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.
The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue 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 for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, sufficient to justify the imposition of disciplinarysanctions against her license. The resolution of this issue rests upon a determination of whether Respondent intubated the esophagus of a patient, as opposed to the patient's trachea, in the course of rendering anesthesia care; and whether Respondent then failed to provide a record justifying such a course of medical treatment.
Findings Of Fact Respondent is Saroja L. Ranpura, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0039872. Respondent was licensed in the State of Florida on April 27, 1982. She currently practices medicine in Ohio. Petitioner is the Department of Professional Regulation, Board of Medicine, the state agency charged with the regulation of physicians in the State of Florida. On August 29, 1985, Frank Snydle, M.D., performed a laparoscopy on patient C.P. at Heart of Florida Hospital in Haines City, Florida. This medical procedure was performed on an outpatient basis. As a result, C.P. came into the hospital on the day the surgery was to be performed. She met Respondent, who later provided anesthesia care to her in the course of the laparoscopy. Respondent examined C.P. at that time, prior to the surgery, and noted that C.P. had a small mouth. Later, C.P. was brought into the operating room on a stretcher and moved herself over onto the operating table. Present in the operating room at that time were Jean Allen, L.P.N., Norma Masters, R.N., and Respondent. Respondent proceeded to do an unusual procedure known as a "blind nasal intubation." The procedure requires the placement of an tube in the patient's throat through the nose, as opposed to the mouth, in order to maintain an open airway during later anesthesia administration in the process of surgery. C.P. was sedated, but awake, during this process and was intubated with a minor degree of difficulty. Prior to placement of the endotracheal tube, Respondent had the patient breath pure oxygen through a mask covering the mouth and nose. The preoxygenation process, according to Respondent, provided extra oxygen "as a reservoir and as astorage" to C.P.'s body tissues. By letting a patient breath 100 percent oxygen for three to four minutes, the resultant saturation permits a margin of four to six minutes for such an intubation to be safely completed without risk of the patient becoming hypoxic. Jean Allen, with almost 25 years of nursing experience in a surgical assistance career where she assists in 400 to 600 operations per year, observed Respondent during the entire intubation process, inclusive of the preoxygenation phase. Accepted medical practice after such an intubation requires that the person placing the tube then listen for breath sounds over each lung and over the area of the stomach. Respondent maintains that she did listen for those breath sounds with the aid of a stethoscope. The anesthesia record completed by Respondent has a notation "BEBS" for bilateral and equal breath sounds which Respondent testified that she heard with the stethoscope prior to administering additional sodium pentothal to the patient and inflating the cuff of the endotracheal tube. This testimony of Respondent is not credited in view of the testimony of Ms. Allen that she observed Respondent during this entire time and that Respondent did not listen for the breath sounds with a stethoscope prior to administering the additional sodium pentothal to the patient. Allen's testimony is also afforded the greater credibility due to her opportunity as a neutral witness to observe the events which transpired and her testimony that although she didn't observe Respondent closely after the additional sodium pentothal was administered, she maintained that she would have recalled Respondent's use of the stethoscope prior to that point. Notably, it is at that point prior to the administration of the additional sodium pentothal and inflation of the cuff of the endotracheal tube where Respondent maintains she listened for the breath sounds. Respondent, after completion of the placement of the endotracheal tube, administered additional sodium pentothal to the patient without listening for breath sounds; connected the tube to the anesthesia machine; and remarked that "it must be in place, the bag is moving" in reference to the bag on the anesthesia machine which generally inflates as the lungs of the patient deflate. While inflation or deflation of a breath bag on an anesthesia machine is one part of the procedure for checking placement of an endotracheal tube, the expert testimony of John Kruse, M.D., and David Alan Cross, M.D., establishes that this procedure alone is not a reliable method of determining proper tube placement. Frank Snydle, M.D., who had entered the operating room by this time in the sequence of events, did a manual vaginal examination of the patient, left the room, scrubbed his hands and returned. He then donned surgical gloves and gown, moved to the left side of the patient and prepared to proceed with the operation. Ms. Allen took her position at the foot of the table, between the patient's legs with an unobstructed view of Respondent. Dr. Snydle proceeded to make a small incision in the patient's abdomen through which he inserted a hollow, "Verres" needle. Carbon dioxide was then introduced to C.P.'s abdominalcavity to push the abdominal wall away from the internal organs. Next, a device known as a "trocar" and a "trocar sleeve" was inserted through the incision into the abdomen. The trocar was then withdrawn and a laparoscope was inserted into the sleeve. Built somewhat like a telescope with a built-in light source, the laparoscope permits the surgeon to look inside the abdomen and visually observe the patient's internal organs. During this procedure, Nurse Allen commented that she heard a sound like a fog horn or frogs croaking when she touched the patient's abdomen. Allen's remark is corroborated by Norma Masters and Dr. Snydle. The proof establishes, as corroborated by expert testimony of Dr. Kruse, that such sounds were associated with air, captured in C.P.'s stomach as the result of esophageal intubation, escaping from the stomach when pressure was applied. When Dr. Snydle made his first incision in the patient's abdomen, Allen observed that the blood was dark and Dr. Snydle agreed. Respondent inquired whether it could be venous blood. Snydle indicated he didn't think this was the case. Notably, the dark blood was observed, according to Respondent's medical records at 10:27 a.m. Further, Petitioner's experts, Dr. Kruse and Dr. Cross, based on their review of C.P.'s medical records, determined that the patient was initially intubated at approximately 10:15 a.m. Thus, approximately 12 minutes transpired from the beginning of the intubation process and conclusion of preoxygenation of the patient until the observation of dark bloodat the time of incision. After her inquiry regarding whether the blood could be venous, Respondent further responded that she was giving the patient 50 percent oxygen. She testified that she then increased the oxygen level to 100 percent. While the anesthesia record indicates administration of 100 percent oxygen, there is no time notation when this occurred. Blood again welled up from the incision and Nurse Allen commented that the blood appeared black. The less oxygenated blood becomes, the darker it appears. By this time, Dr. Snydle had inserted the laparoscope in C.P.'s abdomen. He observed that the internal organs were a "blueish color" ; an observation consistent with a decreasing level of oxygen in the patient's blood and an indication that the patient was hypoxic. When the patient's internal organs were discerned to be blue, Respondent asked Dr. Snydle to wait a moment and requested the assistance of Norma Masters, the circulating nurse. Masters came to the head of the operating table and was handed another endotracheal tube by Respondent. Respondent then began the process of intubating the patient with that tube through the mouth. The original nasal tube was left in place during the insertion of the second tube; an unheard of possibility, according to expert testimony, unless one tube was in the patient's esophagus and the other in the trachea. Nurse Allen's testimony establishes that the second tube, inserted via the patient's mouth, became foggy after insertion. The observation by Allen is consistent with experttestimony and establishes the fog was created by warm moist air from the patient's lungs flowing through the second tube. Respondent's testimony that she placed the second tube at the conclusion of the surgical procedure is not credited in view of the very clear, contradictory testimony of Masters and Allen that the endotracheal tube was replaced contemporaneously with the notation that the blood was dark and the patient's organs "blueish". After removal of the nasal tube and connection of the second tube to the anesthesia machine, Respondent manually squeezed the anesthesia bag to ventilate the patient. Dr. Snydle observed that the organs were turning pink again, and continued the procedure without further incident. After finishing the procedure, Snydle went out of the operating room, sat at a desk across the hall and began to write his orders. Following the procedure, the patient was wheeled to the recovery room, a short distance away. Nurses Allen and Masters did not see C.P. open her eyes during this process. Respondent's assertion that the patient opened her eyes and was responsive to commands is corroborated only by Dr. Snydle. However, while he noted in his operative report and his deposition that C.P. was awake following the operation, Snydle's observation is not credited in view of other proof establishing that his back was to the patient as she was wheeled past and that he assumed an awake state in the patient because Respondent was speaking to C.P. In view of the foregoing, Respondent's testimony that the patient was awake or responsive to commands following the surgery is not credited. After the patient was removed approximately 15 feet away to the recovery room, Respondent maintains that she informed Margaret Bloom, R.N., who was on duty there, that the patient's endotracheal tube was not to be removed, although she omitted telling Bloom about the dark blood incident. Bloom, who is also a certified registered nurse anesthetist, maintains that Respondent told her nothing about C.P.'s condition; instead, she went rapidly to the rest room in the lounge area. Bloom, left in the recovery room with the patient, then proceeded to hook up appropriate monitors and oxygen to the patient's endotracheal tube and began the process of monitoring C.P.'s vital signs. Bloom places the time of C.P.'s arrival time in the recovery room at approximately 11:05 a.m. The patient was not responsive to Bloom's spoken commands when brought to the recovery room. The patient appeared well oxygenated to Bloom; a judgement she made based on her observation of the color of C.P.'s lips and fingernails, since C.P. is a black female. Bloom rated C.P.'s circulation at twenty to fifty percent of preanesthetic pressure and determined the patient to be totally unconscious. Respondent returned to the recovery room at this time, told Bloom that she had done an "awake intubation" on the patient and that the tube should remain in place until Bloom determined that the patient was ready for it to be removed. Respondent then left the recovery room. As the result of blood tinged mucus filling the patient's endotracheal tube, Bloom removed the tube after thepatient registered breathing difficulties and attempts by Bloom to suction the mucus failed. She replaced that tube with a device known as an oral pharyngeal airway which goes in the patient's mouth and curves down the throat, holding the tongue forward. The device does not reach to the lungs. Shortly thereafter the patient began making glutteral noises and Bloom placed a venturi mask on the patient. The mask controlled the percentage of oxygen going to the patient, estimated by Bloom to be sixty to one hundred percent oxygen. The patient's breathing improved. Bloom completed replacement of the endotracheal tube with the airway device and mask shortly before Respondent again returned to the recovery room. Respondent, upset at Bloom's action in removing the endotracheal tube, proceeded to replace the oral airway device with a nasal tube. At 11:20 a.m., Bloom noted in her records that the patient's state of consciousness was unchanged. Later the patient made moaning sounds and was responsive to pain stimulation at approximately 12:20 p.m. Respondent concedes that C.P. suffered an hypoxic event at some point which resulted in damaged brain function. It is Respondent's position that such event occurred in the recovery room as the result of laryngospasm, occasioned by Bloom's removal of the endotracheal tube. Allen and Masters working in the operating room a short distance away testified that the sounds they heard emanating from the area of the recovery room were not the type of noise they associated with laryngospasm. Bloom, trained to recognize laryngospasm, testified that C.P. did not have sucha spasm. The expert testimony of David Cross, M.D., based on a study of arterial blood gases of C.P. following the surgery, establishes that the patient suffered an hypoxic episode too severe and too protracted to have been the result of a possible laryngospasm in the recovery room and that, in his expert opinion, she did not have a recovery room laryngospasm. Respondent's defense that C.P.'s survival of such a lengthy esophageal intubation in the operating room is an impossibility, is not persuasive. The opinion of Respondent's expert, Dr. Gilbert Stone, that no esophageal intubation occurred in the operating room is predicated on his belief that the tube was not changed during the surgery. Dr. Stone conceded that replacement of the tube during surgery at the time the dark blood was noticed with resultant improvement in the patient's condition permits a conclusion that esophageal intubation was the cause of the hypoxia. Testimony of Petitioner's experts, Dr. Cross and Dr. Kruse, are consistent in their conclusions that C.P. was esophageally intubated by Respondent, although they differ in their reasons for C.P.'s survival of the event. The opinion of these experts, coupled with the eye witness testimony of Allen and Masters, further support a finding of Respondent's esophageal intubation of the patient in the operating room and that she failed to recognize such intubation in a timely manner as a reasonable and prudent physician should have. The expert opinion testimony of Dr. Cross establishes that C.P. was intubated in her esophagus and survivedas a result of oxygen, going into her stomach under pressure, being forced back up her esophagus into the pharynx and then drawn by negative pressure into the lungs. This resulted in a effect similar to, but not as efficient as, the technique known as apneic oxygenation. The technique, once used to provide marginally adequate oxygen levels to maintain a patient's neurological and cardiac status, has fell into disfavor since patients suffered from respiratory acidosis due to the buildup of carbon dioxide in the lungs. Cross also pointed out that the heart can function for a much longer period of time without adequate oxygen than is possible for the brain. Cross's testimony provides an explanation for C.P.'s neurological damage without similar cardiac impairment. Cross also noted that the preoxygenation process which C.P. initially underwent after entering the operating room added to the time she was able to undergo oxygen deprivation before the onset of tissue damage. Respondent notes the discovery of a tumor in C.P.'s throat some months later as a possible contributor to the patient's hypoxic event during surgery. Another of Respondent's experts, Dr. Deane Briggs, an otolaryngologist specializing in diseases of the ears, nose and throat, treated C.P. in October of 1985, following the August, 1985 surgery. He discovered the existence of a sub-glottic tumor in the patient's throat. However, the existence of the tumor at the time of the initial surgery is not established. Testimony of anesthesiologist experts, including Respondent's own expert, Dr. Stone, do not support a finding that the tumor, if itexisted, had any effect during the operation. Further, Dr. Briggs' opinion that Respondent probably intubated the patient's right stem bronchus, as opposed to the esophagus, and that neurological damage therefore occurred in the recovery room is not credited in view of the conflict of this testimony with that of other witnesses and expert opinions. A finding that C.P.'s neurological impairment following surgery may have been exacerbated by a possible laryngospasm in the recovery room is relevant only with regard to mitigation of the severity of penalty to be imposed for Respondent's misconduct. Respondent's esophageal intubation of the patient in the operating room, and the resultant hypoxic event are established by clear and convincing evidence. The fact that C.P. suffered brain damage is undisputed by the parties. The proof clearly and convincingly establishes that the severe and protracted hypoxic episode sustained by the patient resulted not from a possible mild recovery room laryngospasm, but from Respondent's esophageal intubation of that patient in the operating room. It is concluded with respect to treatment of C.P., Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to keep medical records which justified her course of treatment of the patient, C.P. This finding is based upon the testimony of Dr. Cross that Respondent'smedical records did not justify her course of treatment, as well as the testimony of Respondent's expert, Dr. Stone. While testifying that he did not believe Respondent had intubated the patient's esophagus, Stone also acknowledged that Respondent's records would be inadequate if such had indeed occurred.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered for Respondent's violation of Section 458.331(1)(t), Florida Statutes, placing Respondent's license on probation for a period of three years upon terms and conditions to be determined by the Board of Medicine, including, but not limited to, a condition requiring Respondent's participation in appropriate continuing medical education courses; and imposing an administrative fine of $2,000. IT IS FURTHER RECOMMENDED that such Final Order impose a penalty for Respondent's violation of Section 458.331(1)(m), Florida Statutes, of an administrative fine of $500 and a letter of reprimand. DONE AND ENTERED this 28th day of August, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-28. Accepted. 29. Unnecessary to result. 30.-31. Accepted. 32.-34. Adopted by reference. 35.-61. Adopted in substance. 62. Unnecessary to result. 63.-68. Adopted in substance. 69.-87. Adopted by reference. Respondent's Proposed Findings. 1.-3. Rejected, not supported by the evidence. 4.-5. Rejected, not supported by the evidence, Further, proposed findings that records were adequate constitute legal conclusions. 6. Rejected, not supported by the evidence. COPIES FURNISHED: David G. Pius, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Sidney L. Matthew, Esq. Suite 100 135 South Monroe St. Tallahassee, FL 32302 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue Sloan Construction Company, Inc. (Sloan) has applied to the Department of Environmental Regulation (DER) for a permit to relocate its drum mix asphalt plant, a source of air emissions, from its current site in Flagler County to Brevard County. The issue in this proceeding is whether that permit should be granted. More specifically, it must be determined whether the proposed activity will meet applicable statutory and regulatory standards. An ancillary issue regarding Respondent, Sloan's entitlement to attorneys fees and costs pursuant to Section 120.57(1)(b)5., F.S. is addressed in a separate order entered this same date.
Findings Of Fact Sloan Construction Company, Inc., (Sloan) is a highway contractor doing business in the southeastern United States. It operates asphalt plants in South Carolina and in Florida; in addition to the portable plant at issue here, its Florida plants, permitted by the Department of Environmental Regulation (DER) are in Jacksonville, St. Augustine, and Orlando. On December 9, 1991, Sloan applied to DER to relocate its portable asphalt plant from Flagler County to Brevard County. The company has a contract with the Florida Department of Transportation for work on I-95 and on A-1-A in Brevard County and needs the plant for that work. This same plant was initially permitted by DER's southwest district office on November 9, 1989 for operation in Highlands County. Pursuant to subsequent permits the plant moved to Lake County in 1990, and to Flagler County in 1991. Each time it was moved, the relevant DER district office reviewed the air pollution impact before granting the permit. The permit will expire in November 1994. A consent order was entered in December 1990 between Sloan and DER regarding violations in May and June 1990. The violations described in the consent order were that visible emissions exceeded 20% opacity, and the metal tanks serving as the scrubber final settling basin were low on water with large amounts of particle flotation. The company paid a fine of $7,750 and made the DER-required changes in its maintenance and operation. The company monitors its own system and makes necessary repairs and improvements when problems are anticipated. When the scrubbers fail to operate properly, they are shut down and fixed. The scrubbers do not involve water discharge as they are a closed circuit system. This permit application is not requesting approval to discharge into the waters of the state. For this permit DER requires annual stack testing to determine whether the plant is meeting air emission limitations for particulates (.04 grains per dry standard cubic foot) and opacity (20%). Sloan retains an engineering consultant, Bottorf and Associates, to conduct those tests. The last stack test, May 1991, indicates that the emissions meet the standards. It is anticipated that this same plant will perform just as well in Brevard County. However, a proposed condition of the new permit is that another stack test be performed within 20 days of commencement of operation, in order to assure that equipment is functioning properly after the move. A condition of the existing permit is that unconfined emissions of particulate matter from vehicular movement, loading, construction or demolition be controlled by paving of traffic areas and the sprinkling of stockpiles with water. Sulphur dioxide is considered to be the pollutant of greatest concern in a facility such as this. Sulphur dioxide is generated from the burning of fuel containing sulphur. The applicant has agreed to reduce sulphur content of its fuel from 1.8% to .5%, and to reduce its sulphur dioxide emission limit from 96 tons per year to 26 tons per year. No DER rule requires air pollution source modelling for an asphalt plant or other minor source (defined as less than 100 tons per year of a single pollutant emission). However, because of the proximity of the proposed facility to the existing Orlando Utilities Commission (OUC) power plant, and public concern about sulphur dioxide emissions in the area, DER air permitting engineer, John Turner, ran SCREEN models to predict the combination of emissions from this proposed facility and other sources in the area. The total projected sulphur dioxide ambient air level from the SCREEN models run by John Turner for the Sloan facility at 26 tons per year included four other local sources, and included a more specific model for the nearby OUC plant, which model considered additional sources. John Turner's modelling yielded 241.63 micrograms/ cubic meter on a 24 hour basis. The ambient air quality standard is 260. John Turner's modelling yielded a conservative estimate, that is, it most likely over-predicted sulphur dioxide levels. The model assumed no reduction in sulphur dioxide from aggregate in asphalt plant dryers; tests actually reflect a 70-89% reduction, and the U.S. Environmental Protection Agency (EPA) assumes a 50% reduction when no tests are available. The model assumed all sources would be operating 24 hours a day, when they actually operate for a more limited period. Moreover, the model assumed all sources would be operating at the same time at their maximum permitted rates. Turner's assumptions also assumed worst case meteorological conditions, such as wind inversions, that would combine plumes from two sources in opposite directions. In the OUC model used by Turner a worst case sulphur dioxide background of 44 was assumed when the normal background level would be much lower. "Downwash" is the effect of wind hitting a large, generally flat, structure or impediment, rising to go over the top and then dropping---an effect which would cause a pollution plume to drop to the earth more quickly. The County's expert conceded that John Turner's modelling was conducted properly, but criticized the model for failing to consider downwash. John Turner and his supervisor, Allen Zahm, did consider downwash but they suggest that it would lower, not raise, the ambient air level, as downwash tends to retain the concentration closer to the stack. The County's expert stated that he did not know that downwash would actually occur on the site. As provided in the permit conditions, the applicant intends to use "on specification" used oil for fuel. "On-specification" used oil must meet standards not to exceed certain allowable levels for arsenic, cadmium, chromium and other substances. There is no allowable level of PCB; that is, the standard level is zero. The sulphur and heavy metal content of the fuel is monitored through certificates of quality required by DER. Sloan has complied with the permit requirements as to its fuel quality. The proposed site for the facility is in Delespine, north of Cocoa in Brevard County, near Highway U.S. 1 and near the Indian River Lagoon. The plant will be approximately 700 meters southwest of an existing mid-sized power plant, OUC, and approximately a mile northwest of a Florida Power and Light Company power plant. Adjacent to the site is a large residential community, Port St. John, with approximately 18,000 residents. The community has expanded rapidly as a result of the availability of affordable housing, and it includes a mix of elderly citizens and young families with children. The residents are genuinely and sincerely concerned for their health and safety and the character of their neighborhoods. They provided anecdotal testimony of increased respiratory problems and negative environmental impacts which they attribute to the power plants and other industrial uses in the area. They are concerned about increased traffic and problems of evacuation in the event of an emergency. They are worried that the traffic and emissions from the proposed facility will cause special problems for students at the nearby elementary schools. As real and sincere as those concerns are, they do not overcome the substantial evidence presented by the applicant that the proposed permit meets the specific requirements of the responsible state agency. The citizens' concerns are classic land use issues, which through zoning and land use regulation, are the jurisdiction of their local governments.
Recommendation Based on the foregoing, it is hereby, recommended that the Department grant Sloan's application to amend its operating permit for its asphalt plant (Permit No. 167794) with the change in permit conditions as noticed by the Department (Sloan Ex. #27), and with the condition, as stipulated, that the stack for air emissions from the facility will be 42.5 feet in height above ground level. RECOMMENDED this 22nd day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of June, 1992. COPIES FURNISHED: Petitioners #92-1801 Thomas Lanham Asst. County Attorney Brevard County Attorney's Office Building C, Suite 346 2725 St. Johns Street Melbourne, FL 32940 #92-1802 Joseph & Katherine Tidwell 4000 Delespine Road Cocoa, FL 32927 #92-1803 Carol L. Harris 6040 Gilson Avenue Cocoa, FL 32927 #92-1804 Harry S. Rice 931 Galleon Street Cocoa, FL 32927 #92-1805 Joseph F. DeBarry 950 Galleon Street Cocoa, FL 32927 #92-1806, 92-1807, 92-1813 (Counsel for Port St. John Homeowners Assn., Jessie Fleming, & Don L. Williams) F. Michael Driscoll, Esquire 1530 S. Federal Highway Rockledge, FL 32955 #92-1808 Bea Polk 101 River Park Blvd. Titusville, FL 32780 #92-1809 Russell Harris 6040 Gilson Avenue Cocoa, FL 32927 #92-1811 Opal Hall 7655 South U.S. 1 - Lot 17 Titusville, FL 32780 #92-1812 John Ferguson 7020 Song Drive Cocoa, FL 32927 #92-1814 First Baptist Church of Port St. John Joseph E. Tidwell 4000 Delespine Road Cocoa, FL 32927 #92-1815 David & Rhonda Tidwell 4530 Robert Street Cocoa, FL 32927 #92-1816 Felicia Cardone, et al. 7230 N. U.S. Hwy. 1, #106 Cocoa, FL 32927 #92-2471 James M. Shellenberger, et al. Sunrise Village Condominium 7040 N. U.S. Hwy. 1, Unit #101 Cocoa, FL 32927 Respondents (for Sloan Construction Company, Inc.) F. Alan Cummings, Esquire Michael Riley, Esquire P.O. Box 589 Tallahassee, FL 32302 (for DER) Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
Findings Of Fact This cause comes on for consideration based upon the petition of John C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide. The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs. On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted. This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given. In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels. In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion. The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.) When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks. Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated. His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations. These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded. Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated. The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected. The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard. In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive. In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project. The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
Recommendation It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida. DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: E. G. Couse, Esquire Grace & Couse, P.A. Suite 202, Courtney Building Post Office Drawer 1647 Fort Myers, Florida 33902 L. Caleen, Jr., Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Beverly E. Myers, Esquire Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER =================================================================
