The Issue The issues in this case are as follows: (1) whether Petitioner has standing to request a formal hearing in this case; and, if so, (2) whether Respondent is in violation of Section 120.54(1), Florida Statutes, for failure to comply with rulemaking requirements with respect to its statements and policies regarding the analysis and approval of the solutions and/or sources of solutions used to test the accuracy of evidentiary breath test instruments utilized in the Implied Consent Program; and (3) whether Rules 11D-8.002(1) and 11D- 8.006(2), Florida Administrative Code, and FDLE/ATP Form 16, which is incorporated by reference, constitute invalid exercises of delegated legislative authority
Findings Of Fact In Florida, it is unlawful to drive or to be in actual physical control of any motor vehicle while under the influence of alcohol beverages when affected to the extent that the person's normal faculties are impaired. Section 316.193(1)(a), Florida Statutes. A person is presumed guilty of driving under the influence (DUI) if the person has a breath alcohol level of 0.08 or more grams of alcohol per 210 liters of breath (g/210L). Section 316.193(1)(c), Florida Statutes. Any person who accepts the privilege of operating a motor vehicle within Florida is deemed to have given consent to submit to a breath test for the purpose of determining the alcohol content of his or her breath if lawfully arrested for DUI. Failure to do so results in the suspension of a person's driver's license and the failure to consent is admissible into evidence in any criminal proceeding. Section 316.1932(1)(a), Florida Statutes. Tests determining the weight of alcohol in a person's breath must be administered in accordance with FDLE's rules. Section 316.1932(1)(f), Florida Statutes. Breath test results are considered valid if performed substantially according to methods approved by FDLE. Section 316.1932(1)(b)(2), Florida Statutes. The results of breath tests administered in accordance with Chapter 316, Florida Statutes, are admissible in any civil or criminal proceeding arising out of acts alleged to have been committed by any person while driving under the influence of alcohol. Section 316.1934(2), Florida Statutes. The Florida Legislature has established certain presumptions and incremental penalties, which are dependent upon the results of breath-alcohol tests administered pursuant to Chapter 316, Florida Statutes. A breath-alcohol level in excess of 0.08 g/210L or higher is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, a person who has a breath-alcohol level of 0.08 or higher is guilty of DUI. Sections 316.1934(2)(c) and 316.193(1)(c), Florida Statutes. A breath-alcohol level of 0.05 g/210L or less creates a presumption that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties ere impaired. Section 316.1934(2)(a), Florida Statutes. If a breath-alcohol level is in excess of 0.05 but less than 0.08, no presumption arises; however, the level may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Section 316.1934(2)(b), Florida Statutes. Persons with breath-alcohol tests of 0.20 g/210L or higher are subject to greater fines and terms of imprisonment than persons with breath-alcohol tests of 0.08 g/210L. Section 316.193(4), Florida Statutes. The penalties for being found guilty of the offense of DUI are set forth in Section 316.193, Florida Statutes. These penalties include fines of $250 to $5,000, terms of imprisonment from six months to one year, and terms of probation and the performance of public service or community work projects. The driver's license of a person who is arrested for a violation of Section 316.193, Florida Statutes, or a person who has refused to submit to a breath test, is suspended, pursuant to Section 316.2615, Florida Statutes. FDLE has adopted Chapter 11D-8, Florida Administrative Code, to implement the statutory Implied Consent Program. The purpose of these rules, in part, is to establish procedures, techniques, approved methods, criteria, and standards to ensure the accuracy and reliability of the evidential breath-testing instruments utilized to test the alcohol content of the breath of persons suspected or charged with DUI. To that extent, FDLE adopted rules specifying the method of breath-testing (infrared), the specific machine approved for evidential use (CMI, Inc. Intoxilyzer 5000 Series), and the criteria by which other manufacturers could receive approval for a different type or model instrument for use in Florida. Rule 11D-8.003, Florida Administrative Code. In order to ensure that individual breath- test results are reliable and accurate, FDLE established rules requiring that each machine be inspected when initially received, when moved to a different agency, and on an annual and a monthly basis. Rules 11D-8.004 and 11D-8.006(1), Florida Administrative Code. An FDLE inspector conducts the annual inspections of the breath-testing machines. A local law enforcement inspector conducts the monthly inspections. In each instance, a simulator solution is used to replicate a human's breath at each of the three statutorily specified alcohol concentrations--0.05 g/210L, 0.08 g/210L, and 0.20 g/210L. The instrument is deemed accurate and reliable, thus remaining in service, if the inspection results fall within the ranges described in Rule 11D-8.002(1). Florida Administrative Code. The ranges set forth in the rule are discussed below. Petitioner resides in Florida and currently possesses a valid Florida driver's license. He typically drives in the state for both personal and business uses. On February 17, 1998, a police officer stopped Petitioner while he was operating a motor vehicle. Petitioner was arrested and, as a result of that arrest, was administered a breath test to determine the amount of alcohol on his breath. Petitioner provided two breath samples indicating a breath- alcohol level of 0.09 g/210L for each sample. Petitioner was charged with the offense of DUI and required to give a cash appearance bond. As a result of his DUI charge, Petitioner's driver's license was administratively suspended for six months. Petitioner did not appear at the administrative hearing on his suspension, and has no knowledge of the arguments made on his behalf for the return of his license. Petitioner received his license back on August 19, 1998. He pled not guilty to the charge of DUI and is currently awaiting his criminal trial on that charge. Petitioner is aware of or believes the following: (1) his breath-test results are a matter of public record; (2) the results of his test may be used against him in a civil suit; (3) the results of his test may be used against him in his upcoming criminal trial for DUI; (4) if he is found guilty of DUI, he could be subject to a fine, probation, and a loss of his driver's license for a period of six months to a year; (5) he will not be able to haul his hotdog cart to work if his license is suspended; (6) he is not guilty and the results of his breath tests are not right. Officer Kenneth Guthrie is employed by the Jacksonville Sheriff's Office as a correctional officer. He has been a certified breath-test operator for approximately two years. Officer Guthrie follows FDLE/ATP Form 23, Operational Procedures Checklist, when he performs a breath test on a subject. He has followed that procedure for every individual that he has tested. Officer Guthrie performed a breath test on Petitioner after he was arrested on February 17, 1998. Officer Guthrie used the Intoxilyzer 5000 Series instrument, serial number 66-002726, to perform this test. Officer Guthrie completed steps one through twelve of the checklist when he performed Petitioner's test. Officer Robert Thomason has been employed by the Jacksonville Sheriff's Office for eight years. Officer Thomason is certified by FDLE to perform the monthly inspections on the Intoxilyzer 5000 Series instruments in the custody of the Jacksonville Sheriff's Office. In performing the monthly inspections, Officer Thomason follows a step-by-step procedure set forth in FDLE/ATP Form 16. The form is adopted by reference in Rule 11D-8.003(7), Florida Administrative Code. Its use is required in Rules 11D-8.004(1) and 11D-8.006(1), Florida Administrative Code. The form requires Officer Thomason to utilize an "approved alcohol reference solution" (ARS) in making his inspections. The form does not define an "approved ARS." Officer Thomason is required to perform five series of tests on each Intoxilyzer 5000 Series instrument using a simulator: (1) one set of tests with distilled water only; (2) one set of tests with three millimeters of acetone; and (3) three sets of tests with ARS at 0.05, 0.08, 0.20 g/210L. Officer Thomason is required to perform three tests with each solution. If any one of the tests using any level of ARS is outside of the ranges set forth in Rule 11D-8.002(1), Florida Administrative Code, Officer Thomason removes the instrument from service. The Jacksonville Sheriff's Office purchases ARS from Guth Laboratories (Guth). Guth produces ARS in lots of 250 gallons and dispenses it in individual bottles containing 500 milliliters. FDLE approves each lot of ARS using the methods and procedures discussed below. Officer Thomason does not perform any test on the ARS prior to its use in the simulator. He does not usually receive anything in writing from FDLE indicating that it has approved a lot of ARS. However, Officer Thomason may request a Certificate of Assurance (COA), discussed below, from FDLE indicating that it has approved the ARS. Typically, the Intoxilyzer 5000 Series instrument is calibrated by a manufacturer's authorized repair facility. FDLE's inspectors are trained to calibrate the instruments, but do not routinely perform that duty. In order to comply with Rule 11D-8.002(1), Florida Administrative Code, the monthly tests of the Intoxilyzer 5000 Series instruments must yield results, which fall within acceptable ranges. "Acceptable range" is defined in the rule as follows: Acceptable Range -- Shall mean the observed values must fall within the following ranges at each alcohol target concentration: 0.05 g/210L range is 0.045 -- 0.055 g/210L; 0.08 g/210L range is 0.075 -- 0.085 g/210L; 0.20 g/210L range is 0.190 -- 0.210 g/210L. Rule 11D-8.002(1), Florida Administrative Code. Officer Thomason performed an agency inspection of the Intoxilyzer 5000 Series instrument at issue here, on February 1, 1998. He used ARS from lot numbers 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, 0.20 g/210L respectively. All of the results of the monthly tests that Officer Thomason performed on the subject instrument on February 1, 1998, were within the requirements of Rules 11D-8.002(1) and 11D-8.006, Florida Administrative Code, to keep the instrument in service. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.049, 0.048, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.081, 0.80, and 0.081 g/210L. The results of the test performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.197, 0.197, and 0.194 g/210L. Officer Thomason performed a second agency inspection of the subject Intoxilyzer 5000 Series instrument on February 27, 1998. Once again he used ARS from lots 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, and 0.20 g/210L respectively. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.050, 0.049, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.079, 0.080, and 0.078 g/210L. The results of these tests performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.198, 0.200, and 0.198 g/210L. When Officer Thomason prepares a simulator with ARS, he pours the ARS from its bottle into a 500-milliliter flask, then pours the contents of the flask into the jar of the simulator. He does not pour the entire bottle into the flask; there is usually a small amount of ARS left in the bottle. In order to calibrate or verify the calibration of an Intoxilyzer 5000 series instrument, the operator must provide a vapor to the instrument to simulate human breath, which includes moisture and an alcohol content. A simulator is a device designed to simulate a person's breath, providing a sample of air to the instrument, which contains the alcohol vapor of a known concentration. The operator places a solution of alcohol into the simulator device. ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature. The ARS is used to assure the accuracy, precision, and reliability of the Intoxilyzer 5000 Series instrument. The simulator device heats the ARS to a temperature of 34 degrees centigrade, plus or minus ("+/-") two degrees. Air is pumped into the bottom of the simulator and bubbled through the ARS, collecting as a vapor above the water. Back pressure is applied to the simulator and the vapor travels from the simulator to the Intoxilyzer 5000 Series instrument, which measures the alcohol content. An ARS containing 0.0605 grams of alcohol per deciliter of water (g/dL) replicates a breath-alcohol level of 0.05 g/210L. An ARS containing 0.0968 g/dL replicates a breath-alcohol level of 0.08 g/210L. An ARS containing 0.2420 g/dL replicates a breath-alcohol level of 0.20 g/210L. The conversion factor for converting g/dL to g/210L is 1.21. For example, 0.0605 g/dL divided by 1.21 equals 0.05 g/210L. Alcohol is completely miscible in water; it mixes in all proportions. When a small amount of ethanol is mixed with a large amount of water, it is readily distributed and becomes homogeneous within a very short time. Once the ARS is mixed, it will stay miscible until some heroic measure is taken to separate the alcohol and water. Alcohol stock solution is concentrated alcohol solution, which must be mixed with a known quantity of water to create ARS. If FDLE did not provide law enforcement agencies with an approved ARS source, it could produce and provide the local agencies with stock solution. As a matter of practice since January of 1997, FDLE no longer prepares alcohol stock solution or provides it to the local agencies. Instead, FDLE arranges for the supply and purchase by all law enforcement agencies of a premixed ARS from an approved source. "Source" means the entity from which the agencies must order ARS. The term "approved source" is not defined in Rule 11D-8.006(2), Florida Administrative Code. FDLE's criteria and standards for the selection of the source include the following: (1) the size of the ARS lots available; (2) standards related to the entity's facilities, personnel, product, manufacturing protocol, quality assurance/control practices, and customer relations with existing accounts; and (3) whether the entity is regulated by the Food and Drug Administration. None of these criteria and standards are included in Rule 11D-8.0006(2), Florida Administrative Code. Selection of the source is an important part of the Alcohol Testing Program (ATP). FDLE is responsible for maintaining the ATP within the state of Florida. Thomas Wood has been employed with FDLE in the ATP since November of 1993. One of Mr. Wood's duties is to determine the known amount of ethanol in the ARS. As stated above, FDLE went through a process to select a source for providing ARS to the local law enforcement agencies. FDLE gave Mr. Wood the responsibility to evaluate potential vendors, and to recommend selection of a vendor for ARS. Based on Mr. Wood's recommendation, FDLE contracted with Guth as the sole source of ARS for the state of Florida. Guth, which is located in Pennsylvania, does not manufacture ARS, but acts as the distributor or vender for ARS manufactured by Steiffel Research Institute, Inc. (Steiffel), which is located in New York. Mr. Wood's selection of Guth as the source was based primarily upon the qualifications of Steiffel. The contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. FDLE has the right to reject any lot that does not meet the contract specifications. If Guth consistently provided lots of ARS that FDLE rejected, the agency could contract with another source. Prior to any lot of ARS being distributed for use by the local agencies, Mr. Wood analyzes each lot to determine if it is in compliance with the department's specifications, using specified procedures, criteria, and standards. Guth supplies the samples for this pre-distribution analysis, ten bottles from each lot. After each lot is distributed to law enforcement agencies, Mr. Wood acquires ten bottles of each lot from various local law enforcement agencies for a post-distribution analysis, using the same procedures, criteria, and standards as the pre- distribution analysis. Each ARS sample in the pre-distribution analysis and the post distribution analysis is analyzed using gas chromatography ("GC"). The ARS used to test the accuracy, precision and reliability of breath-testing instruments in Florida is one of the foundations of the ATP. It is extremely important for the ARS to replicate the target values of 0.05, 0.08, and 0.20 g/210L. The accuracy of the breath-testing machine depends in large part upon the accuracy of the ARS. FDLE has no promulgated rule setting forth the procedures, criteria or standards utilized by FDLE for the approval or rejection of ARS. Companies other than Guth, who wish to become a source of ARS for Florida, would have to contact FDLE to determine the procedures, standards and criteria, which Florida uses to approve ARS. These procedures, standards and criteria are set forth in COAs created and utilized by Mr. Wood. The COAs detail the methodology that he uses to analyze sample bottles from each new lot of ARS. The COAs set forth the criteria, which the samples of ARS must meet before Mr. Wood will approve a lot for use in Florida. The COAs set forth acceptable ranges of alcohol content within which the samples must fall before Mr. Wood approves a lot of ARS. They summarize the data that Mr. Wood collects when he performs a GC analysis of a lot of ARS. The COAs describe FDLE's practice requirement regarding the criteria and specifications for accepting or rejecting each ARS lot. FDLE has followed this practice without deviation since the ATP started in January of 1997. As noted above, ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a "mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature." There is no way to determine what the word "known" means in that definition without reference to the COAs, particularly the ranges of acceptability described therein. The only way to determine the meaning of "known" is to use the process described in the COAs. In fact, the criteria in the COAs are part of the definition of ARS contained in Rule 11D-8.002(8), Florida Administrative Code. Thus, the COAs are very important and necessary in order to determine the meaning of the rule. FDLE approves ARS to replicate a 0.05 g/210L breath- alcohol level if the average test results of that solution fall between 0.0565 g/dL and 0.0645 g/dL, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0605 g/dL is +/- 0.004 g/dL, which yields a 6.6% variation or percentage of error. FDLE approves ARS to replicate a 0.08 g/210L breath- alcohol level if the average test results of that solution fall between 0.0928 g/dL and 0.1008 g/dL of ethanol, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0968 g/dL is +/- 0.004 g/dL, which yields a 4.1% variation or percentage of error. FDLE approves ARS to replicate a 0.20 g/210L breath- alcohol level if the average test results of that solution fall between 0.2320 g/dL and 0.2520 g/dL of ethanol, a range of 0.020 g/dL. The allowed variation around the target ARS concentration of 0.2420 g/dL is +/- 0.010 g/dL, which yields a 4.1% variation or percentage of error. Mr. Wood set the percentage of error for FDLE to accept or reject lots of ARS based on scientifically accepted practice. He set a range that would provide accurate, precise, and reliable results for breath testing in the state of Florida. As stated above, the contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. The selection range in Guth's contract specification is less than FDLE's selection range to better assure that the solution will remain within the department's approval range. There is a difference of opinion within the scientific community regarding the acceptable percentage of error for the alcohol content of ARS that is used to inspect breath-testing machines for accuracy. The National Safety Council, Committee on Alcohol and Other Drugs, recommends the use of a percentage of error of 2%. Dr. Bruce Goldberger, an expert in forensic toxicology, recommends setting the percentage of error for ARS at 3%. Mr. Wood acknowledges that he could have set the percentage of error for ARS provided by Guth and approved by FDLE at 2% or 3%, or whatever he felt was appropriate. If the allowable range of error is too large, and a machine is inspected with an ARS that has an alcohol content at the extreme low-end of that range, an improperly calibrated machine might be approved for use. Nevertheless, the percentages of error that Mr. Wood set for Guth (3%) and FDLE (6.6% and 4.1%) are scientifically reasonable and will not have a significant impact on the validity and reliability of breath-test results. The COAs require ten bottles of a lot of ARS to conduct a GC analysis. Ten bottles are necessary to get a proper sample representation and to permit the rejection of some bottles without invalidating the test results. In preparation for GC analysis, three sub-samples from each simulator solution bottle must be combined in a GC vial. Three vials must be prepared from each ARS bottle. According to the COAs, the GC vial ethanol concentrations from each analyzed simulator solution bottle are averaged to yield an estimated concentration for each bottle. The sample bottles received and the data obtained must meet the following criteria for a lot of simulator solution to be approved for use in Florida: (1) Eight or more of the ten simulator solution bottles received must be suitable for analysis; (2) Two of the three GC autosampler vials must provide an analytical result for each bottle; (3) The difference between any two analytical results for a bottle must be 0.0040g/dL or less for 0.050 and 0.080 g/210L solutions and 0.0100 g/dL or less for 0.20 g/210L solution; (4) Six or more of the analyzed simulator solution bottles must provide an average result; and (5) All average results must fall on or between the ranges set forth above in paragraphs 43-45. When Mr. Wood performs a pre- or post-distribution analysis, he uses a calibrator solution to calibrate the GC. He performs this calibration by injecting a known amount of alcohol into the GC and noting the response. He then injects a different known amount of alcohol into the GC and notes the response. Finally, he constructs a calibration curve, drawing a line through the curve to determine the amount of alcohol for an unknown concentration. To calibrate the GC, Mr. Wood uses reliable known alcohol concentrations from commercial vendors. The solutions meet the standards of the National Institute of Standards and Technology (NIST). The scientific community considers these solutions to be highly accurate. The GC analysis is a very specific, very accurate, precise test to certain limits within a relatively small standard deviation. This means that a GC analysis of 30 vials of an ARS solution will result in slightly different readings of the amount of ethanol content in each vial, even though the actual ethanol content in each vial is the same. Analytical variation is built into the GC measurement process. The GC's ability to make fine distinctions in the amount of alcohol, together with its sensitivity to other testing variables or errors accounts for the range of variation. In a GC analysis, the exact or actual concentration of alcohol in ARS depends upon the limits that are established to make that determination. Determining a mean, which is an average value for a series of tests, and calculating the standard deviation sets the limits. It is possible in the scientific community to obtain exact concentrations of alcohol in ARS. NIST has the ability to make such determinations. The extreme measures taken by NIST cost tens of thousands of dollars. NIST uses a multitude of techniques that are not commonly available. Such extreme measures are not necessary to verify the alcohol content of ARS used to inspect the Intoxilyzer 5000 Series instrument. When the Intoxilyzer 5000 Series instruments are initially placed in service, or subjected to major maintenance, they are calibrated using NIST reference solutions. The purpose of ARS is to verify the calibration of the machines. ARS is not used to calibrate them. The Intoxilyzer 5000 Series instrument has a limit on its ability to measure the alcohol content of a person's breath at any given time. It is not intended to measure exactly a person's breath-alcohol concentration at a specific time; the machine measures a person's breath-alcohol level within a range. In order to ensure the validity of a breath test, Rule 11D- 8.002(16), Florida Administrative Code, states as follows: (16) Breath Alcohol Test -- Shall mean, the analyses of a minimum of two samples of breath collected within fifteen minutes, and the results reported as the alcohol level based upon grams of alcohol per 210 liters of breath. To be acceptable as a valid breath test, the two results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. If the results of the first and second sample are more than +/- 0.020 g/210L apart, a third sample shall be analyzed. To be acceptable as a valid breath test, any two of three results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. In the event the person tested refuses or fails to provide the required number of valid breath samples, than this event shall constitute a refusal. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level. The manufacturer sets the limits of the Intoxilyzer 5000 Series instrument as accurate to +/- 0.005 of a breath- alcohol concentration or 5% of the breath-alcohol concentration, whichever is greater. The manufacturer's specifications are consistent with the limits set by the National Highway Traffic Safety Administration (NHTSA). NHTSA is the federal agency that approves evidential breath-test devices. NHTSA publishes its standards and a list of approved devices in the Federal Register. The definition of "Acceptable Range" set forth in Rule 11D8.002(1), Florida Administrative Code, coincides with the NHTSA standards. During the pre-distribution analysis of ARS lot number 97180, the target value was 0.0605 g/dL. The minimum average observation for any sample bottle was 0.0604 g/dL. The maximum average observation for any sample bottle was 0.0622 g/dL. The mean of the samples was 0.0612 g/dL. During the pre-distribution analysis of ARS lot 97190, the target value was 0.0968 g/dL. The minimum average observation for any sample bottle was 0.0965 g/dl. The maximum average observation for any sample bottle was 0.0980 g/dL. The mean of the samples was 0.0972 g/dL. The difference between the mean concentration and the target concentration of the samples of ARS lot 97190 is +0.0004 g/dL. If one divides 0.0004 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0041 g/dL, which is equivalent to a 0.41% variation from the target concentration. The difference between the average minimum observed concentration and the target concentration of the samples of ARS lot 97190 is 0.0003 g/dL. If one divides 0.0003 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0031 g/dL, which is equivalent to a 0.31% variation from the target concentration. During the pre-distribution analysis of ARS lot 97200, the target value was 0.2420 g/dL. The minimum average observation for any sample bottle was 0.2420 g/dL. The maximum average observation for any sample bottle was 0.2453 g/dL. The mean of the samples was 0.2438 g/dL. If the value of an ARS used to perform a monthly inspection is higher than the target value, the results of the Intoxilyzer 5000 Series instrument could be less than the range of accuracy of the instrument. The sampling methodology set forth in the COAs provides for the averaging of sample results. An individual sample could result in a GC measurement of alcohol content below the lowest average value of the range established by the COAs. For example, the COA for ARS with an alcohol content of 0.08 g/210L allows a lot to be approved if one or more of the individual samples measure as low as 0.0908 g/dL on the GC. This is true even though the lowest average limit of the range is stated as 0.0928 g/dL. Dividing 0.0908 g/dL by the conversion factor of 1.21 results in a quotient equivalent to 0.075g/210L. If a machine is inspected with ARS containing a 0.075 g/210L concentration of ARS and if the machine provides a result of 0.085 g/210L, the machine is deemed acceptable and reliable under the provisions of Rule 11D-8.002(1), Florida Administrative Code. If a person with an actual breath-alcohol content of 0.070 g/210L was tested on that machine, his or her breath-test result would be 0.08 g/210L. In theory, this same logic would apply to all three ARS alcohol concentration levels. However, there is no evidence that a person with an actual breath-alcohol of 0.070 g/210L ever produced a breath-test result of 0.08 g/210L under these circumstances. There is only a very remote possibility that this type of scenario could occur.1 In fact, Petitioner produced a breath-alcohol reading of 0.09 g/210L; therefore, the actual content of alcohol in his breath could not have been lower than 0.08 g/210L. Absent the effects of averaging the samples described above, an ARS meeting the lowest value of the acceptable ranges set forth in the COA, when used on a high-reading machine, could produce results which exceed the ranges for machine accuracy set forth in Rule 11D-8.002(1), Florida Administrative Code. For example, the lowest stated value of the acceptable range in the COA for 0.08 g/210L simulator solution is 0.0928 g/dL, which equates to 0.077 g/210L. If that ARS produces a result of 0.085 g/210L on a high reading machine, there is a variation of 0.008 g/210L, while the machine range rule allows a variation of only a plus or minus 0.005 g/210L. To that extent, the standards and criteria set forth in the COA could produce results that exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. Under these circumstances, a person with an actual breath-alcohol level of 0.077 g/210L could receive a breath-test result of 0.085 g/210L. Such an occurrence is only a remote possibility. There is no evidence that an ARS has been responsible for producing such results.2 Moreover, Petitioner's breath-test result of 0.09 g/210L under these facts would mean that his actual breath-alcohol level was 0.082 g/210L. The facts of this case are clearly different from the facts set forth in paragraphs 68 and 69. Under no circumstances is Petitioner the victim of a worst case scenario like the ones described above. There is no evidence that the machine used to test his breath-alcohol level was improperly calibrated, yielding breath-alcohol readings of 0.08 g/210L or higher when his actual breath-alcohol was below that level. There is no evidence that the ARS used to inspect that machine had an alcohol content at a sufficiently low level of the acceptable range for 0.08 g/210L simulator solution to result in a reading of 0.08 g/210L or higher when the actual breath-alcohol was below that level. The highest Intoxilyzer 5000 Series instrument reading using ARS lots 97180, 97190, and 97200, and therefore in the best light of the Petitioner, were 0.050, 0.81, and 0.200 g/210L respectively. The mean values of the ARS were 0.0612, 0.0972, and 0.2438 g/dL, respectively. Using the mean values of the ARS, the highest actual machine readings, and a recorded breath-test result of 0.09 g/210L, the actual breath-alcohol level to achieve that result would be 0.091, 0.089, and 0.091 g/210L respectively. Using the minimum observed average levels of the ARS at each level and the highest actual machine readings, the results are clear. The minimum observed average values of the ARS were 0.0604, 0.0965, and 0.2429 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.090, 0.089, and 0.090 g/210L. One does not arrive at a different result using the lowest individual sample values at each level and the highest actual machine readings. The lowest individual sample values of ARS were 0.0602, 0.0960, and 0.2421 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.0898, 0.0883, and 0.0901 g/210L. The result is the same when one uses the lowest individual sample values at each level (0.0602, 0.0960, and 0.2421 g/dL) and the highest possible machine readings (0.055, 0.085, and 0.210 g/210L. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.084, 0.0843, and 0.0809 g/210L. Similarly, the facts of this case do not indicate that the GC analysis of ARS lot 97190 yielded results for 0.08 g/210L simulator solution which exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. According to the COA, the lowest average value for that solution is 0.0928 g/dL, which converts to 0.0767 g/210L. The highest actual machine reading, and therefore in the best light of Petitioner, was 0.081 g/210L. The difference between 0.0767 g/210L and 0.081 g/210L is 0.0043 g/210L, which is well within the rule's allowable range of .005 g/210L. The same holds true when one uses the value for the lowest individual sample in ARS lot 97190 and the highest actual machine reading. The lowest individual sample was 0.0960 g/dL, which converts to 0.0793 g/210L. The highest actual machine reading was 0.081 g/210. The difference between the two is 0.0017 g/210L, which is less than 0.005 g/210L. The results are no different when the same calculations are performed for ARS lots 97180 and 97200.
The Issue Whether Respondent Terri Medus (Respondent) engaged in an act of immorality, conduct that violates Orange County public school policy, conduct that violates the Code of Ethics, conduct that violates the Principles of Professional Conduct of the Education Profession, or conduct that compromised her effectiveness as an educator.
Findings Of Fact Stipulated Facts During all times relevant hereto, Petitioner employed Respondent as a classroom teacher. Respondent has held a Professional Service Contract with Petitioner since May 1986. Respondent's Professional Service Contract states that Respondent will not be terminated "except for just cause," as provided by Florida Statutes. Respondent pled no contest to a driving under the influence (DUI) charge stemming from an arrest on March 26, 2014, and was adjudicated guilty, in accordance with section 316.656, Florida Statutes. Petitioner did not discipline Respondent for the DUI arrest or subsequent adjudication. Reasonable Suspicion Respondent admits that prior to December 1, 2014, she was aware of Petitioner’s drug-free workplace policy (Policy) and that she could be disciplined for reporting to work under the influence of alcohol. December 1, 2014, fell on a Monday. On Saturday, November 29, 2014, Respondent flew from Detroit to Orlando after visiting her son during the Thanksgiving holiday. Respondent began consuming alcoholic beverages on the plane ride to Orlando. The following day, November 30, 2014, Respondent, by her own admission, consumed between five to ten rum and Coke beverages, which resulted in Respondent becoming intoxicated. While at work on the morning of December 1, 2014, Respondent attended a 9:00 a.m. meeting. Ms. McCray, Respondent’s immediate supervisor, was also present at the meeting and sat next to Respondent. The meeting lasted approximately 10 minutes. Immediately following the meeting, Ms. McCray wanted to debrief with Respondent and another employee regarding what was discussed during the meeting. During the debriefing, Ms. McCray detected the smell of alcohol on Respondent’s breath, observed that Respondent’s hands were shaking and that her speech was slurred when she responded to questions asked, that Respondent’s body language was “a little wavering,” and that Respondent’s eyes were “glossy.” Additionally, when Ms. McCray asked questions of Respondent during the debriefing, Respondent's answers did not quite match the questions being asked by Ms. McCray. Ms. McCray repeatedly asked Respondent if something was wrong. At first, Respondent said she was fine. However, Respondent then said to Ms. McCray that she took Benadryl the night before the meeting because she could not sleep. Ms. McCray memorialized her observations of Respondent in a spiral notebook that she personally maintains. Upon concluding that Respondent was likely suffering from the effects of excessive alcohol consumption, Ms. McCray was assisted in assessing Respondent’s condition by Rafael Sanchez, who works for Petitioner as a senior manager in Petitioner’s employee relations department. Mr. Sanchez is also a trained reasonable suspicion manager. Based on his observations, Mr. Sanchez completed a reasonable suspicion checklist and noted thereon that Respondent had slurred speech, an odor of alcohol on her breath or person, an unsteady gait or lack of balance, glassy eyes, and a runny nose or sores around her nostrils. With respect to Respondent's gait, Mr. Sanchez observed Respondent walk into the side of an open door. With respect to her speech, Mr. Sanchez observed that Respondent was speaking very slowly and had difficulty articulating her words. Finally, Mr. Sanchez testified that Respondent demonstrated marked irritability when she was told she would have to be driven to a facility for reasonable suspicion alcohol testing. Petitioner was justified in requesting that Respondent submit to reasonable suspicion testing. Breathalyzer Testing After concluding that there was reasonable suspicion for testing Respondent for alcohol-related impairment, Ms. McCray drove Respondent to ARCPoint Labs, the facility used by Petitioner for reasonable suspicion drug and alcohol testing. Karen Carmona works for ARCPoint Labs as a specimen collector and has been certified as such by the U.S. Department of Transportation since 2013. Ms. Carmona was trained to operate the machine utilized to test Respondent, the RBT IV by Intoximeters.1/ Respondent’s first breathalyzer test, which was time- stamped at 11:46 on December 1, 2014, showed that Respondent’s breath alcohol content (BAC) was 0.198 G/210L. Respondent’s second test, which was time-stamped at 12:04 (18 minutes later) on December 1, 2014, showed Respondent’s BAC level at 0.188 G/210L. The operator’s manual for the RBT IV provides that “[i]f an accuracy check has not occurred within the past 31 days, an accuracy check should be run prior to running a subject test to ensure the instrument has maintained proper calibration.” An accuracy check of the RBT IV device used to test Respondent was performed on November 22, 2014, which is within the prescribed window established by the manufacturer. For the RBT IV device used to test Respondent, the accuracy check must read plus/minus .005 of the expected target value of .038. The accuracy check performed on November 22, 2014, showed a reading of .043, which is within the acceptable range established by the manufacturer. The validity of the accuracy check was confirmed by a print-out from the RBT IV device which reads “CAL CHECK OK.” If the RBT IV had produced a value outside of the parameters of the accuracy check, then the machine would have generated a printout indicating “OUT OF CAL” and it would have been necessary to perform an actual calibration of the testing device. Unlike the general accuracy check, which must fall within plus/minus .005 of the expected value of .038, an accuracy check following a calibration “should be no greater than plus/minus “.003 of the expected value if the calibration is to be considered successful.” Because the RBT IV was operating within the acceptable parameters of the accuracy check, it was not necessary to perform a calibration of the machine. Respondent’s argument that the machine was out of the acceptable accuracy range is not supported by the evidence. The RBT IV used to test Respondent on December 1, 2014, was operating within the limits established by the manufacturer. Additionally, a December 22, 2014, accuracy check of the RBT IV used to test Respondent read .042, which was also within acceptable operational limits. Ice Breakers Candy Respondent also challenges the accuracy of the breathalyzer results on the grounds that the readings cannot be trusted because prior to the administration of the test she consumed Ice Breakers candy. On cross-examination by Petitioner, Respondent’s expert, Mr. Thomas Workman, testified as follows: Q: Your opinion is that her –- that Ms. Medus eating Ice Breakers would so throw off the test that it would elevate her breath alcohol content up to .198 and .188? A: I believe it would –- it would have an effect, I don’t know the degree of the effect, but it would – it would not produce a reliable result. Q: What would be –- what would be your estimate of the degree of effect of how much it would be off? A: It could account for the entire reading or it could account for a portion of the reading, I –- I can’t say. Tr., p. 376. Mr. Workman’s also testified that one Ice Breaker “could” cause a .198 G/2101 BAC reading depending on the “amount of compound that’s in the mouth compared to the amount of alcohol that would be coming from the breath.” Tr., p. 377 Dr. Smith, Petitioner’s expert, disagrees with Mr. Workman’s opinion and testified as follows: Even if either one of those products contained any ethanol or methanol, which are the alcohol that the device is certified to measure, the 15 minute wait between the initial and this confirmation test, when she did not have anything in her mouth at all, any residual alcohol that may have been a product of the food or the gum would have completely dissipated. So it would not be — that's why we have that 15-minute wait to ensure that any residual mouth alcohol, not alcohol that is in the bloodstream, would not be measured on the confirmation test. Tr., p. 283. Mr. Workman’s opinion is rejected because by his own admission, he is unable to say with the requisite degree of reliable scientific probability that any Ice Breaker candy consumed by Respondent sufficiently compromised Respondent’s breathalyzer tests to the point of rendering the same unreliable. Respondent’s Rate of Alcohol Absorption Mr. Workman also testified that Respondent’s rate of absorption of alcohol makes it unlikely that her BAC readings were accurate. Mr. Workman’s testimony is based on numerous assumptions, none of which have adequate proof to invalidate the results of the breath alcohol test. First, Mr. Workman assumed that Respondent did not have any alcohol past midnight on November 30, 2014. Mr. Workman admitted that if the information regarding when Respondent stopped consuming alcohol was erroneous, then his assumption would be incorrect. Moreover, given the amount of alcohol admittedly consumed during the weekend by Respondent, her testimony that she stopped drinking at midnight is unreliable. As previously noted Respondent starting drinking at around noon on Saturday and continued drinking throughout the entire day on the following Sunday. Such a period of sustained drinking makes it unlikely that Respondent was cognizant of the time when she stopped drinking before retiring to bed. Second, Mr. Workman testified that his theory regarding Respondent’s metabolic rate of alcohol absorption would depend on her weight and build. However, Mr. Workman testified that he has never seen Respondent and has no idea of her actual build and weight, other than what he had been generally told by Respondent’s counsel. Additionally, Mr. Workman testified that he does not know the rate at which Respondent actually metabolizes alcohol. Dr. Smith testified there would have to be evidence of a person’s actual metabolic rate in order to perform the extrapolation suggested by Mr. Workman. There is no evidence in the record which indicates how Respondent metabolizes alcohol. As such, Mr. Workman's extrapolation is rejected as unreliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order that: Terminates Respondent’s Professional Service Contract for just cause, due to Respondent committing misconduct in office by violating Petitioner’s drug-free workplace policy; Dismisses the allegation(s) that Respondent committed an act of drunkenness; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Code of Ethics of the Education Profession in Florida; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Principles of Professional Conduct for the Education Profession in Florida; and Dismisses the allegation(s) that Respondent committed an act of immorality. DONE AND ENTERED this 7th day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of January, 2016.
The Issue Whether, in evaluating the responses to an Invitation to Bid and in making a preliminary decision to award the subject contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact At all times relevant to these proceedings, Respondent has been the duly-constituted school board for Miami-Dade County, Florida. Respondent issued the subject ITB to obtain the services of an organization to screen applicants for employment and existing employees for drug use. Screening of employees subject to the Omnibus Transportation Employee Testing Act (OTETA) was included in the subject ITB. The purpose of the subject ITB was stated as follows in paragraph 1 of the section styled “Special Conditions”: The purpose of this bid is to obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services, both to meet the general requirements for collection and drug screening services and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide. [1] Petitioner and Mercy timely filed responses to the ITB. Following the bid opening on May 23, 2006, Respondent determined that the bid award should go to Mercy, which was the low bidder. After Mercy, Petitioner was the next low bidder.2 Petitioner thereafter timely filed its notice of intent to file a bid protest, which was followed by a timely filed bid protest. Paragraph 4 of the Special Conditions Section of the ITB (paragraph 4) pertained to technical requirements and provided, in part, as follows: TECHNICAL REQUIREMENTS: The following items, which shall constitute proof of technical competency, are requested to be submitted with the bid, or within three (3) days of request: * * * Copies of the certifications/licenses of all collection site staff and laboratory staff who will be handling specimens in the chain of custody as indicated in Attachment B. A copy of the quality assurance program of the testing laboratories, which must encompass all aspects of the testing process as indicated in Attachment B and Attachment E. List all collection sites, which must include the site address and copy of the certification of each site to be considered for this bid. Number of mobile sites available and proof of compliance and/or certification of mobile sites, if applicable. When it submitted its initial response to the ITB, Mercy did not specifically respond to the items listed in subparagraphs b., c., d., and e. of paragraph 4. On May 24, 2006, Respondent wrote to Mr. Rey, Mercy’s, laboratory director and the person responsible for Mercy’s response to the ITB, requesting copies of documents responsive to subparagraphs b., c., d., and e. of paragraph 4. Mercy thereafter timely supplied the requested information. CERTIFICATION Attachment B to the ITB contained the following pertaining to certification: A laboratory must be certified by the United States Department of Health and Human Services (DHHS). DHHS has established comprehensive standards for laboratory policies, procedures, and personnel, which provide quality assurance and performance testing specific to urine testing. To be certified, a laboratory must be capable of testing for, at a minimum, the following classes of drugs: Alcohol, Marijuana, Cocaine, Opiates, Amphetamines, Barbiturates, Benodiazepines, Methaqualone, and Phencyclidines, as listed in Attachment E. There was a dispute between the parties as to whether Mercy demonstrated it had the requisite certification. That dispute is resolved by finding that Mercy demonstrated that it had the requisite certification to perform all testing other than the OTETA testing.3 Mr. Rey testified, credibly, that Mercy intended to subcontract out the OTETA testing to a laboratory certified to perform such testing. Mercy did not identify the entity that would conduct the OTETA testing, however, there is nothing in the ITB to prohibit such subcontracting and there is nothing in the ITB that would require a bidder to have such a subcontract in place at the time it submitted its response to the ITB. Further, there is no requirement in the ITB that the bidder identify the entity that would serve as the subcontractor for the OTETA testing.4 There was also a dispute as to whether the certifications provided by Mercy would suffice as certification for the contemplated collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. Mr. Rey testified, credibly, that the collection sites could be operated by Mercy pursuant to its existing certifications. MEDICAL REVIEW OFFICER Attachment B contained the following in paragraph 17 under the heading of “Compliance”: 17. Reporting and Review of Results. (The service of a Medical Review Officer (MRO) is required to review ALL [sic] test results. The MRO may NOT [sic] be an employee of the laboratory. Mercy did not identify the person or organization that would serve as the MRO in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non- responsive because Paragraph 17 is merely a statement of industry practice. The ITB did not require bidders to identify the person or organization that would serve as the MRO for the winning bidder. THIRD PARTY ADMINISTRATOR A laboratory performing the type screening contemplated by the ITB must have a third party administrator (TPA) to administer the drug testing program. As with the MRO, a TPA must be independent of the laboratory to avoid conflicts of interest. Mercy’s response did not identify the person or organization that would serve as the TPA in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non-responsive because the ITB did not require bidders to identify the person or organization that would serve as the TPA for the winning bidder. IDENTIFICATION OF COLLECTION SITES Under the heading of Collection and Screening Site Parameters in Attachment B, Technical Requirements, the ITB provides, in part, as follows: Collection and screening sites shall be accessible Monday through Friday from 8:00 to 4:30 p.m., at a minimum, and shall meet the following parameters: The following locations [sic] parameters are examples of locations, which shall comprise the areas for collection and drug screening to insure convenience for applicants and employees: Area 1. East of 27th Ave. from Flagler St. North to 215th St. Area 2. West of 27th Ave. from Flagler St. North to 215th St. Area 3. East of State Road 836, south to intersection of US 1, then south to 392nd St. Area 4. West of State Road 836, south to intersection of US 1, then south to 394th St. * * * 4. At least one site in the North end of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Mercy’s response to the foregoing was to provide specific addresses to two locations that were presently available as collection sites, to advise that it had a mobile collection site, and to provide three approximate locations where it would establish collection sites if awarded the bid. There was a dispute between the parties as to whether Mercy was responsive to the foregoing item pertaining to collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. The ITB did not require bidders to provide specific addresses for collection sites, nor did it require bidders to specify the hours of operation of each proposed collection site. The testimony of Ms. Fahmy and Ms. Jones established that Mercy adequately responded to this item of the ITB. BREATH ALCOHOL TESTING Mercy’s response to the ITB did not separately address breath alcohol testing or certification for such testing. Mercy’s response did include bid prices on specified breath alcohol testing procedures as required by the ITB. There was no requirement that Mercy provide a separate certification for breath alcohol testing. Petitioner is a TPA, not a laboratory, and is the existing provider for the drug screening services contemplated by the ITB. Petitioner intended to subcontract all laboratory work required by the ITB. Petitioner’s response to the ITB was responsive. Mercy’s response to the ITB was also responsive. Mercy committed to comply with all requirements of the ITB and it established by its responses that it had the wherewithal to meet that commitment. Mercy was the low, responsive, responsible bidder on the ITB.
Conclusions For Petitioner: Holiday Hunt Russell, Esquire The Law Offices of Holiday Hunt Russell, Chartered 1930 Harrison Street, Suite 309 Hollywood, Florida 33020 For Respondent: Stephen L. Shochet, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s bid protest and awarding the ITB to Mercy. RESERVATION OF JURISDICTION Jurisdiction is reserved to rule on Petitioner’s Motion for Attorney’s Fees and Costs following Respondent’s entry of a Final Order in this matter. DONE AND ORDERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 18th day of December, 2006.
The Issue The issue is whether Respondent is guilty of failing to practice medicine in accordance with the applicable standard of care by failing to assess adequately a patient's complaints, failing to provide an adequate diagnosis, failing to obtain a specialized consultation, and failing to pursue the appropriate treatment, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records to justify the use of Cardizem and document the drug's effect, in violation of Section 458.331(1)(m). If guilty of either of these offenses, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0048483. He is Board Certified in Emergency Medicine. On May 16, 1994, shortly after 2:00 PM, a 48-year-old male presented at the Naples Community Hospital emergency room with the chief complaints of a rapid heart rate and shortness of breath. He felt warm, but denied feeling nauseous or chest pain. He also reported that he had not had any previous cardiac problems or any head trauma. The patient's heart rate was rhythmic, though rapid at 132 beats per minute. His respiration rate was 24, and his blood pressure was 110/80. The nurse initially examining the patient applied a pulse oximeter and obtained an abnormally low reading of 70 percent on room air. The patient's grey color confirmed that this was not an erroneous reading. The nurse immediately placed the patient on oxygen. After the oxygen was started, Respondent saw the patient, whom he found not to appear sick. The patient's breathing, though rapid, was not labored. He explained that he had come to the hospital only at the insistence of his employer. Evidently, his color had quickly improved with the administration of oxygen. Thinking that this might be a case of tachycardia, which can cause a sensation of shortness of breath, Respondent appropriately ordered a chest x-ray, EKG, and cardiac labs. Respondent received the chest x-rays promptly. They were normal, precluding, among other things, a collapsed lung. The cardiac labs were also normal. Respondent ordered two more EKGs during the patient's hospitalization on May 16. The parties disagree as to the significance of the results of the three EKGs, which revealed some abnormalities. Petitioner failed to prove that the abnormalities revealed in the EKGs were material to a correct diagnosis. Respondent's expert testified that these abnormalities were common among adults and nonspecific. He added that they did not reveal that the patient was suffering from a pulmonary embolism. This detailed, unqualified testimony from an experienced physician is credited over the testimony of Petitioner's expert. Respondent ordered an intravenous access, which was established at 3:00 PM. Although still receiving oxygen, the patient's oxygen saturation was at 97 percent at 2:45 PM and 4:00 PM. Based on his tentative diagnosis of tachycardia, Respondent administered 20mg of Cardizem at 3:35 PM. Cardizem is a calcium channel blocker, which slows down the heart rate. Generally, the patient's condition improved following the administration of the oxygen. According to the nurses' notes, the patient's breathing had slowed down by 2:45 PM, and he reported that he was feeling better by 4:45 PM. Respondent saw the patient four times during his hospitalization and confirmed for himself the nurses' observations before discharging the patient by 6:00 PM. Respondent's discharge diagnosis was paroxysmal supraventricular tachycardia--resolved. He later amended the diagnosis to sinus tachycardia, but testified that he still would have discharged the patient with this diagnosis, under all of the circumstances. The patient returned to the hospital at 10:00 AM the next day, effectively dead on arrival. He had suffered an acute pulmonary saddle embolus. The sole question in this case turns on the adequacy of Respondent's diagnosis and treatment on May 16. Petitioner's expert conceded that there were no independent issues involving the adequacy of the medical records, and Petitioner's proposed recommended order makes no mention of this alleged violation. In hindsight, it is impossible to attribute to mere chance the events of May 16 when the patient died the next morning from an acute pulmonary saddle embolus. Something happened at work, and probably was still happening when the patient first arrived at the hospital, and this was related to what killed the patient the following day. However, Petitioner has not proved that whatever happened to the patient persisted long enough for Respondent to be able to diagnose it based on the data available to him on May 16 or, even if it had, that Respondent's failure to diagnose it was a departure from the applicable standard of care. The first potentially important piece of information collected by the hospital, apart from this history, was the abnormally low pulse oximeter reading. However, Petitioner failed to prove that Respondent was aware of this information, or reasonably should have been aware of this information, at the time that he was treating the patient. The hospital had recently instituted the practice, since discontinued, of separating the nurses' notes, where the low reading was recorded, from the remainder of the medical records for a patient. Ensuing pulse oximeter readings, of which Respondent was aware, were recorded in a different place in the records from the initial pulse oximeter reading. Moreover, it is unclear whether, if Respondent had been aware of the patient's abnormally low pulse oximeter reading, this knowledge would have materially changed what Respondent had to do to meet the applicable standard of care. Ensuing pulse oximeter readings were 96 and 97 percent. Prior to discharge and after discontinuation of the oxygen for a suitably long period of time to eliminate its effects, the patient's pulse oximeter reading remained in the high 90s. Petitioner's expert witness conceded that the pulse oximeter is not a diagnostic tool for a pulmonary embolism. He testified that the EKGs were not a diagnostic tool for a pulmonary embolism, but would give hints of this condition. His main argument was that the initial pulse oximeter reading of 70 percent at room air should have been followed by an arterial blood gas test, which "probably" would have been abnormal. An abnormal arterial blood gas reading should have been followed by a VQ scan, which he asserted should have been abnormal due to little emboli coming off the lungs. However, there is a large element of speculation in the testimony of Petitioner's expert concerning these two tests. It is as likely as not that the arterial blood gas results would have been normal. The VQ scan would almost certainly have been normal, as the autopsy revealed no profusion of emboli, but only an acute pulmonary saddle embolism as the cause of the patient's death. Respondent's expert conceded that a pulmonary arteriogram probably would have been useful, but, in 20 years' practice, he could not recall ordering such a test, which is relatively frequently done in large academic institutions, but not in community hospitals, due to the mortality associated with the procedure and the 2-3 percent of false negatives. Additionally, this record does not so clearly disclose the relationship between the incident on the afternoon of May 16 and the death on the morning of May 17 to permit even an inference that a pulmonary arteriogram would have detected an abnormality in the interim between these two points. Perhaps the most important fact in evaluating whether Respondent met the applicable standard of care is that the patient exhibited none of the predisposing factors for a pulmonary embolism. He had no cardiopulmonary disease. He had no chronic obstructive pulmonary disease. A cable television installer, he was not sedentary and had no stasis of the blood flow, such as from a prolonged immobilization. He was not obese. He had no relevant trauma or injury to the lower extremities. The diagnosis of a pulmonary embolism is very difficult even with predisposing factors; in the absence of such factors, the diagnosis is dauntingly difficult. As Respondent's expert testified, he has never encountered a case of pulmonary embolism without a predisposing factor. Under all of these circumstances, especially the absence of predisposing factors, Respondent's failure to order a pulmonary arteriogram or obtain a consultation was not a departure from the applicable standard of care, nor was his failure to diagnose a pulmonary embolism, if one in fact existed on May 16. Shortness of breath and rapid heart rate are nonspecific complaints. Respondent retained the patient in the hospital for four hours for observation and analysis of test results. Respondent examined the patient four times during this hospitalization. Respondent reasonably and correctly ruled out a variety of more common diseases and illnesses. Under all of the circumstances, the final diagnosis of tachycardia, which related the shortness of breath to tachycardia or possibly anxiety, was not a departure from the applicable standard of care. Petitioner has therefore failed to prove by clear and convincing evidence that Respondent failed to meet the applicable standard of care in any respect in his diagnosis or treatment of the patient on May 16.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998. COPIES FURNISHED: Gabriel Mazzeo, Senior Attorney Carol A. Lanfri, Staff Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 William Partridge Grossman, Roth and Partridge SouthTrust Bank Plaza 1800 Second Street, Suite 777 Sarasota, Florida 34236 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Dr. Marm Harris, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2018.
The Issue The issues in this case are whether Respondent violated Subsection 464.018(1)(j), Florida Statutes (2006),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Penansky has been licensed as an A.R.N.P. in Florida, having been issued license number ARNP1302962 in 1982. From 1993 through August 2006, Ms. Penansky was employed as an A.R.N.P. at the Dover Clinic of Suncoast Community Health Centers, Inc. (Suncoast). She was the primary certified nurse midwife at the facility and saw the obstetric/gynecology patients. During 2004, Carmen Laguerra, who was the office manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s breath at work and observed Ms. Penansky’s hands trembling. A couple of times, Ms. Laguerra observed that Ms. Penansky was having trouble walking at work and would put her hand on the walls to support herself. Ms. Penansky came to work at times with bruises on her arms and face. In the fall of 2004, the coordinator of medical records at the Dover Clinic asked Ms. Laguerra to observe Ms. Penansky in the medical records room. Ms. Laguerra observed Ms. Penansky murmuring to herself. Prior to 2004, Ms. Penansky had demonstrated a quiet demeanor. In 2004, Ms. Laguerra observed a change in Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and opinionated. In 2004, Yolanda Guzman, the supervisor of nurses at the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s breath and body while at work. Ms. Guzman also noticed that Ms. Penansky’s hands were trembling and that Ms. Penansky’s speech was not clear. Ms. Guzman observed bruises on Ms. Penansky’s arms and face. Ms. Guzman reported her observations to Ms. Laguerra and to Subhakrarao Medidi, M.D., who was the associate medical director at the Dover Clinic. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one time in 2004. On multiple occasions, he observed Ms. Penansky’s hands shaking. After receiving patient complaints, Dr. Medidi confronted Ms. Penansky about the smell of alcohol. Ms. Penansky denied the use of alcohol, claiming that the smell resulted from the use of mouthwash. Dr. Medidi also recalled one time, in particular, when Ms. Penansky came to work with bruises. George Hammond, the chief administrative officer at Suncoast, met with Ms. Penansky to discuss the observations of employees at the Dover Clinic. Ms. Penansky denied the use of alcohol at work. He directed Ms. Penansky to get a blood- alcohol test. She did as directed, and the result of the test was negative. Mr. Hammond directed Ms. Penansky to contact the Intervention Project for Nurses (IPN), which is the impaired practitioner program for the Board of Nursing. IPN is an independent program that monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department. Ms. Penansky contacted IPN and was referred to Martha E. Brown, M.D., for an evaluation. As part of the evaluation, Ms. Penansky underwent a drug test, which was negative for drugs and alcohol, but was considered dilute. When a drug test is dilute, it usually means that the individual tested consumed a significant amount of fluids prior to the test. Ms. Penansky advised Dr. Brown that she averaged drinking almost every day, but had stopped drinking about ten days prior to the evaluation. As a result of abstinence, Ms. Penansky told Dr. Brown that she felt better and was able to stay up later and get up earlier. Ms. Penansky advised Dr. Brown that her brother had a problem with alcohol and had not had a drink in 20 years. In a report dated November 8, 2004, Dr. Brown opined that there was suspicion for Ms. Penansky having a substance abuse problem. She recommended that Ms. Penansky enter into an abuse contract with IPN for two years with a one-year review. Ms. Penansky entered into an IPN contract in December 2004. Her participation in the program included random drug screening, joining a support group, attending Alcoholics Anonymous meetings, and being evaluated by her supervisor. During her participation in the program, she was tested for alcohol 17 times, and each time the test was negative. Ms. Penansky completed the program in one year. While Ms. Penansky was participating in the IPN program, employees at Suncoast observed positive changes in her. Ms. Penansky’s appearance and mood improved, and the tremors in her hands disappeared. On July 31, 2006, Ms. Penansky was involved in an automobile accident. As a result of the accident, she sustained some bruises to her body, which were visible to employees at the Dover Clinic. In August 2006, while Ms. Penansky was at work, Ms. Guzman again smelled alcohol on Ms. Penansky’s breath and noticed Ms. Penansky’s hands were shaky, and her speech was not normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while Ms. Penansky was at work during the same time period. In August 2006, Dr. Medidi noticed that Ms. Penansky’s hands were shaking again. Ms. Penansky denies that she had alcohol on her breath at work in either 2004 or 2006. However, both Ms. Guzman and Ms. Laguerra testified credibly that they smelled alcohol on Ms. Penansky’s breath and that the smell was different from the smell that would come from the use of mouthwash, which has a medicinal smell. Additionally, Ms. Penansky testified that in 2006 she was not using the mouthwash prior to going to work because she felt that in 2004 her fellow employees had mistaken the smell of the mouthwash for the smell of alcohol. Thus, the smell could not have come from mouthwash in 2006 because Ms. Penansky was not using it. Ms. Penansky commenced a change in her eating habits in which she had lost 50 pounds. In 2006, she was still losing weight, but not at a very rapid pace. At the final hearing, there were some allegations that the odor that Ms. Guzman and Ms. Laguerra smelled was a result of a release of ketones due to Ms. Penansky’s diet. However, the smell caused by ketones is a “sweet smell,” which is different from the smell of alcohol. Another allegation at the final hearing was that the smell could be a result of Ms. Penansky’s periodontal disease, but the smell that would result from a periodontal disease would be different from the smell of alcohol. Neither Ms. Guzman nor Ms. Laguerra had any conflict with Ms. Penansky that would cause them to make false allegations against her. In fact, both Ms. Guzman and Ms. Laguerra were highly complementary of Ms. Penansky’s work, aside from the use of alcohol and the hand tremors. The evidence is clear and convincing that in 2004 and in 2006, Ms. Penansky came to work at the Dover Clinic with alcohol on her breath while she was practicing as the primary midwife at the facility. In August 2006, the observations of Ms. Guzman and Ms. Laguerra were made known to the management at Suncoast. Suncoast elected not to require Ms. Penansky to undergo a drug screening to determine whether she had ingested alcohol. On August 3, 2006, Ms. Penansky was terminated from her position with Suncoast for her use of alcohol and directed to contact IPN. After Ms. Penansky was terminated from Suncoast, she went to work for a private physician. Her employment was uneventful, and she continued in his employ until the Department suspended her license by emergency order. Ms. Penansky did not contact IPN, and Suncoast filed a complaint with the Department. An investigation ensued. The Department required Ms. Penansky to be evaluated. In January 2007, Ms. Penansky was again evaluated by Dr. Brown. Ms. Penansky advised Dr. Brown that she had returned to drinking occasionally after she completed her program with IPN, but denied drinking on the job or drinking in large amounts. A drug screen was performed on Ms. Penansky, and the result was negative. Dr. Brown diagnosed Ms. Penansky with alcohol abuse, "rule out alcohol dependency." Credibly, Dr. Brown opined that Ms. Penansky appeared “to be either in denial or minimizing the impact alcohol has had on her life and the problems she has had at work with others smelling alcohol on her breathe [sic] multiple time [sic].” It was Dr. Brown’s opinion that in order for Ms. Penansky to be able to practice with reasonable safety and skill that she should minimally complete an intensive outpatient program and have monitoring through IPN. Ms. Penansky was also evaluated by Raymond A. Johnson, M.D., who came to the conclusion that Ms. Penansky did not have an addiction and alcohol problem. He felt that she was safe to practice nursing without treatment or monitoring by IPN. In his report dated January 22, 2007, he stated that Ms. Penansky used mouthwash multiple times a day because of periodontal disease, and he concluded that the use of the mouthwash was the reason for the smell of alcohol on her breath. His argument loses plausibility based on Ms. Penansky’s testimony at final hearing that she was not using the mouthwash in 2006 prior to going to work so that people would not mistake the smell of mouthwash for the smell of alcohol. Dr. Johnson had a psychological evaluation performed on Ms. Penansky by Nicholas Anthony, Ph.D. In his report, Dr. Anthony stated that Ms. Penansky told him that her brother was no longer allowed to use alcohol because he had been diagnosed with diabetes. Based on Ms. Penansky’s representations, he concluded that she did not have a family history for addiction. Ms. Penansky’s account of her brother’s abstinence differed when she related her family history to Dr. Brown. She did not tell Dr. Brown that her brother had stopped drinking because he was a diabetic. At the final hearing, she did not mention that her brother refrained from drinking because of diabetes. At the final hearing, Ms. Penansky testified: Well, what he [her brother] told me, in fact, what he told the whole family was, at one point he said he just felt like he was drinking too much and decided to stop. That was it. He never said anything about being an alcoholic. He never said he was diagnosed by a physician. He made a personal choice. Dr. Anthony tested Ms. Penansky using the Minnesota Multiphasic Personality Inventory-II (MMPI), The Rorschach, and the Million Clinical Multiaxial Inventory-III (MCMI). The Rorschach, otherwise known as the “ink blot” test, is not commonly used in the field of addiction psychiatry to look at substance abuse diagnoses. In the field of psychiatry, alcohol abuse and alcohol dependency are considered Axis I, or primary, diagnoses. The MMPI and the MCMI are more accurate and effective in diagnosing other Axis I disorders such as psychosis than in diagnosing substance abuse or dependency. This is due to the fact that individuals with substance abuse or dependency problems often attempt to present themselves in the best possible light when answering the test questions. The test results themselves for these individuals are often invalid because the test either misses the substance abuse or dependency diagnosis or identifies the individual’s denial or minimization tendencies. The Adult Clinical Interpretive Report for Ms. Penansky’s MMPI test states: [Ms. Penansky] approached the test items in a somewhat defensive manner. Her overcautious approach to the items suggests that she is concerned with making a good impression and is reluctant to disclose much about her personal adjustment. Interpretations of the clinical and content scale profiles should allow for her possible minimization of problems. The Adult Clinical Interpretive Report for Ms. Penansky’s MCMI test states: Unless this patient is a well-functioning adult who is facing minor life stressors, her responses suggest an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, the patient may protectively deny any unseemly traits or symptoms. This probably reflects either a broad-based concern about being appraised unfavorably by others or an active suspicion of the arcane motives of psychological inquiry. Her MCMI-II scores have been adjusted to compensate for her defensiveness, but the overall profile may remain partially distorted. An interpretation based on standard interpretive procedures is likely to be reasonably valid but may fail to represent certain features of either the patient’s disorders or her character. The BR scores reported for this individual have been modified to account for the defensiveness suggested by the prominence of Personality Patterns Scale 7 (Compulsive). Dr. Anthony interpreted the results of Ms. Penansky’s test scores as being negative for a diagnosis of alcohol abuse or dependency. Dr. Johnson relied on Dr. Anthony’s interpretation of test results in forming his opinion that Ms. Penansky was negative for a diagnosis of alcohol abuse or dependency. Dr. Brown reviewed the Adult Clinical Interpretive Reports of the MMPI and the MCMI performed on Ms. Penansky by Dr. Anthony and opined that the tests are bordering on invalid and that, given Ms. Penansky’s defensiveness on the test in answering questions, she would not use the test results as a total basis for concluding that Ms. Penansky did not have a problem with alcohol. Given Dr. Johnson’s reliance on the use of mouthwash as the explanation for the smell on alcohol on Ms. Penansky’s breath, the lack of credibility in Ms. Penansky’s account of her family history, and the defensive answers given by Ms. Penansky on her psychological testing, Dr. Johnson’s opinion concerning Ms. Penansky’s alcohol abuse lacks credibility. Current and former employees of Suncoast highly regarded Ms. Penansky’s work. Her evaluations were very good. She worked very hard, and the quality of her work was excellent. However, alcohol abuse can affect a nurse’s judgment and ability to practice with reasonable skill and safety. Alcohol may slow concentration and thinking and thereby cause a nurse to miss a diagnosis or symptom while treating a patient. Alcohol abuse may cause tremors, such as those experienced by Ms. Penansky. Although Ms. Penansky’s alcohol abuse may not have resulted in patient harm, it does not mean that it will not result in harm in the future. It is not necessary to wait for a patient to be harmed to determine whether a nurse can practice with reasonable skill and safety by reason of use of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j), Florida Statutes; imposing an administrative fine of $250; requiring her to undergo an IPN evaluation; suspending her license until such time as she undergoes an IPN evaluation; requiring compliance with all IPN recommendations, if any; and placing her on probation for three years with direct supervision. DONE AND ENTERED this 25th day of September, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2007.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a clinical laboratory supervisor's license without examination be DENIED. Respectfully submitted and entered this 15th day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Joan Marie Bartoe 1 Plaza Manor Venice, Florida 33595 Anthony DeLuccia District VIII Counsel Department of HRS Post Office Box 2258 Ft. Myers, Florida 33902 Secretary David H. Pingree Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Cutler plant of Respondent, Florida Power & Light Company (FPL), is located in Dade County, Florida, at 14925 Southwest 67th Avenue, approximately 15 miles south of Central Miami on an 80-acre site adjacent to Biscayne Bay. The plant has provided electrical service since 1949. At one time there were six generating units at the plant, but units 1, 2, 3 and 4 have been retired and are no longer in service. Cutler Units 5 and 6 were placed in service in 1954 and 1955, respectively. Both units were placed on extended cold standby in 1976, and were returned to service in 1982. These units are normally used only when other FPL generating units are out of operation or if extremely hot or cold weather creates an unusual electrical demand by FPL's customers. Cutler Unit 5 is a 75 megawatt steam generating unit. Cutler Unit 6 is a 161.5 megawatt steam generating unit. Each unit operates with a combustion engineering design boiler which is capable of burning No. 6 residual fuel, No. 2 distillate fuel, and natural gas. These fuels may be burned independently or in combination with each other. Combustion products from the boilers are exhausted through two separate stacks, each 150 feet in height. When in operation these units emit the following regulated air pollutants: particulate matter, sulfur dioxide, nitrogen oxides, and carbon monoxide. Cutler Units 5 and 6 are "existing fossil fuel steam generators" subject to the emission limiting standards specified in Rule 17-2.600(5)(b), Florida Administrative Code (F.A.C.), the ambient air quality standards specified in Rule 17-2.300(3), F.A.C., and the ambient air quality standards soecified in Section 24-17(1) and (2)(b), Dade County Code. Rule 17-2.600(5)(b), F.A.C., limits: (1) visible emissions to 20 percent opacity, (2) emission of particulate matter to 0.1 pounds per million Btu heat input, maximum 2-hour average, and (3) sulfur dioxide emissions to 1.1 pounds per million Btu heat input. Rule 17-2.300(3), F.A.C., establishes the maximum permitted levels of sulfur dioxide, particulate matter, carbon monoxide and nitrogen dioxide, as follows: sulfur Dioxide. Maximum three hour concentration not to be exceeded more than once per year-- 1300 micrograms per cubic meter (0.5 ppm). Maximum 24-hour concentration not to be exceeded more than once per year--260 micrograms per cubic meter (0.1 ppm) Annual arithmetic mean--60 micro- grams per cubic meter (0.02 ppm). Particulate Matter. Maximum 24-hour concentration not to he exceeded more than once per year-- 150 micrograms per cubic meter. Annual geometric mean--60 micrograms per cubic meter. Carbon Monoxide. Maximum one hour concentration not to be exceeded more than once per year--40 milligrams her cubic meter (35 ppm). Maximum eight hour concentration not to be exceeded more than once per year--10 milligrams per cubic meter (9 ppm). * * * Nitrogen Dioxide. Annual arithmetic mean--100 micrograms per cubic meter (0.05 ppm). Section 24-17(1) and (2)(b), Dade County Code, establishes the following ambient air quality standards and emission standards for maximum sulfur dioxide concentrations: Ambient air quality standards. . . . Annual arithmetic mean-8.6 micro- grams per cubic meter (0.003 parts per million); Twenty-four-hour concentration-- 28.6 micrograms per cubic meter (0.010 parts per million); Four-hour concentration-57.2 micro- grams per cubic meter (0.020 parts per million); One-hour concentration-286 micrograms per cubic meter (0.100 parts per million). Emission standards... Existing sources on the effective date of this section [Ordinance Nos. 76-52]: 1.1 pounds per million Btu heat input, maximum two-hour average, when liquid fuel is burned; On June 23, 1983, FPL submitted its application for renewal of the operating permits for Cutler Units 5 and 6 to DER. FPL's initial application contemplated burning No. 6 fuel oil containing up to one percent sulfur content to provide up to 25 percent of the heat input to each unit, with natural gas constituting the remaining 75 percent. During 1982 and 1984 several tests were performed at Units 5 and 6 to determine the level of particulate matter and visible emissions. Particulate and visual emissions testing was conducted at Unit 5 on June 30, 1982, and at Unit 6 on July 9, 1982, with the units burning a mixture of 75 percent natural gas and 25 percent fuel oil containing one percent sulfur. The results of these tests indicate the average particulate emission rate from each unit to be 0.04 pounds per million Btu head input, as compared to the applicable emission limit of 0.1 pound per million Btu input established by Rule 17-2.600(5)(b), F.A.C. Visual emissions were established as 6 percent for Unit 5 and one percent for Unit 6, as compared to the capacity limit of 20 percent established by Rule 17- 2.600(5)(b), F.A.C. Additional visual emission tests were conducted at Units 5 and 6 on August 10, 1983. The results of these tests indicted visible emissions to be less than 5 percent. While FPL's permit application was pending, residents of the neighborhood in the vicinity of the plant expressed concern to DER regarding "plume down wash." "Down wash" is a term used to describe an aerodynamic effect that, at higher wind speeds, causes reduction in pressure on the leeward side of the building or structure resulting in turbulent air flow around and within the cavity. If the exhaust plume from the stack of an air pollution source is near enough to the low pressure cavity, it is drawn into the turbulence and follows the air flow down to the leeward side of the building, thereby increasing the impact of emissions at ground level in the surrounding area. Air quality dispersion modeling is a method of predicting the impact of emissions from an air pollution source upon ground level air quality in the surrounding area. Inputs to the model include local meteorological data (wind speed, direction and mixing depth, and atmospheric stability and pressure) and source-specific information regarding stack height and diameter, exhaust gas temperature and velocity, and pollutant emission rate. The model provides a prediction of the ground level concentration of an air pollutant that will result from an emission source at any geographic point. The maximum point of impact from a particular source, under the "worst case" meteorological conditions, can therefore be identified and the resulting pollutant concentration predicted. Air quality di spersion modeling is a well-accepted technique in the field of air quality control, and specific models have been developed and approved by the United States Environmental Protection Agency. A screening analysis performed by DER meteorologist, Thomas Rogers, indicated that the configuration of the Cutler Units 5 and 6 and their exhaust stacks could create plume down wash. In order to address the potential effects of down wash from Units 5 and 6, FPL retained Environmental Science and Engineering, Inc. (ESE) to perform an air quality dispersion study. The initial ESE study, submitted to DER on February 14, 1984, evaluated the effects of emissions of sulfur dioxide from Units 5 and 6 on ground level air quality in the surrounding area, under both down wash and non- down wash conditions. As was contemplated in FPL's permit applications, this modeling study assumed that up to 25 percent of the heat input to each unit would be provided by No. 6 residental fuel oil containing one percent sulfur, with 100 percent fuel oil being burned during start-up until the unit achieved 25 percent load. The ESE study concluded that, under the worst-case emission and down wash conditions, the sulfur dioxide concentration at the point of maximum impact in the area surrounding the Cutler site would be a: (1) maximum three-hour concentration of 410 micrograms per cubic meter, (2) maximum 24-hour concentration of 114 micrograms per cubic meter, and (3) annual arithmetic mean of 9 micrograms per cubic meter. ESE performed an additional study to evaluate the maximum inpact of emissions of three other pollutants (nitrogen dioxide, carbon monoxide, and total suspended particulate) from Units 5 and 6, based on the same fuel assumptions. The predicted ambient air concentrations of these pollutants at the point of maximum impact, and under worst-case down wash and emission conditions, were: Nitrogen dioxide - annual arithmetic mean of 8.7 micrograms per cubic meter. Carbon monoxide - Maximum one-hour concentration of annual 23.3 micrograms per cubic meter. Maximum eight-hour concentration of annual 13.9 micrograms per cubic meter. Total suspended particulate - Maximum 24-hour concentration of annual 10.9 micrograms per cubic meter. Annual geometric mean - 0.8 micrograms per cubic meter. ESE subsequently performed a third analysis to determine the sulfur dioxide emission rate from Cutler Units 5 and 6 that would demonstrate compliance with the ambient air quality standards for sulfur dioxide established in the Metropolitan Dade County Pollution Control Ordinance. ESE's analysis concluded that under worst-case building down wash conditions, the maximum 1- and 4-hour sulfur dioxide concentrations from Units 5 and 6 were predicted to be 662 and 248 micrograms per cubic meter. These maximum concentrations were higher than the 1- and 4-hour standards established by the Dade County Code. Based on these results, ESE concluded that compliance with the Dade County ambient air quality standards would require that the maximum sulfur content of fuel oil burned during start-up would have to be limited to 0.23 percent. Additional particulate and visible emissions tests were conducted at Unit 5 on March 1, 1984, and at Unit 6 on February 29, 1984, with the units burning 100 percent natural gas. Unit 5 demonstrated an average particulate emission of 0.02 pounds per million Btu and Unit 6, of 0.01 pounds per million Btu, with neither unit exhibiting any visual emissions. During all compliance testings at Units 5 and 6, the units were operating at a capacity of at least 90 percent maximum load, in accordance with the testing requirements and policy of DER. Based on the results of ESE's third modeling study, FPL amended its permit applications to include a restriction requiring Units 5 and 6 to burn 100 percent natural gas except during start-up, and to limit the sulfur content of the oil burned during start-up to a maximum 0.2 percent. The air quality dispersion modeling performed by ESE utilized the only model currently approved by the United States Environmental Protection Agency and DER that is capable of taking aerodynamic down wash into consideration. DER's expert in air dispersion modeling found no fault with the conclusions reached in the ESE modeling studies. Possible differences between the actual Cutler plant building dimensions and configurations and those assumed in the modeling studies would not significantly change any of the conclusions reached. The draft permits for Units 5 and 6 would require the burning of 100 percent natural gas, except during periods of unit start-up when fuel oil may contribute up to 170 million Btu per hour of heat input to Unit 5 and 290 million Btu per hour heat input to Unit 6 (approximately 22 percent of each unit's maximum heat input). In addition, the draft permits limit total sulfur dioxide emissions from Units 5 and 6 to 41.3 pounds per hour and 70.1 pounds per hour, respectively. These sulfur dioxide emission limitations will insure compliance with the Dade County ambient air quality standards for sulfur dioxide, based upon the results of the ESE modeling studies. In order to meet the sulfur dioxide emission limits in the draft permits, the maximum sulfur content of fuel oil burned for Units 5 and 6 would be restricted to 0.23 percent. Operation of Cutler Units 5 and 6 in compliance with the conditions of the draft permits will provide reasonable assurance that the units will not cause any violation of the Dade County ambient air quality standards for sulfur dioxide, or the Florida ambient air quality standards. Use of 100 percent natural gas, except during start-up when residual fuel oil with maximum sulfur content of 0.23 percent is burned, will insure compliance with the emission limiting standards for particulate matter, opacity and sulfur dioxide established for existing fossil fuel steam generators by Rule 17-2.600(5)(b), F.A.C. The use of high quality, "clean", fuel as required by the draft permits, constitutes the most effective air pollution control strategy for Units 5 and 6. The primary concerns expressed by the Petitioners regarding Cutler Units 5 and 6 relate to noise, odors, down wash, and fumes they attribute to operation of the Cutler plant. Although the testimony and evidence on these points related to past experience of Petitioners, they were unable to specify what operating conditions and fuels resulted in the incidences of concern. On at least three of the occasions Jean Guthrie recorded objectionable odors or other effects felt to be attributable to the Cutler plant, neither Unit 5 nor Unit 6 was in operation. The record of complaints registered with the Dade County Consumer Advocate, from the time Cutler Units 5 and 6 were reactivated until two weeks before the final hearing, shows that there have been no complaints regarding the plant since June 3, 1983. No evidence was presented demonstrating that any past problems that may have been caused by operation of the Cutler plant will continue under the stringent restrictions on emissions, fuel type, and fuel quality imposed by the draft permit conditions. No violations of ambient air quality standards or emission limitations have been discovered and documented by DER with respect to Cutler Units 5 and 6. Neither Petitioners nor the members of the public that testified produced any evidence that Cutler Units 5 and 6 will be unable to comply with the conditions of the draft permits issued by DER. Nor was any evidence produced demonstrating that operation of Cutler Units 5 and 6 in compliance with the draft permits will result in emissions in excess of the emission limits prescribed under DER's rules, or will cause or contribute to any violations of the Florida or Dade County ambient air quality or emissions standards. Petitioner, Walter Guthrie, presently resides in Phoenix, Arizona, where he is employed in a permanent position with American West Airlines, a carrier servicing the southwestern and midwestern United States. He has been employed by American West Airlines, and has resided in Phoenix, for approximately 15 months, is registered to vote in the State of Arizona, and has an Arizona driver's license. Walter Guthrie holds no ownership interest in the home located at 6960 Southwest 144 Street, Miami, Florida, which home is owned by his parents, William L. and Jean Guthrie. Walter Guthrie has only visited his parents' home approximately three weeks in the year immediately preceding the final hearing in this case, and while some of his personal property is kept at that location, there is no certainty that Walter Guthrie will at any time in the future take up residence at his parents' home.
