The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Since July 1993, and at all times material to this case, the Respondent has been licensed as a registered nurse holding Florida license number RN-2711762. On April 27, 1999, the Respondent was employed as a nurse by "Qwest, Inc." On April 27, 1999, the Respondent submitted to an employer-ordered drug screening at her workplace. The drug screen was conducted by use of a urine sample collected by Kenneth Stanley. Mr. Stanley owns and operates a business that specializes in collection of urine samples for purposes of drug screens. Mr. Stanley utilized the sample collection guidelines adopted by the "Florida Drug Free Workplace" program and the Florida Department of Transportation. Upon arriving at "Qwest, Inc." Mr. Stanley secured the rest room where the urine samples would be taken by placing blue dye in the toilet water and covering the faucet with a surgical glove secured with tape. Apparently, the purpose of the process is to prohibit the contamination of a urine sample by dilution. Mr. Stanley set up a table in the area outside the rest room to permit the processing of the samples and the completion of paperwork. Mr. Stanley called the Respondent into the area and verified her identification. He began to complete paperwork identifying the Respondent. Mr. Stanley removed a plastic cup from a sealed package that was opened for use in obtaining the sample from her. He provided the cup to her and asked her to enter the rest room, fill the cup to the proper level, set the cup on the sink counter, and then exit the rest room without washing her hands or flushing the toilet. Mr. Stanley retrieved the cup immediately after the Respondent notified him that she had completed the process and brought it back to his table. He placed the sample into a sealed tube and completed the paperwork identifying the sample as having been provided by the Respondent. The protocol utilized by Mr. Stanley requires the sample-provider to remain in the room until all paperwork is completed and the sample is properly sealed and packaged for shipment. The Respondent asserts that she left the room after providing the sample to Mr. Stanley and that Mr. Stanley failed to maintain appropriate security for her sample, permitting it to be contaminated by another employee. The evidence establishes that the Respondent remained in the area and was in the presence of the sample at all times during the collection, sealing and identification process. The Respondent was present when her sample was identified, processed, and packaged for shipment. There is no credible evidence that another employee of "Qwest, Inc." contaminated the Respondent's urine sample or that Mr. Stanley failed to maintain the proper identification of the Respondent's sample from the point of collection through the point of shipment. Mr. Stanley shipped the Respondent's sealed urine sample to Clinical Reference Laboratory (CRL) in Lenexa, Kansas. The sealed sample was received and processed by CRL, which similarly receives and processes approximately one million samples annually for purposes of drug screen testing. In performing urinalysis drug screen tests, CRL initially performs a preliminary test called an "enzyme immunoassay" on a portion of the sample. If the results of the preliminary test indicate the presence of a substance, CRL tests a second portion of the sample using a gas chromatography mass spectrometer to confirm the results of the first test and to quantify the specific amount of drug present in the urine sample. The enzyme immunoassay performed on the Respondent's urine sample indicated the presence of marijuana metabolites. Marijuana metabolites are a chemical substance contained in the Cannabis plant. Cannabis is a controlled substance pursuant to Chapter 893, Florida Statutes. The gas chromatography mass spectrometer test performed on the Respondent's urine sample confirmed the presence of marijuana metabolites and indicated the specific amount of drug present in the urine sample as 28 nanograms of marijuana metabolites per milliliter of urine. Based on the results of the testing at CRL, the evidence establishes that the Respondent's urine sample taken on April 27, 1999 tested positive for marijuana. There is no evidence that the Respondent had a prescription or a valid medical reason for using marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent, imposing a fine of $250 and requiring the completion of an appropriate continuing education course related to substance abuse in health professions. The continuing education course shall be in addition to those continuing education requirements otherwise required for licensure. Further, the Final Order should further require that the Respondent participate in an evaluation by the Intervention Project for Nurses (IPN) within 60 days of the issuance of the Final Order, and comply with the treatment recommendations, if any, made by the IPN, or suffer suspension of licensure until compliance with this requirement is established. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of December, 2000. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Elizabeth A. Hathaway, Esquire Reginald D. Dixon, Esquire Agency for Health Care Administration General Counsel's Office 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Annie Scotto Downs 8708 52nd Street North Tampa, Florida 33617
The Issue Whether Respondent raced a horse that was impermissibly medicated in violation of section 550.2415(1)(a), Florida Statutes (2015), and implementing administrative rules1/ as alleged in the Amended Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. At all times material, Ms. Pompay held a pari-mutuel wagering professional individual occupational license, number 1001817-1021, issued by the Division. At all times material, Ms. Pompay was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D. Under section 550.2415(1)(a), an animal that has been impermissibly medicated or determined to have a prohibited substance present may not be raced. It is a violation of the statute for a person to impermissibly medicate a horse which results in a positive test for such medications based on samples taken immediately after the race. Rule 61D-6.002(1) provides: "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the horses . . . he/she enters to race." Ms. Pompay was the trainer of record for the horse named R Bling Shines who raced at Gulfstream Park on February 20, 2016. R Bling Shines won her race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division obtain urine and blood samples from racehorses. Ms. Pompay was the trainer of record for the horse named Run Saichi who raced at Gulfstream Park on May 13, 2016. Run Saichi finished second in his race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. Rule 61D-6.005, entitled "Procedures for Collecting Samples from Racing Animals" was in effect when R Bling Shines and Run Saichi were sent to the equine detention barn for the collection of "urine, blood or other such samples" as authorized by the rule. The term "other such samples," as used in the rule, means hair and saliva. The rule does not refer to the "processing" of whole blood samples into blood serum. The University of Florida Laboratory determined that the post-race blood sample taken from R Bling Shines tested positive for a blood serum overage of the permitted medication "betamethasone." The University of Florida Laboratory determined that the post-race blood sample taken from Run Saichi tested positive for a blood serum overage of the permitted medication "mepivicaine." On February 20, 2016, the Equine Detention Barn Procedures Manual (2010 Manual) was in effect for all equine detention barn facilities. The 2010 Manual was in effect between June 2010 and April 7, 2016. At the time the 2010 Manual became effective, rule 61D-6.005 (2001) was in effect. On November 25, 2015, the Recommended Order issued in Case No. 15-5037 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1., Florida Statutes, the Division could not base agency action on blood serum samples obtained pursuant to it. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On December 15, 2015, the Recommended Order issued in consolidated Case Nos. 14-4716 and 15-2326 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1. the Division could not base agency action on blood serum samples obtained pursuant to the unadopted rule. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On April 7, 2016, the 2016 Guidelines were distributed to all equine detention barn facilities to become effective as of that date. The 2016 Guidelines superseded and replaced the 2010 Manual. At the time the 2016 Guidelines became effective, rule 61D-6.005 (2015) was in effect. The 2016 Guidelines were in effect on May 13, 2016, when Run Saichi raced at Gulfstream Park. The 2010 Manual prescribed detailed procedures for collecting blood samples from race horses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, and mailing of the specimen to the laboratory for testing. The 2010 Manual was applicable to every horse racing facility within the State of Florida. It had been in effect in its then- current form between 2010 and April 2016 and, by its own terms, was mandatory. It provided that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the 2010 Manual. It described seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and described detailed procedures in this "strict sequence of events that must be followed." The 2016 Guidelines do not prescribe the detailed procedures for collecting blood samples from racehorses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, freezing the sample and mailing of the specimen to the laboratory for testing. However, since the date the 2016 Guidelines were put into effect, the procedures followed by Division employees in the testing barn for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample and the mailing of the specimen to the laboratory have been the same as those prescribed by the 2010 Manual. At the time of the implementation of the 2016 Guidelines, there were no "established procedures pursuant to applicable law and administrative rule" to process whole blood into blood serum other than the procedures set forth in subsection 4.6 of the 2010 Manual. In addition, at the time of the implementation of the 2016 Guidelines, there were no "testing laboratory SOPs" or "protocols" in place for detention barn personnel to follow. According to the laboratory director, the laboratory’s SOPs and protocols do not begin to operate until the moment the samples arrive at the laboratory in Gainesville. The Division published the 2010 Manual under the direction of its deputy director and distributed it to every employee who worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2010 Manual was not made available to the general public unless a copy was requested as a public record. The 2010 Manual was an official publication of the Division used at all horse racing facilities in the State of Florida and was last updated on June 25, 2010. During the approximate six-year period that the 2010 Manual was in effect, not one owner’s witness went to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division published the 2016 Guidelines under the direction of its deputy director and distributed it to every employee that worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2016 Guidelines were not made available to the general public unless a copy was requested as a public record. Since the 2016 Guidelines took effect, not one owner’s witness has gone to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division uses various forms in connection with blood and urine sampling. The forms catalog the specimens and, if the procedures set forth in the 2010 Manual and the 2016 Guidelines are followed, demonstrate that the horse was in the testing barn at the time the blood and urine samples were taken. The Division’s Form RL 173-3 is a self-adhesive sequentially numbered bar-coded, three-part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (blood, urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card is completed, appropriately signed, and sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen (blood label), the numbered portion designated for the urine specimen (urine label), and the numbered portion containing information about the animal and trainer that was required to be signed by the witness (card) under rule 61D-6.005 (2001) and "may" be signed by the witness under rule 61D-6.005 (2015). In the sampling procedures followed in this case, the blood labels were not affixed to the collection tubes. The blood labels, from which the card portion was "detached," were affixed to the evergreen blood tubes. This was consistent with the governing rule, as well as the 2010 Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed on February 20, 2016, were in compliance with the procedures set forth in the 2010 Manual. The sampling procedures followed on May 13, 2016, were the same as those followed on February 20, 2016. As stated in subsection 4.4 of the 2010 Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with" between the time the sample is sealed at the detention barn and the time the sample is received by the University of Florida Laboratory. The same purposes are served by sealing the serum specimen. The procedures prescribed in the 2010 Manual for the collection of whole blood and the processing of the whole blood into serum were followed when the blood samples from the horses trained by Ms. Pompay were taken on February 20, 2016, and May 13, 2016. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in subsection 4.6 of the 2010 Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the 2010 Manual provided: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. The opening of the blood tubes, the pouring of the serum from the blood tubes into the evergreen tube, and the sealing of the evergreen tube was witnessed by two Division employees: a chief veterinary assistant or detention barn supervisor who pours the serum from the blood tubes to the evergreen tubes and another employee who observes the process. In the proposed recommended orders referred to in paragraphs 14 and 15 above, a specific finding of fact was made that the 2001 version of rule 61D-6.005 did not make reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape or the freezing of the specimen. The state veterinarian who took the blood sample from R Bling Shines and Run Saichi signed PMW Form 504, a Daily Record of Sample Collection, indicating that this was done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it (under the observation of another detention barn employee). Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. There is no signature indicating the time the state veterinarian leaves the samples at the detention barn or the time the chief veterinary assistant opens the collection tubes and transfers the serum. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the taking of the urine and blood samples. In fact, since the change in rule 61D-6.005 in June 2015, no owner’s witness has refused to sign the sample tag. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the sealing of the urine specimen in its container, but before the whole blood was processed into blood serum, the blood serum was poured into the serum container, and the serum container was sealed. The pouring of the collection tubes into specimen containers takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an authorized witness to remain until the serum specimens were sealed. The sampling procedures set forth in the 2010 Manual and the sampling procedures in use under the 2016 Guidelines are important to the Division, to the trainers, and to the public. These sampling procedures affect the substantive rights of the trainers as they are the "absolute insurer" of the horse’s condition when it races. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in subsection 4.6 of the 2010 Manual were never discussed at a rule-making hearing. These procedures are not part of rule 61D- 6.005, adopted in 2001, nor are they part of rule 61D-6.005 as amended in 2015. Until it was superseded by the 2016 Guidelines, the 2010 Manual applied to every state-licensed horse racing facility in the State of Florida. It was a policy attributable to the Division. Amendments to rule 61D-6.005, effective June 15, 2015, to eliminate all references to the sealing of the blood serum specimen, left the 2010 Manual provisions establishing policy on extracting and sealing the serum specimen without support in statute or adopted rule. After the amendments to the rule, the provisions of the 2010 Manual requiring extraction and sealing of the serum specimen were generally applicable Division policy that created rights important to a trainer. These provisions constituted an unadopted rule. The established procedures pursuant to applicable law and administrative rule referenced by the 2016 Guidelines, which Division employees are required to follow, are the procedures that were set forth in the 2010 Manual. These procedures for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample, and the mailing of the specimen to the laboratory survive as de facto policies of the Division notwithstanding the "repeal" of the 2010 Manual. The de facto Division policy regarding extraction and sealing of serum specimens affect rights important to trainers and has the direct and consistent effect of law. Division employees do not have the discretion not to follow the de facto Division policy regarding extraction and sealing of serum specimens. The de facto Division policy regarding extraction and sealing of serum specimens constitutes an unadopted rule.
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 issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent is guilty of the offenses alleged in the Order of Summary Suspension and in the Administrative Complaint.
Findings Of Fact The Division is the agency of the State of Florida charged with regulating pari-mutuel wagering pursuant to Chapter 550, Florida Statutes. At all times relevant to this proceeding, Respondent held a pari-mutuel wagering trainer/thoroughbred license number 15043-1021 issued by the Division. Respondent has been a thoroughbred racehorse trainer for approximately 30 years. Excluding the allegations pertaining to this proceeding, Respondent has had only two prior disciplinary actions taken against his license by the Division. Each of the prior disciplinary actions involved the post-race detection of a drug in a horse trained by Respondent. Although the drug at issue in the prior disciplinary proceedings cannot be in a horse’s system during a race, those drugs can legally be administered to race horses for therapeutic use. Neither violation resulted in a suspension of Respondent’s license. At all times relevant to this proceeding, Respondent trained horses that raced at Calder Race Course in Dade County, Florida. It is undisputed that at all times relevant to this proceeding, Respondent was the trainer of record for the race horses “Red Nation,” “Shea Stadium,” and “Mi Corredora.” As the trainer of record, Respondent was the absolute insurer for the condition of his horses.4 RED NATION It is undisputed that Red Nation was entered in the seventh race at Calder on May 17, 2008, and finished the race in first place. Following the seventh race at Calder on May 17, 2008, a urine sample and a blood sample were taken from Red Nation.5 Urine sample 407762 was collected on May 17, 2008, and processed in accordance with established procedures. Urine sample 407762 was analyzed by the University of Florida Racing Laboratory (the Lab), which is retained by the Division to test urine and blood samples from animals racing at pari-mutuel facilities in Florida.6 The Lab found that the sample contained Despropionyl Fentanyl (the subject metabolite derivative), which is a metabolite derivative of Fentanyl (the subject drug). The subject metabolite derivative is the substance that remains in the urine after the horse’s body has processed the subject drug. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. SHEA STADIUM It is undisputed that Shea Stadium was entered in the sixth race at Calder on November 20, 2008, and finished the race in second place. Following the sixth race at Calder on November 20, 2008, a urine sample and a blood sample were taken from Shea Stadium. Urine sample 423241 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 423241 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. MI CORREDORA It is undisputed that Mi Corredora was entered in the third race at Calder on November 22, 2008, and finished the race in first place. Following the third race at Calder on November 22, 2008, a urine sample and a blood sample were taken from Mi Corredora. Urine sample 424032 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 424032 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 5.7 nanograms per milliliter. SUMMARY SUSPENSION On February 4, 2009, the Division issued an Order of Summary Suspension of Respondent’s licensure pursuant to Section 550.2415(3(b), Florida Statutes. The Division contends in the Order of Summary Suspension and in the Administrative Complaint that urine sample 407762 was taken from Red Nation, that urine sample 423241 was taken from Shea Stadium, and that urine sample 424032 was taken from Mi Corredora FENTANYL The subject drug is a narcotic analgesic. The effect of the subject drug on a horse is dose dependent. A lower dose, 8 milligrams or less, stimulates a horse and makes the horse run faster. The subject drug was the drug of choice in the 70’s and early 80’s for “hopping” a horse to make it run faster. A dose above 8 milligrams causes the horse to lose coordination, which slows the running of the horse. After testing became more sophisticated, the subject drug lost its popularity. The subject drug has been designated by the Association of Racing Commissioners International as a Class 1 drug. Class 1 drugs have the highest potential to impact the performance of a horse in a race and they have no therapeutic value in a racehorse. The subject drug is not approved for use in horses in the United States by the U.S. Food and Drug Administration. A nanogram is one-thousandth of a microgram. A microgram is one-thousandth of a milligram. There was no evidence as to whether the levels of the subject metabolite derivative detected in the subject urine samples would have had an impact to the performances of these racehorses in the subject races. The testimony of Dr. Sams established that all appropriate protocols were followed in testing the three urine samples at issue in this proceeding. The testing procedure used by the Lab is considered to be, as phrased by Dr. Sams, the gold standard for the identification of drugs in urine. The presence of the subject metabolite derivative in each of the three urine samples at issue in this proceeding established that the subject drug had been administered to each horse from which one of the subject samples had been drawn. The Lab thereafter submitted a report to the Division reflecting that the three urine samples at issue in this procedure had tested positive for the subject metabolite derivative. The report identified each sample only by the sample number. The Lab had no information to identify a sample by the name of the horse or trainer. POST-RACE SAMPLING Florida Administrative Code Rule 61D-6005 governs the post-race sampling process and provides, in relevant part, as follows: The winner of every race and other such racing animal participants the stewards, judges, division, or track veterinarian of the meet designate, shall be sent immediately after the race to the detention enclosure for examination by the authorized representative of the division and for the taking of urine, blood or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. . . . * * * The owner, trainer of record, groom, or other authorized person shall be (present in the testing enclosure) able to witness when urine, blood or other specimens are taken from that person’s racing animal. The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. The racing animal and authorized person shall remain in the detention enclosure until the sample tag is signed. Said specimens shall be maintained in such a manner as to preserve the integrity of the specimen. Specimen containers shall be of the disposable type and shall not be reused. Only those persons stated in subsection (3) of this rule shall be admitted at any time to the detention enclosure except the division staff immediately in charge of such work, the stewards or judges, or such other persons as shall be authorized by the director or the division veterinarian. * * * (6) All specimens taken by or under direction of the division veterinarian or other authorized representative of the division shall be delivered to the laboratory under contract with the division for official analysis. Each specimen shall be marked by number and date and also bear any information essential for its proper analysis; however, the identity of the racing animal from which the specimen was taken or the identity of its owner, trainer, jockey, stable, or kennel shall not be revealed to the laboratory staff until official analysis of the specimen is complete. . . . Ms. Neira is an investigator who has been employed by the Division for over 20 years. In discharging her official responsibilities, Ms. Neira has observed the post-race sampling process at Calder. Ms. Neira was not present when any of the subject samples were taken and she is not the custodian of the records maintained at by the Division at Calder. Those records are taken by persons employed by the Division. Those records are maintained in a secure location that is under the supervision of a Division employee. Ms. Neira has access to those records and she utilizes those records in the discharge of her official duties. After receiving the report from the Lab pertaining to the subject urine samples, Ms. Neira followed standard investigative protocol. Ms. Neira went to the Division’s South Florida Regional Office at the North Broward Regional Service Center in Fort Lauderdale, Florida (South Region) offices where the urine specimen cards (Specimen Cards) are kept in a locked file cabinet. The Specimen Cards collected at Calder are maintained separately from Specimen Cards taken from other licensed pari-mutuel facilities. The Specimen Cards for Calder are filed by the date the sample was taken. Ms. Neira located each of the Specimen Cards at issue in this proceeding using the specimen numbers. She thereafter matched each specimen number identified as being positive by the Lab report to that specimen number’s Specimen Card. While Ms. Neira is not the records custodian for the records maintained at the South Region Office, she has access to and utilizes those records in the discharge of her official duties. Each Specimen Card at issue in this proceeding (the Division’s Exhibits 3, 6 and 9, respectively) indicates the date the sample was taken, the name of the animal, its color and age, its race, its order of finish in the race, its owner, its trainer, the name of the person taking the urine sample, the names of the witnesses (including the owner’s witness), and the horse's tattoo number (taken from the horse’s upper inside lip). Each Specimen Card is a state record maintained in the regular course of business. The subject Specimen Cards established that urine sample 407762 was taken from Red Nation following the seventh race at Calder on May 17, 2008; that urine sample 423241 was taken from Shea Stadium following the sixth race at Calder on November 20, 2008; and that urine sample 424032 was taken from Mi Corredora following the third race at Calder on November 22, 2008. A form styled “State Detention Area Security Log” (Security Log) is kept at Calder in the regular course of business. Those Security Logs reflect the dates and times people and horses enter and exit the secure State Detention Area (the Detention Area). The Security Logs are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to those Security Logs in the discharge of her official duties. A document styled “Daily Record of Sample Collection for Race Horses” (Sample Record) is also kept at Calder in the ordinary course of business. Sample Records are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to the Sample Records in the discharge of her official duties. Following each race, the horses that must be tested are tagged by a veterinarian’s assistant (vet assistant) who tags the animal with an identifying tag and escorts the animal and the trainer’s representative7 to the Detention Area. After a cool-down period, the vet assistant takes the urine sample from the horse and the state veterinarian takes the blood sample from the animal. The state veterinarian and the vet assistant are employees of the Division. The urine sample and the blood sample are taken in the presence of witnesses, one of whom is the trainer’s representative. At that point the Specimen Card discussed above is filled out. The trainer’s’ representative signs the specimen card. The horse and the trainer’s representative are then released from the Detention Area. The Security Log for May 17, 2008 (the Division’s Exhibit 2), reflects that Andrew J. Mitchell entered the Detention Area with Red Nation following the seventh race at 3:10 p.m. and that he left the Detention Area with Red Nation at 3:50 p.m. The subject Sample Record (the Division’s Exhibit 4) reflects that Red Nation’s urine sample and blood sample were taken on that date at 3:50 p.m. Red Nation was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 407762. On May 17, 2008, Mr. Mitchell acted as Respondent’s representative. Mr. Mitchell signed the Specimen Card admitted into evidence as the Division’s Exhibit 3 as the trainer’s representative. Urine sample 407762 was taken from Red Nation on May 17, 2008, following the seventh race at Calder. The Security Log for November 20, 2008 (the Division’s Exhibit 7) reflects that Victor H. Flores entered the Detention Area with Shea Stadium following the sixth race at 3:00 p.m. and that he left the Detention Area with Shea Stadium at 3:40 p.m. The Sample Record (the Division’s Exhibit 9) reflects that Shea Stadium’s urine sample and blood sample were taken on that date at 3:50 p.m. Shea Stadium was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 423241. On November 20, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 8. Urine sample 423241 was taken from Shea Stadium on November 20, 2008, following the sixth race at Calder. The Security Log for November 22, 2008 (the Division’s Exhibit 12) reflects that Victor H. Flores entered the Detention Area with Mi Corredora following the third race at 1:30 p.m. and that he left the Detention Area with Mi Corredora at 2:00 p.m. The Sample Record (the Division’s Exhibit 14) reflects that Mi Corredora’s urine sample and blood sample were taken on that date at 2:00 p.m. Mi Corredora was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 424032. On November 22, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 13. Urine sample 424032 was taken from Mi Corredora on November 22, 2008, following the third race at Calder. Each of the urine samples at issue in this proceeding was subjected to a split testing procedure as required by Section 550.2415(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is, further, RECOMMENDED that the Final Order uphold the Order of Summary Suspension. It is, further, RECOMMENDED that the Final Order find Respondent guilty of the three counts alleged in the Administrative Complaint; impose against him an administrative fine in the amount of $1,000.00 per count (for a total of $3,000.00); suspend his licensure for a period of one year from the date of the emergency suspension; and require him to return any purse won by the horses at issue for the races at issue. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of May, 2009.
