his normal on-duty time, Ragland took a drug test with a negative result. The facts here demonstrate, at most, Ragland's exercise of poor judgment based on the confusion created by a lack of clear directions from the Board. The confusion resulted from the Board's temporary random drug-testing procedure termination date and its normal random drug-testing procedure resumption date. Petitioner failed to produce evidence in any form to establish with reasonable certainty, which one of its two procedures was in effect on April 24, 2001. I find that on April 24, 2001, the Board's staff, at the very least, did not have a working knowledge of the applicable random drug testing procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Pinellas County School Board enter a final order finding Respondent, Wade Ragland, was not insubordinate and did not violate Board Policy 8.25(1)(u). Further finding that Respondent, Wade Ragland, did not violate School Board Policy 8.25(1)(x) by failing to comply with an existing School Board Policy. Further Recommended that Respondent, Wade Ragland be reinstated to his former position as a bus driver. DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2001. COPIES FURNISHED: Andrew J. Salzman, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street, Southwest Largo, Florida 33770-3536 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent Della Elaine Lamberton should be granted re-registration of terminated license No. 34741-1 as indicated in the Administrative Complaint dated 7-18-78, pursuant to Section 464.21(1)(d), Florida Statutes. Respondent Della Elaine Lamberton appeared at the hearing without counsel or other representative. The Hearing Officer explained her rights in an administrative hearing and she acknowledged that she understood the same. The Respondent also stated that she is now married and that her married name is Farris. Petitioner moved to amend paragraph 3 of the Administrative Complaint to reflect that Respondent was arrested in January, 1976 rather than 1975 as alleged therein. There being no objection, the request was granted.
Findings Of Fact Respondent was licensed as a Licensed Practical Nurse with the Florida State Board of Nursing in 1974 and such license was automatically terminated on April 1, 1977, for non-payment of license renewal fee. On August 11, 1977, Respondent filed an application for re-registration of her terminated license with Petitioner. Petitioner reviewed the application and denied the same by a letter to Respondent dated October 28, 1977, under the authority of Section 464.21(d), Florida Statutes. The specific basis for denial was that Respondent had a prior arrest for possession of marijuana. (Testimony of Johnson, Exhibit 1-2) On February 4, 1975, Hillsborough County Deputy Sheriff Gene L. Stokes and Detective William Strickland, who were operating as undercover narcotic detectives, entered Respondent's residence at 3213 Delray Drive, Tampa, Florida. They had made prearrangements with Joseph H. Farris, who also resided at that residence, to purchase approximately two pounds of marijuana for $175.00 per pound. Farris met the officers at the door and escorted them into the kitchen where Respondent, Albert Yourn, and Thomas Spear, were seated around the kitchen table. A neighbor, Nancy Anderson, entered the residence at the same time as did Stokes and Strickland. Farris proceeded to cut a quantity of material from a compressed block of a substance that appeared to he marijuana. He placed the severed portion in a ziplock "haggle" and weighed it on a scale located on the kitchen table. At that point, the officers arrested all persons on the premises for possession and delivery of marijuana. A search of the residence pursuant to a search warrant revealed the presence of other quantities of marijuana and implements for its use in a kitchen desk drawer and in a cabinet above the kitchen stove. Two bags of marijuana were also found in Spear's possession as a result of a search of his person. The amount of marijuana remaining on the kitchen table was approximately 920 grams and a "haggle" containing approximately 16 pre-wrapped ounces of marijuana was also on the kitchen table. The substance which had been sold to Stokes was delivered to the Florida State Crime Laboratory in Tampa and, after analysis by Richard H. Estes, a forensic chemist employed by the Florida Department of Law Enforcement, was determined to be cannabis sativa, also known as marijuana. Marijuana is a Schedule I controlled drug under Chapter 893, Florida Statutes. (Testimony of Stokes, Estes) On February 13, 1975, an Information was filed in the Circuit Court of Hillsborough County, Florida against Respondent for possession of more than five grams of marijuana on February 4, 1975, in violation of subsection 893.13(1)(e) Florida Statutes. On May 25, 1976, Respondent entered a plea of guilty to the charge and Order Withholding Adjudication of Guilt was entered by the Court with probation for a period of two years. (Exhibits 3-4) Respondent testified at the hearing that she had no knowledge that marijuana was being sold at her residence on February 5, 1975, and that she had not entered the house until subsequent to the entrance by the detectives. She admitted that her residence had been a gathering place for individuals in the neighborhood, including some of whom she did not approve and also persons unknown to her. She testified that although she pleaded guilty to the charge of possession of marijuana, she was under the impression that she was simply acknowledging that marijuana had been present at her residence. She also testified that when she had discovered what was taking place at her home, she "started a little hassle " with Farris. Her present husband, Joseph Farris, testified and corroborated her version of the incident, including her claim that she was unaware of the presence of marijuana on the premises. In addition, her cousin, Albert Yourn, who was present at the time of the arrest, testified that Respondent was not in the house at the time the drug transaction was taking place, but that she arrived prior to the arrest. (Testimony of Respondent, J. Farris, Yourn) Petitioner's records reflect that Respondent meets all other qualifications for licensure. They do not show the presence of any other derogatory information prior to or subsequent to Respondent's arrest. (Testimony of Johnson)
Recommendation That the application of Respondent Della Elaine Lamberton Farris for re-registration as a Licensed Practical Nurse be denied under the authority of Section 464.21(1)(d) Florida Statutes. That favorable consideration he given to any subsequent application by Respondent for re-registration, provided that such application is accompanied by proof of present good character. DONE and ENTERED this 27th day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Investigation and Licensing State Board of Nursing 6501 Arlington Expressway Bldg B Jacksonville, Florida 32211 Della Elaine Lamberton Farris 3202 Clifford Sample Drive Tampa, Florida 33619
Findings Of Fact The Petitioner, A. Lincoln Schaub, was committed to the custody of the Department of Health and Rehabilitative Services by order of the juvenile court in Palm Beach County, Florida, on May 24, 1982, and placed in a drug program called "Here's Help" in Miami after his arrest on burglary charges. After two weeks at home prior to entering the program, Petitioner entered "Here's Help" on June 8, 1982. On June 21, 1982, Petitioner left the "Here's Help" program without consent or knowledge. On June 25, 1982, Petitioner's mother reported that Petitioner had returned home. Petitioner's parents subsequently transported him to detention. On July 17, 1982, he was arrested for burglaries allegedly committed while he was absent from the "Here's Help" program. The Department had a transfer hearing on July 29, 1982, and found that Petitioner had left "Here's Help" without consent. Based on that hearing, Petitioner was transferred to the Florida State School for Boys at Okeechobee. Petitioner left "Here's Help" because he had received demerits for a dirty locker and because he was not permitted to work. While absent from "Here's Help", Petitioner used narcotic drugs and was arrested for several burglaries. Petitioner evidenced a lack of self-discipline and an inability at this time to remain in a program voluntarily. Petitioner has a drug addiction problem.
Recommendation Having found that the Department's initial decision to place Petitioner in the Florida State School for Boys is in the Petitioner's best interest, it is so recommended. DONE and RECOMMENDED this 21st day of October, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Thomas Rolle, Esquire Assistant Public Defender 224 Datura Street West Palm Beach, Florida 33401 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Mr. & Mrs. Melvin Schaub Route 1, Box 642 (Loxahatchee) Pompano Beach, Florida 33060 Ms. Judith Hill, Supervisor Children, Youth and Families Program 111 Georgia Avenue West Palm Beach, Florida 33401 David H. Pingree, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS 1317 Winewood Boulevard Building One, Room 406 Tallahassee, Florida 32301
The Issue Should the Board of Nursing (the Board) impose discipline on Respondent's nursing license for violating Section 464.018(1)(n), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts At all times material to this Complaint, Respondent was a registered nurse (R.N.) within the state of Florida, having been issued license number RN 2055672. Respondent's address of record is Rt. 22, Box 2347, Lake City, Florida 32024. On or about April 21, 2004, Respondent submitted to a pre-employment drug screen. The drug screen returned on or about April 24, 2004, indicating a positive test result for cannabinoids - tetrahydrocannabinol, the principal active component of Marijuana. Marijuana is a schedule I controlled substance pursuant to Section 893.03(1)(c)35., Florida Statutes. A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and its use under medical supervision does not meet acceptable safety standards. Respondent did not have a lawful prescription or a legitimate medical reason for using Marijuana, or any other substance that might test positive for cannabinoids - tetrahydrocannabinol. Specimen Submission On April 21, 2004, when Respondent underwent a pre- employment drug screen, it was by providing a urine specimen. As the donor she signed a form with the following language: I certify that I provided my urine specimen to the collector: that I have not adulterated it in any manner: each specimen bottle used was sealed with a tamper evidence seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. It was specimen ID number 190920 to be submitted for drug testing at Doctors Laboratory, Inc. (Doctors Laboratory) in Valdosta, Georgia. The reason Respondent provided the urine specimen was in relation to a job application with Shands, Lake Shore, Live Oak and Starke (Shands) whose business address is in Gainesville, Florida. Respondent was tested for drugs in accordance with the Florida Drug Free Work Place Program that is part of the pre-employment process for the prospective employer. The urine specimen was tested for the presence of amphetamines, cannabinoids, cocaine, opiates, phencyclidine, barbiturates, benzodiazepines and methaqualone. Respondent's urine specimen was packaged and shipped to Doctors Laboratory in Valdosta, Georgia, where it was received on April 22, 2004, for testing. The test designed to detect cannabinoids is referred to as "9 CARBOXY-THC." The laboratory test performed on Respondent's urine specimen returned as positive for the presence of cannabinoids, outside what would be considered an acceptable range. On April 23, 2004, Doctors Laboratory released Respondent's test results to the Occupational Health Services Unit within Shands, which was received by that unit on the same date as evidenced by a stamp found on the laboratory test information copy. On April 26, 2004, nurse Denise Cannon signed a document that is headed "Shands Healthcare Occupational Health Services Positive/Abnormal Drug Screen." It pertains to Respondent. It mentions the prospective hiring of the Respondent to work at Lakeshore in the position of R.N./ICU. It notes of the positive drug screen for: 9 CARBOXY-THC-Marijuana. It notes that nurse Cannon notified Respondent of the results on April 26, 2004. Part of the notification was to verify Respondent's identity by social security and date of birth and to advise Respondent of Shands Drug Free Work Place Policy, as well as rights/responsibility under the Florida Drug Free Work Place Act of 1988. The form indicates that Respondent requested a consultation with the MRO, short for Medical Review Officer. It comments that the Respondent was not hired. The comment section states that Respondent "would like to contest the drug screen." On April 28, 2004, a MRO Verification Worksheet was completed in relation to the Respondent and specimen ID 190920, which shows that a positive result was received on April 27, 2004. On April 28, 2004, the worksheet was signed by Dr. Ku-Lang Chang M.D., M.R.O. According to the MRO Verification Worksheet, an attempt was made to call Respondent on April 27, 2004. On April 28, 2004, as the worksheet describes, a message was left "LM with husband." The Verification Worksheet goes on to describe that on April 28, 2004, an interview was conducted in which the "applicant decided not to pursue this." This is understood to refer to Respondent as the applicant. In the April 28, 2004, conversation Respondent was informed of the test results. The MRO Verification Worksheet has a notation that "reported to IPN 5/3/04" IPN is read to refer to the intervention project for nurses. In conclusion, the MRO Verification Worksheet made a verification decision: positive for 9 CARBOXY-THC. On April 28, 2004, Dr. Ku-Lang Chang notified N. Denise Cannon, R.N., Occupational Health Unit within Shands, of the positive drug screen. On May 10, 2004, nurse Cannon executed a form provided by the Department reporting on Respondent's positive drug screen. On June 10, 2004, nurse Cannon wrote Ms. Julie Weeks, of the Department, outlining the drug screen process, notification of the results on April 26, 2004, and the advice to Respondent to contact IPN. The June 10, 2004, correspondence refers to Respondent's request that the results of the drug screen be turned over to Dr. Ku-Lang Chang, Medical Review Officer (MRO). The June 10, 2004, correspondence from nurse Cannon to Ms. Weeks speaks of the intervention project, the IPN, Intake Case Manager Pat Falke and Respondent's failure to follow through with the recommendations of IPN. As a consequence, Nurse Cannon corresponded with the Department to undertake an investigation. On May 28, 2004, Pat Falke, had written nurse Cannon indicating that efforts at gaining Respondent's participation with IPN had not succeeded and reminding nurse Cannon to proceed with the execution of the uniform complaint on the Department's form. Laboratory Analysis Doctors Laboratory where Respondent's urine specimen was analyzed is a clinical reference laboratory that serves Florida, among other states. Its affiliation with Florida is in relation to the Florida Drug Free Work Place Program in providing forensic urine drug testing for employment screening. Richard Earl Struempler, B.S., M.T., (ASCP), MS, MA, NRCC is the Director of Operations and the Director of Toxicology for Doctors Laboratory. As such, he is responsible for the day-to- day operations of the forensic urine drug testing laboratory pertaining to procedures and protocols, in the interest of making certain that the procedures followed in the laboratory comply with rules, regulations, and certification standards for the Florida Drug Free Work Place Program employment drug testing, among other affiliations. By stipulation, Mr. Struempler was accepted as an expert in toxicology and drug testing for purposes of his testimony. On April 22, 2004, Doctors Laboratory received Respondent's urine specimen for drug testing. Tests were performed to detect the class of drugs that have been described. Within that grouping was Marijuana which is also known as THC. THC stands for tetrahydrocannabinol, with delta nine tetrahydrocannabinol being the main psychoactive ingredient found in Marijuana. The test conducted on the urine specimen was designed to look for the metabolite of this substance in the carboxylic acid form. Respondent's urine specimen was collected in Gainesville and taken by carrier to Doctors Laboratory in Valdosta, Georgia. When it arrived by carrier, it was placed in the accessioning area within the laboratory for immediate transfer to the drug testing area within the laboratory. The accessioning area is a secured facility within the laboratory with limited access, access only to the individual(s) who would need to work with the specimen. Shipping containers are opened in the accessioning area and the individual specimens are removed with an interest in discovering any damage or tampering that may have occurred during shipment. The sample is assigned an accessioning number and is marked as being received in the drug testing laboratory accessioning area. Nothing about Respondent's sample indicated that there were signs of tampering or damage. It was specifically indicated that the primary seal bottle for the urine specimen was intact upon arrival. The accessioning number for Respondent's drug specimen was 07163062. That number was utilized in tracking the urine specimen through activities associated with the urine specimen while in the laboratory. Two tests were employed to analyze Respondent's urine specimen in Doctors Laboratory. The first test, referred to as an initial test, was the immunoassay test designed to identify categories of drugs, to include cannabinoids. It is an antibody antigen reaction test to reveal a color associated with a given drug. At this stage the laboratory also does specimen validity testing, looking for the presence of any indicators that might show that the specimen was tampered with. These steps in the process were utilized in analyzing Respondent's urine specimen. The initial test was by use of an aliquot of the urine specimen. The immunoassay test is accepted in the scientific community and is contemplated as a protocol related to the Florida Drug Free Workplace Program. Respondent's results show the presence of cannabinoids at the cut-off level of 15 nanograms per milliliter or greater. Being within that range, it was considered to be a positive test. Recognizing the positive results, the laboratory staff tested the urine specimen further through what is referred to as confirmation testing. When the confirmation test was performed, a fresh aliquot was obtained from the urine specimen bottle. The confirmation test is designed to extract from the urine, delta 9 tetrahydrocannabinol or delta 9 THC carboxylic acid. The extracted material is concentrated in a small vial and derivatized or converted into a form that allows it to be analyzed by an instrument known as a gas chromatograph/mass spectrometer, also referred to as GC/MS. This step in the process is designed to separate THC from other things found in the urine specimen, breaking it down into molecular components. The components are measured as to size, weight, and amount. The GC/MS test is considered within the scientific community to be accurate and reliable. The results of the test on Respondent's urine specimen revealed the presence of delta 9 THC carboxylic acid at 57.5 nanograms per milliliter, a significant amount confirming the presence of the drug. The immunoassay and GC/MS test equipment was properly calibrated before performing the test on Respondent's urine specimen. The tests were properly performed. The chain of custody from the collection point through the testing regimen was not breached and is well documented. The chain of custody was maintained in accordance with standards required at Doctors Laboratory. Respondent's urine specimen that remained following the laboratory test was retained for at least a year, the period required for retention. During that time, no request was made to make the specimen available for independent testing outside the laboratory. As an expert, Dr. Struempler offered his professional opinion that Respondent's urine specimen was collected and submitted to the Doctors Laboratory in accordance with standard operating procedures, that the test and handling of the specimen was in accordance with standard operating procedures, and that the results of the tests reported on April 23, 2004, as being positive for the presence of cannabinoids, THC, was a true and accurate reflection of the nature of the substance found. No administrative or technical errors in the handling and testing occurred. Dr. Struempler expressed the opinion that the Respondent, donor, would have had to have consumed Marijuana or a Marijuana THC containing product one to four days prior to submission of the specimen or as long as 10 days prior to the submission under extreme circumstances. Dr. Struempler's expert opinion is accepted.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 464.018(1)(n), Florida Statutes (2003), for failing to meet the minimal standards of acceptable and prevailing nursing practices through a violation of Florida Administrative Code Rule 64B9-8.005(2)(k) and that Respondent be fined $250, subject to IPN evaluation and placed on a period of probation for one year, in accordance with the disciplinary guidelines provision set forth in Florida Administrative Code Rule 64B9-8.006(2)(vv). DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 2nd day of March, 2007. COPIES FURNISHED: William F. Miller, Esquire Ellen Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Duncan Alden Jones, Esquire 330 Southwest Fourth Avenue High Springs, Florida 32643 Rick Garcia, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Tom Koch, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Hilda T. Clark, Respondent, is a registered nurse who holds license no. 21750-2. Evidence adduced during the course of the hearing reveals that during 1961, while Respondent was employed as a private duty nurse at Mount Sinai Hospital in Miami, she withdrew a narcotic drug, to wit: Dilaudid, for her patient, Mrs. Fanny Goldblum on approximately thirty occasions, which she administered to herself instead of the patient. Based on an Information for violation of the Florida Uniform Narcotic Drug Act (Chapter 398.19, F.S.) which was filed on March 15, 1961, the Respondent pled guilty and was placed on probation for a term of seven years on March 31, 1961. Thereafter, on January 12, 1977, the Respondent, while employed as a private duty registered nurse at the University of Miami Hospital and Clinic, converted to her own use a narcotic drug, to wit: Demerol. When confronted with this fact, the Respondent admitted to the Head Nurse, M. Francis, R.N., that she had injected herself with the Demerol and that she was addicted to narcotics for many years. The Respondent does not contest the above allegations and in fact admits that she engaged in the conduct that is alleged in the administrative complaint filed herein. However, she urges that the suspension of her license is unwarranted in these circumstances inasmuch as she was undergoing tremendous pressure based on her mother and spouse's poor health. Additionally, she related an incident wherein she was undergoing tremendous pain and was placed on the medication, Demerol for the relief of pain due to severe herpes zoster infection. Evidence and testimony introduced during the course of the hearing reveal that herpes zoster infection causes severe pain and that to control such pain, her physician, Edward E. Goldman, M.D., prescribed oral Tolwen, Demerol and Dilaudid suppositories. There also was evidence introduced during the course of the hearing which indicated that the Respondent is not now suffering from any drug related problems or addiction and that her professional abilities are beyond question. Respecting the most recent incident which occurred on January 12, 1977, evidence reveals that the Respondent was indeed laboring under a great deal of stress and mental pressures which, in her words, forced her to resort to the unlawful withdrawal and injection of the narcotic drug, Demerol. There was no evidence introduced that the Respondent engaged in any unlawful act during the period between the incident which occurred in 1961 and the January, 1977 incident. Nor was there any further evidence of any drug addiction problem by Respondent subsequent to the January, 1977 incident. The unlawful use of and procurement of drugs by nursing professionals is a serious act which should not be condoned without sanction by the Board of Nursing. It goes without saying that such acts and/or conduct constitutes a departure from the minimal standards of acceptable and prevailing nursing practice and in fact constitutes unprofessional conduct. See Chapter 464.21(b), Florida Statutes. Based on evidence received during the course of the hearing, there is substantial and competent evidence from which a finding can be made that the Respondent engaged in conduct violative of the above chapter i.e., Subsection 464.21(b), Florida Statutes. However, there was no evidence introduced on which a finding can be made that the Respondent is guilty of conduct violative of Chapter 464.21(c) and (d), as alleged. Although two instances of unlawful useage of narcotic drugs was alleged which the Respondent admits, in view of the length of time between the two occurrences, the undersigned concludes that the record fails to establish that the Respondent is habitually addicted to the use of controlled substances as provided in Chapter 464.21(c), Florida Statutes. I shall therefore recommend that the remaining two allegations be dismissed. Respecting the finding that the Respondent engaged in unprofessional conduct within the meaning of Chapter 464.21(b), Florida Statutes, I shall bear in mind and give consideration to the lengthy and creditable service that she has given to the nursing profession, a profession in which she desires to continue to practice. Based thereon and the favorable testimonials received into evidence, I shall recommend that the Respondent be placed on probation for a period of two years.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Respondent be placed on probation for a term of two years. In all other respects, I hereby recommend that the complaint allegations be dismissed. RECOMMENDED this 12th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 George A. Kokus, Esquire Cohen and Kokus 500 Roberts Building 28 West Flagler Street Miami, Florida 33130 =================================================================
The Issue Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.
Recommendation Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED. DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A. 205 South Garden Avenue Clearwater, Florida 33516
The Issue Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character by unlawfully being in actual or constructive possession of cocaine on or about May 9, 1988, and by introducing cocaine into her body on or about that date.
Findings Of Fact On November 15, 1974, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-11734 was duly issued to Respondent by Petitioner. Respondent is a sworn police officer who has been employed as an investigator in the Special Investigations Unit of the Dade County School System for over 14 years. The Special Investigations Unit is a law enforcement agency consisting of approximately 56 sworn officers whose duties include follow-up investigations on internal issues and the investigation of crimes that are committed on School Board property. There is also a uniformed division which patrols certain of the schools in the Dade County system. The sworn officers of the Special Investigation Unit are required to be certified by Petitioner even though they are employed by the Dade County School Board as School Board employees. The sworn officers of the Special Investigation Unit are represented for collective bargaining purposes with the Dade County School Board by the Police Benevolent Association. The labor contract that was negotiated on behalf of Respondent and her fellow sworn officers of the Special Investigative Unit require that each sworn officer take an annual physical to include the giving of a urine sample from the officer to be analyzed for the presence of controlled substances. Respondent was directed by her employer to present herself on May 9, 1988, for an annual physical examination at Mount Sinai Medical Center. Respondent was aware that an annual physical, including a drug test would be required of her. She was given over two weeks advance notice of the exact date the physical examination would occur. On May 9, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by her employer. She was given a small sterile sample bottle in which she produced a sample of her urine as instructed. Nurse Cheryl Cain, the Mount Sinai employee responsible for the collection of the urine sample from Respondent, received the urine sample from Respondent and promptly divided the urine sample into two smaller sterile bottles and sealed each of the smaller bottles with its cap and with evidence tape. Nurse Cain followed Mount Sinai's procedures in collecting and sealing the urine sample. The sealed bottles containing Respondent's urine sample were labeled so that each bottle was identified as containing Respondent's urine sample. An identifying series of numbers, referred to as that bottle's bar code, was placed on each of the bottles. Bar code number 118856 was placed on one bottle and bar code number 110783 was placed on the other bottle. The two bottles were then placed in a locked box. On May 9, 1988, the sealed bottles containing Respondent's urine sample were picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the two specimen bottles could not be tampered with without detection. On May 19, 1988, sample bottle 118856 was opened by a laboratory analyst employed by Toxicology Testing Service. A small sample of Respondent's urine sample, referred to as an aliquot, was removed from sample bottle 118856 with a sterile disposable plastic pipette and placed in a sterile disposable cup for analysis. The aliquot of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for a cocaine metabolite, which is a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. This screening procedure, known as an emit test, produced a result of 71 on the first screening and a 69 when a separate aliquot from sample 118856 was tested. The emit test is conducted using an Hitachi 705 machine, a piece of equipment that is widely used in the industry. As calibrated, a score of 50 is considered a positive score for cocaine. The purpose of the emit test is to screen those samples that will be later analyzed by gas chromatography mass spectrometry method of testing urine samples. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99.99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The confirmatory analysis confirmed that Respondent's urine sample was positive for the presence of a cocaine metabolite that can only be produced through the ingestion of cocaine. Subsequent testing on June 3, 1988, by Toxicology Testing Services of aliquots from sample bottle 110783, followed the same procedures as those followed for the analysis of aliquots from sample bottle 118856 and produced similar, positive results for the presence of the cocaine metabolite. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that sample bottle 118856 and sample bottle 110783 had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the aliquots from Respondent's urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled "Controlled Substance Testing Procedures". Respondent denies that she has ever used or has unlawfully possessed cocaine. Respondent handles cocaine from time to time in the execution of her official responsibilities, but she was unable to point to an incident that may have produced the positive test results through incidental contact with cocaine. Although samples of the currency in use in South Florida have tested positive for the presence of cocaine, Respondent would not have ingested sufficient quantities of cocaine from currency to produce the level of the cocaine metabolite reflected by the testing. On May 23, 1988, Respondent was advised by her supervisor that she had tested positive for cocaine. Respondent immediately gave another urine sample that tested negative for cocaine. Respondent had attended training sessions that taught that cocaine usually cleared the human body after 72 hours. This is a misconception. The speed with which the cocaine metabolite clears the human system depends on many variable factors, including the general physical condition of the person involved, the amounts of liquids consumed by the person, and the amount of exercise by the person. Cocaine metabolite can be detected in the human body more than 72 hours after its ingestion. Respondent failed to offer any plausible explanation for the positive results of cocaine being detected in her system that would permit any conclusion other than the conclusion that she had voluntarily ingested cocaine. Respondent has been an exemplary employee since her initial employment with the Special Investigative Unit. She has never been suspected of drug use by her superiors. None of her fellow officers ever reported that they suspected Respondent of drug use. Respondent has had several commendations during her term of service. Her performance evaluations have always been satisfactory or higher. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment. The finding by the previous hearing officer that the tests were not reliable is not binding here and is contrary to the greater weight of the evidence in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUD B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. T. Smith, Esquire 1017 N.W. 9th Court Miami, Florida 33136 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
