The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a practical nurse, knowingly misrepresented a material fact by denying prior participation in an alcohol recovery program for treatment of alcohol abuse, and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact On December 10, 2014, Petitioner Stephanie DeCelestino ("DeCelestino") submitted an Initial Application for Licensure to Respondent Board of Nursing (the "Board"). Because DeCelestino is a licensed practical nurse ("LPN") in another state, she applied for a Florida LPN license by endorsement (a process which allows an applicant to avoid sitting for another examination). The Board is responsible for reviewing such applications and determining which should be certified for licensure to the Department of Health ("Department"), and which denied. Under the heading "Criminal History," the application which DeCelestino completed asked a single question: "Have you EVER been convicted of, or entered a plea of guilty, nolo contendre, or no contest to, a crime in any jurisdiction other than a minor traffic offense?" DeCelestino answered, "NO." Under the heading "Health History," the application which DeCelestino completed contained five questions, as follows: In the last five years, have you been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse that occurred within the past five years? In the last five years, have you been admitted or referred to a hospital, facility or impaired practitioner program for treatment of a diagnosed mental disorder or impairment? During the last five years, have you been treated for or had a recurrence of a diagnosed mental disorder that has impaired your ability to practice nursing within the past five years? In the last five years, were you admitted or directed into a program for the treatment of a diagnosed substance- related (alcohol/drug) disorder or, if you were previously in such a program, did you suffer a relapse in the last five years? During the last five years, have you been treated for or had a recurrence of a diagnosed substance-related (alcohol/drug) that has impaired your ability to practice nursing within the past five years? DeCelestino answered "NO" to all five questions. The Department orders a criminal background check on all applicants. The results for DeCelestino suggested that she had an undisclosed criminal history. Accordingly, by letter dated December 23, 2014, the Department notified DeCelestino that her application might contain false information and invited her to "modify [her] response to the criminal history question" and provide "a typed self explanation of each charge" together with "all available court dispositions" among other items. DeCelestino complied. By letter dated February 7, 2015, DeCelestino informed the Department (as she would later testify credibly at hearing) that she had been arrested in Tennessee on February 14, 2014, for committing a crime after "consuming large amounts of alcohol." For this offense, DeCelestino had been sentenced, on April 22, 2014, to six months' probation on the conditions that she "continue counseling" and have no contact with the victim. The mandatory "counseling" consisted of attending Alcoholics Anonymous ("AA") meetings, which DeCelestino did from April to September 2014. Later, DeCelestino voluntarily received group counseling through ADAP Counseling Services ("ADAP") in Florida, which she completed on November 9, 2014. DeCelestino disclosed these facts to the Department in her February 7, 2015, correspondence, writing: "I attended AA meetings and a strict counseling group here in Florida called Adap." Together with her letter, DeCelestino furnished the Department with a copy of the Order for the Expungement of Criminal Offender Record dated November 20, 2014, by which the Tennessee court having jurisdiction over her criminal offense had dismissed the charge and ordered "that all PUBLIC RECORDS relating to such offense . . . be expunged and immediately destroyed." She also submitted an Application Update on which she switched her answer to "Yes" in response to the criminal history question. The Board accepted DeCelestino's explanation of the criminal charge and does not currently allege that she knowingly misrepresented a material fact by denying the arrest in Tennessee, given that the record thereof had been expunged. On June 30, 2015, however, the Board executed a Notice of Intent to Deny DeCelestino's application for certification as a practical nurse by endorsement, relying upon other grounds in support of such proposed action. In the notice, the Board alleged: As part of a pretrial intervention agreement, the applicant was required to attend substance abuse counseling sessions. The applicant was discharged from the sessions on or about November 9, 2014. The Board accused DeCelestino of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied, in response to the first health history question on the application, having participated in an alcohol recovery program for treatment of alcohol abuse that occurred within the past five years. The Board's factual allegations are not entirely accurate. The counseling provided by ADAP, which DeCelestino completed on November 9, 2014, was not court ordered, but rather involved services that DeCelestino sought on her own. There is no evidence in the record persuasively establishing that these services were provided as part of a "drug or alcohol recovery program" for the purpose of treating "drug or alcohol abuse."1/ Perhaps more important, there is no persuasive evidence supporting a finding that DeCelestino knew that the ADAP counseling services met these criteria, even assuming that they did, which to repeat was not proven. The undersigned accepts as credible DeCelestino's testimony that she did not interpret the health history question as an inquiry about such counseling as she received at ADAP. As for her court ordered attendance at AA meetings, which DeCelestino was "required to enter into," the undersigned accepts as credible her testimony that she did not consider AA to be an "alcohol recovery program . . . for treatment of drug or alcohol abuse." There is, to explain, no evidence in the record establishing the nature of AA meetings, and, although the undersigned has a general idea of what AA does given that it is a well-known organization with which most adults in the U.S. have at least a passing familiarity through common experience and exposure to the popular culture, it is not clear to the undersigned that AA constitutes an "alcohol recovery program" within the meaning of the health history question.2/ Because the question does not unambiguously inquire about AA, DeCelestino's conclusion that nondisclosure of her attendance at AA meetings was permissible is arguably correct and at worst an honest mistake. Based on DeCelestino's credible testimony, which the undersigned credits, it is found that DeCelestino had no intention of deceiving the Board in hopes her attendance at AA meetings or ADAP counseling sessions would not be discovered. She readily disclosed this information when asked for an explanation of her criminal background, even though no issue had been raised concerning her response to the health history question. Had she intended to conceal her participation in an "alcohol recovery program," DeCelestino surely would not have mentioned AA or ADAP in her February 7, 2015, letter to the Department because she could have responded truthfully to the inquiry about her criminal charge without doing so. The order sentencing her to probation, recall, required her to "continue counseling" but said nothing about attending an "alcohol recovery program." The fact that she volunteered the information while making no attempt to update her application to conform thereto persuasively corroborates her testimony that she did not understand the health history question to be asking about AA meetings or ADAP counseling. Determinations of Ultimate Fact DeCelestino is not guilty of attempting to procure an LPN license by knowing misrepresentations, which is a disciplinable offense and grounds for denial of licensure under section 464.018(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving DeCelestino's application for licensure by endorsement as a practical nurse unless it determines that she might be impaired as a result of alcohol abuse, in which case a referral should be made pursuant to section 456.076(3) with further proceedings to follow in accordance therewith. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
The Issue Whether Florida Administrative Code Rules 11D-8.011, 1D-8.012, 11D-8.013, and 11D-8.014 constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: FDLE is the state agency responsible for the regulation of blood analysts who conduct blood testing for purposes of the driving and boating under the influence and related provisions of Chapters 316, 322, and 327, Florida Statutes. § 316.1932(1)(a)2., Fla. Stat. Among FDLE's enumerated powers under the Alcohol Testing Program (the "program") are the authority to approve the "type" of blood test utilized and the authority to "specify techniques and methods" for blood testing utilized under the driving and boating under the influence and related provisions of Chapters 316, 322, and 327, Florida Statutes. § 316.1932(1)(a)2.n., and o., Fla. Stat. Petitioner, William Lane, has been charged with DUI manslaughter and is awaiting trial on that charge in the 18th Judicial Circuit, in and for Brevard County, Florida. Petitioner was subjected to a blood alcohol test that purported to be conducted in compliance with Sections 316.1932, 316.1933, and 316.1934, Florida Statutes. FDLE has not contested the standing of Petitioner to initiate this proceeding. Petitioner has challenged Florida Administrative Code Rules 11D-8.011, 11D-8.012, 11D-8.013, and 11D-8.014 as invalid exercises of delegated legislative authority.1 Florida Administrative Code Rule 11D-8.011 provides: 11D-8.011 Approval of Blood Alcohol Test Methods. The Department approves the following test methods for determining blood alcohol level: Alcohol Dehydrogenase (Enzymatic). Gas Chromatography. Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. History–New 10-31-93. Florida Administrative Code Rule 11D-8.012 provides: 11D-8.012 Blood Samples - Labeling and Collection. Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does not contain alcohol. Blood samples must be collected in a glass evacuation tube that contains a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate or EDTA (ethylenediaminetetraacetic acid). Compliance with this section can be established by the stopper or label on the collection tube, documentation from the manufacturer or distributor, or other evidence. Immediately after collection, the tube must be inverted several times to mix the blood with the preservative and anticoagulant. Blood collection tubes must be labeled with the following information: name of person tested, date and time sample was collected, and initials of the person who collected the sample. Blood samples need not be refrigerated if submitted for analysis within seven (7) days of collection, or during transportation, examination or analysis. Blood samples must be otherwise refrigerated, except that refrigeration is not required subsequent to the initial analysis. Blood samples must be hand-delivered or mailed for initial analysis within thirty days of collection, and must be initially analyzed within sixty days of receipt by the facility conducting the analysis. Blood samples which are not hand-delivered must be sent by priority mail, overnight delivery service, or other equivalent delivery service. Notwithstanding any requirements in Chapter 11D-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level. Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. History–New 10-31-93, Amended 7-29-01. Florida Administrative Code Rule 11D-8.013 provides: 11D-8.013 Blood Alcohol Permit - Analyst. The application for a permit to determine the alcohol level of a blood sample shall be made on a form provided by the Department and shall include the following information: Name and address of applicant; A copy of state license if licensed, or college transcript; Name and address of employer and laboratory facility where applicant performs analyses; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, A complete description of proposed analytical procedure(s) to be used in determining blood alcohol level. Qualifications for blood analyst permit - To qualify, the applicant must meet all of the following requirements: Department approval of analytical procedure(s). All proposed analytical procedures will be reviewed and a determination of approval will be made by the Department; Satisfactory determination of blood alcohol level in five proficiency samples provided by the Department using the proposed analytical procedure. Satisfactory determination shall be made by reporting results for blood alcohol proficiency samples within the acceptable range for the samples. For blood alcohol testing, acceptable ranges shall mean the calculated proficiency sample mean + or - 3 standard deviations iterated twice. The mean and standard deviations will be calculated using the results reported by the analysts and reference laboratories; Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316, 322, and 327, F.S.; and, Meet one of the following: Possess a clinical laboratory license in clinical chemistry as a technologist, supervisor or director, under Chapter 483, F.S.; or Be a licensed physician pursuant to Chapter 458, F.S.; or Complete a minimum of 60 semester credit hours or equivalent of college, at least 15 semester hours of which must be in college chemistry. The department shall approve gas chromatographic analytical procedures and enzymatic analytical procedures based on alcohol dehydrogenase which meet the following requirements: Includes the approved method used and a description of the method, and the equipment, reagents, standards, and controls used; Uses commercially-prepared standards and controls certified by the manufacturer, or laboratory-prepared standards and controls verified using gas chromatography against certified standards. For commercially-prepared standards and controls, the manufacturer, lot number and expiration date must be documented for each sample or group of samples being analyzed. For laboratory-prepared standards and controls, date, person preparing the solution, method of preparation and verification must be documented; A statement of the concentration range over which the procedure is calibrated. The calibration curve must be linear over the stated range; Uses a new or existing calibration curve. The new calibration curve must be generated using at least three (3) standards: one at 0.05 g/100mL or less, one between 0.05 and 0.20 g/100mL (inclusive) and one at 0.20 g/100mL or higher, and must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher. The existing calibration curve must be verified using a minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher; Includes the analysis of an alcohol- free control, and the analysis of a whole blood or serum control. The whole blood or serum control may be used to satisfy the control requirement(s) in paragraph (d); A gas chromatographic analytical procedure must discriminate between methanol, ethanol, acetone and isopropanol and employ an internal standard technique; An enzymatic analytical procedure based on alcohol dehydrogenase must use the procedure recommended by the instrument manufacturer/test kit vendor for whole blood alcohol analysis, and the enzyme used must have sufficient selectivity to provide negligible cross-reactivity towards methanol, acetone and isopropanol. The permit shall be issued by the Department for a specific method and procedure. Any substantial change to the method, analytical procedure, or laboratory facility must receive prior approval by the Department before being used to determine the blood alcohol level of a sample submitted by an agency. The Department shall determine what constitutes a substantial change. An analyst shall only use a Department- approved procedure to determine the blood alcohol level of samples submitted by an agency. Approval of blood alcohol analysis methods and procedures shall be based on rule requirements in effect at the time they were submitted for approval. Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3) 322.63(3)(b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b), (e), 327.353(2), 327.354(3) FS. History–New 10- 31-93, Amended 4-1-94, 2-1-95, 1-1-97, 11-5- 02, 12-9-04. Florida Administrative Code Rule 11D-8.014 provides: 11D-8.014 Blood Alcohol Permit - Analyst: Renewal. Permits to conduct blood alcohol analyses shall remain valid until otherwise suspended or revoked by the Department. In order to remain qualified for such permit, an analyst must satisfactorily determine the blood alcohol level of at least two (2) proficiency samples provided by the Department each annual quarter. Satisfactory determination shall be made by reporting results for blood alcohol proficiency samples within the acceptable range for the samples. For blood alcohol testing acceptable ranges shall mean the calculated proficiency sample mean + or - 3 standard deviations iterated twice. The mean and standard deviations will be calculated using the results reported by the analysts and reference laboratories. An analyst, who is in good standing, may elect to not participate in one proficiency test cycle each calendar year. The analyst must notify the Department in writing, of his/her election prior to the date the proficiency test results must be reported to the Department. Upon notification by the Department that an analyst has failed to satisfactorily determine the blood alcohol level on any set of proficiency samples, the analyst shall be required to satisfactorily determine the blood alcohol level of a second set of five proficiency samples provided by the Department. Upon notification by the Department that an analyst has failed to satisfactorily determine the blood alcohol level on a second set of proficiency samples, the analyst shall not perform any duties authorized by the analyst’s permit until the analyst satisfactorily determines the blood alcohol level of a subsequent set of proficiency samples provided by the Department. This section shall not preclude the Department from taking further action in accordance with Rule 11D-8.015, F.A.C. Failure to satisfactorily determine the blood alcohol level of any six (6) sets of proficiency samples provided by the Department within a twelve (12) month period shall result in revocation of the blood analyst permit. Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. History–New 10- 31-93, Amended 1-1-97, 11-5-02. Subsections 316.1932(1)(a)2. and (f)1., Florida Statutes, cited as specific authority for all four rules, provide: (2) The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program is responsible for the regulation of the individuals who operate, inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program is further responsible for the regulation of blood analysts who conduct blood testing to be utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. The program shall: Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors, instructors, blood analysts, and instruments. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts, and instruments. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators, agency inspectors, instructors, blood analysts, and instruments. Establish uniform requirements for instruction and curricula for the operation and inspection of approved instruments. Have the authority to specify one approved curriculum for the operation and inspection of approved instruments. Establish a procedure for the approval of breath test operator and agency inspector classes. Have the authority to approve or disapprove breath test instruments and accompanying paraphernalia for use pursuant to the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. With the approval of the executive director of the Department of Law Enforcement, make and enter into contracts and agreements with other agencies, organizations, associations, corporations, individuals, or federal agencies as are necessary, expedient, or incidental to the performance of duties. Issue final orders which include findings of fact and conclusions of law and which constitute final agency action for the purpose of chapter 120. Enforce compliance with the provisions of this section through civil or administrative proceedings. Make recommendations concerning any matter within the purview of this section, this chapter, chapter 322, or chapter 327. Promulgate rules for the administration and implementation of this section, including definitions of terms. Consult and cooperate with other entities for the purpose of implementing the mandates of this section. Have the authority to approve the type of blood test utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. Have the authority to specify techniques and methods for breath alcohol testing and blood testing utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. Have the authority to approve repair facilities for the approved breath test instruments, including the authority to set criteria for approval. Nothing in this section shall be construed to supersede provisions in this chapter and chapters 322 and 327. The specifications in this section are derived from the power and authority previously and currently possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of chapter 99-379, Laws of Florida.[2] * * * (f)1. The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of a law enforcement officer substantially in accordance with rules of the Department of Law Enforcement. Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and ease of administration, and must provide an approved method of administration which must be followed in all such tests given under this section. However, the failure of a law enforcement officer to request the withdrawal of blood does not affect the admissibility of a test of blood withdrawn for medical purposes. Subsection 316.1933(2)(b), Florida Statutes, cited as specific authority for Rule 11D-8.0133, provides: (b) A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation at the discretion of the department. Any insubstantial differences between approved methods or techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the department, in any individual case, shall not render the test or test results invalid. Subsection 316.1934(3), Florida Statutes, is cited as specific authority for Rule 11D-8.013.4 Section 316.1934, Florida Statutes, provides, in relevant part: 316.1934 Presumption of impairment; testing methods.— It is unlawful and punishable as provided in chapter 322 and in s. 316.193 for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties are impaired or to the extent that the person is deprived of full possession of normal faculties, to drive or be in actual physical control of any motor vehicle within this state. Such normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life. At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged, as shown by chemical analysis of the person's blood, or by chemical or physical test of the person's breath, gives rise to the following presumptions: If there was at that time a blood- alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. If there was at that time a blood- alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. If there was at that time a blood- alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level. The presumptions provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. A chemical analysis of a person's blood to determine alcoholic content or a chemical or physical test of a person's breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures or any insubstantial defects concerning the permit issued by the department, in any individual case do not render the test or test results invalid. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation in accordance with rules adopted by the department. . . . For purposes of this proceeding, the remaining provisions cited as specific authority for or as laws implemented by the challenged rules are redundant to the provisions set forth above.5 11. Sections 316.1932, 316.1933, and 316.1934, Florida Statutes, are collectively referred to as the implied consent law. See Robertson v. State, 604 So. 2d 783, 789 n.4 (Fla. 1992). In Robertson, the Court, citing its earlier analysis in State v. Bender, 382 So. 2d 697 (Fla. 1980), discussed the implied consent law and its relation to earlier common law evidentiary principles as to the admissibility of expert testimony in a DUI prosecution. The implied consent law "includes an exclusionary rule prohibiting the use of blood-test results taken contrary to its core policies." Robertson, 604 So. 2d at 789. However, "this exclusionary rule does not prohibit the use of all evidence obtained contrary to the implied consent law, but only such evidence obtained in a manner that is contrary to the core policies of the statute: ensuring scientific reliability of the tests, and protecting the health of test subjects." Id. at 789 n.5. Prior to the adoption of the implied consent law, scientific tests for intoxication were admissible if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented to explain the meaning of the test. Robertson, 604 So. 2d at 789. The Court explained the implications of this common law rule: This predicate had to be established in each and every case. If the state failed to do so, the evidence was not admissible. Moreover, when the state attempted to establish the necessary predicate, the defense enjoyed an opportunity to rebut all of this evidence. If the defense introduced sufficient evidence to rebut any one of the elements of the predicate, then once again the expert evidence was not admissible. Perhaps most significantly of all, the former procedure required the trial court to be the arbiter of what often was a dispute over arcane scientific principles. Id. (citation omitted). The implied consent law altered this practice by creating a presumption that the evidence is admissible, provided the state shows that the person conducting the test was properly licensed and has substantially complied with the governing regulations. "In other words, the state's burden of establishing a predicate is simplified in the sense that the state no longer has to guess what factors a particular trial judge will require the state to prove before admitting the test results; nor is the trial court required to wade into a morass of arcane scientific challenges and counterchallenges. If the state follows the HRS[6] 'checklist,' then the trial court's determination that the predicate has been established is clothed in a presumption of correctness." Robertson, 604 So. 2d at 789. In the instant case, Petitioner contends that the challenged rules do not provide a "checklist" in the area of blood alcohol testing sufficient to entitle the state to the presumption of correctness under the implied consent law. According to Petitioner, Robertson dictates that blood alcohol tests conducted under the challenged rules are not entitled to any presumption of correctness, and must be subjected to the three-step common law test for admissibility. Petitioner complains that the rules do not provide a checklist at all. Florida Administrative Code Rule 11D-8.011 simply approves alcohol dehydrogenase and gas chromatography as test methods for determining blood alcohol level, without setting forth a procedural checklist by which a judge could verify that the testing has been conducted in a scientifically reliable manner. In fact, the challenged rules do not prescribe a specific step-by-step procedure for the conduct of blood alcohol testing. Rather, blood alcohol permit applicants are required to propose analytical procedures that comport with the requirements set forth in Florida Administrative Code Rule 11D-8.013(3). If the application is approved by FDLE, then a permit is issued that allows the analyst to conduct testing only for the specific method and procedure described in the application, and only in the specific laboratory facility named in the application. Any substantial changes in the test method, analytical procedure, or in the laboratory facility itself must be approved by FDLE. Fla. Admin. Code R. 11D-8.013(4). Petitioner takes the position that in order to be consistent with the statutes as interpreted by Robertson, FDLE's rules must impose a uniform, step-by-step procedure for the administration of alcohol dehydrogenase and gas chromatography blood alcohol testing. FDLE takes the position that imposing such a procedure on every laboratory in the state would be absurdly expensive, scientifically unnecessary, and is not required by the governing statutes. Gas chromatography is the only test method currently used in Florida laboratories. "Headspace analysis" is the general procedure employed.7 Laura Barfield, the manager of the Alcohol Testing Program, explained that gas chromatography is a separation technique used to analyze blood samples for their alcohol (specifically, ethanol) content. Gas chromatography separates a compound into its individual components, using gas as the mode for separation. Petitioner's toxicology expert was Lawrence W. Masten, a former professor of toxicology at the University of Mississippi and currently a toxicology consultant. Dr. Masten explained the method in layman's terms. A small sample of blood is diluted with an internal standard, which is a chemical (usually a molecule similar to ethyl alcohol) of a known concentration. The diluted sample is placed into a vial, sealed, then heated to a constant temperature. The air sample in the head space above the heated liquid is analyzed in the gas chromatograph to derive findings as to the level of alcohol in the blood sample. Dr. Masten explained that the internal standard is included so that a ratio may be established between the molecules of alcohol in the blood sample and those in the standard. The inclusion of an internal standard also makes it less important to precisely measure the volume of the blood sample. Bruce Goldberger is a forensic toxicologist and is the director of toxicology at the University of Florida College of Medicine. In 1999-2000, Dr. Goldberger chaired a committee of scientific and legal experts who made recommendations to FDLE resulting in the current form of the challenged rules. Dr. Goldberger testified that the committee discussed the procedures needed to produce a reliable and accurate result from a gas chromatograph. He believed that the most important aspect of the rules is the requirement that the procedure be able to differentiate between ethanol and other volatiles in the specimen. Dr. Goldberger also cited the specific criteria for the calibration and control of the method as important factors in ensuring the reliability of tests performed pursuant to FDLE permits. Dr. Goldberger explained that, because there is the possibility of other alcohols in the blood specimen, the testing method must be able to differentiate between ethanol, which humans consume in alcoholic beverages, and acetone, isopropanol, methanol, and any other possible interferent. Dr. Goldberger agreed with Dr. Mastin on the importance of requiring the use of an internal standard. Dr. Goldberger testified that the use of an internal standard is always necessary in modern day quantitative analysis. While acknowledging the difficulties that these concepts pose to laymen, Dr. Goldberger stated that anyone trained in the area of quantitative analysis would understand the role of an internal standard. He explained that Florida Administrative Code Rule 11D-8.013(3)(f) does not prescribe one specific internal standard because there are two such standards that are commonly used throughout the world, and that either one, n-propanol or butanol, is accepted by scientists in the field of forensic toxicology. Dr. Goldberger testified that different laboratories may use different standards without affecting the accuracy and reliability of their tests, provided their testing methods are validated and provided the lab where the chemist is performing the test employs the calibrators and controls that are noted in Florida Administrative Code Rule 11D-8.013. Dr. Goldberger believes that it would be poor science to write rules that "get down to the nitty-gritty of a method." The rules should not prescribe the precise chemical composition of the internal standard, the temperature used to heat samples, or the column8 used. Different laboratories have different equipment, and the rules should provide some leeway to allow the analysts to perform their work in their own setting. As an example, Dr. Goldberger cited Florida Administrative Code Rule 11D-8.013(3)(c), which addresses the concentration range over which the procedure is calibrated. The calibration curve must be linear over the stated range. Dr. Goldberger noted that the range varies between laboratories, and even from day to day within a single lab. In Dr. Goldberger's lab, the range may be linear from 0.01 to 0.5 one day, and from 0.01 to 0.4 the next day. This variability is why the lab runs calibrators to verify the range, and includes the current range on the worksheet along with the testing data. Dr. Goldberger concluded that the variations make it impossible for FDLE to require a specific number for the range. As another example, Dr. Goldberger cited Florida Administrative Code Rule 11D-8.013(3)(d), which discusses the constitution and use of a calibration curve. Calibration curves also vary from lab to lab, and the rule allows for that variation. Dr. Goldberger stated that it would be possible to specify an exact concentration, but it would not be good practice and could not be done without retooling the labs. Dr. Goldberger conceded that it would be possible to develop a detailed checklist in a rule, but asserted that to do so would not be good science. If the rules dictated every aspect of the equipment and procedures to be used in the lab, then nearly every lab in the state would have to retool and purchase new gas chromatographs. The expense would be prohibitive and unnecessary in scientific terms. Dr. Goldberger asserted that there is no need for a detailed checklist in the rules because the labs performing blood alcohol testing in Florida all use validated methods and are adequately calibrated and controlled. The data verifying the labs' methods, calibrations and controls is available for expert review. Florida Administrative Code Rule 11D-8.014 establishes a proficiency testing program, requiring every analyst to undergo quarterly testing to make sure their work is satisfactory. Dr. Goldberger testified that he has worked in several labs during his 25-year career. The methods employed in each lab were essentially the same. The instruments vary from lab to lab, but the technique is the same. Some technological improvements have been made in newer gas chromatographs, but have not altered the essential techniques of gas chromatography, which have not changed in 30 to 40 years. Dr. Goldberger stated that, while a layman might not be able to look at the rules and know all the steps necessary to perform a valid blood alcohol analysis, an analyst would. Further, persons reviewing the analyst's work in the lab would know the steps because each analyst is required to file with FDLE a "standard operating procedures" ("SOP") document that is several pages long and minutely details the procedures used by the analyst. Dr. Goldberger testified that "SOP" is a term of art in the industry. He acknowledged that the challenged rules do not employ that term, but testified that the language in Florida Administrative Code Rule 11D-8.013(2)(a) requiring FDLE approval of "analytical procedure(s)" is understood to mean that applicants must file their SOPs. The SOP is the "analytical procedure" to be approved by FDLE. The SOP contains all the analytical parameters necessary to perform gas chromatography, including the temperature, column, and column length. The SOP sets forth the steps employed by the analyst. Dr. Goldberger gave examples of the initial steps in a typical SOP: step one would call for removing the batch of specimens from the refrigerator, step two would be a review of the specimen identification information on the tubes, and step three would call for preparation of the dilution standard for that day's work. As the analysis goes forward, the analyst prepares a worksheet documenting each step in the process. The worksheet is used as part of the validation process for that batch and also for the calibration and control of that batch. An expert reviewing the analyst's work can combine the SOP, the worksheet and the raw data of the analysis to reconstruct exactly what occurred in the lab. Thus, Dr. Goldberger concluded that a "checklist" of sorts is provided under the challenged rules by way of each analyst's analytical procedure, which FDLE initially approves and periodically reviews. Dr. Goldberger concluded that the current standard of practice in forensic toxicology labs is to use head space gas chromatography for the analysis of blood alcohols. The standard of practice allows for differences in methodology from one lab to another, assuming the methodology is performed correctly. These variations do not prevent a qualified analyst from knowing what is required to conduct a gas chromatograph blood alcohol analysis. Ms. Barfield, the manager of the Alcohol Testing Program, testified as to the program's duties. The program grants permits only to the analysts, not to laboratories. Approximately 66 analysts are currently permitted in Florida, and 11 Florida labs are used for this work. Some analysts hold two permits, because they use two different analytical procedures and a separate permit is required for each procedure. A potential applicant may obtain an application from the program's office or download it from the program's web page. The application requires the applicant to identify her employer, the lab facility to be used, and at least one agency for which the analyst will perform blood alcohol analysis. The applicant must identify the method to be used and must include a copy of her SOP. Once filed, the SOPs are maintained by the Alcohol Testing Program as a public record. The program releases permitting and proficiency test information upon request. Ms. Barfield stated that the "method" referenced by the rules is the type of test, i.e., gas chromatography or alcohol dehydrogenase. The "procedure" contemplated by the rule is the SOP, the actual set of steps that the blood sample will go through when that analyst performs a blood alcohol analysis. Ms. Barfield testified that this "procedure" equates to the statutory term "method of administration" found at Subsection 316.1932(1)(f)1., Florida Statutes. The "method of administration" is spelled out at Florida Administrative Code Rule 11D-8.013(3)(a)-(g). Ms. Barfield personally reviews the applications for blood alcohol analyst permits. When reviewing an application and its accompanying analytical procedures, Ms. Barfield uses Florida Administrative Code Rule 11D-8.013 as a checklist to ensure that all requirements have been met. She checks off each requirement of the rule that the application meets. If the proposed procedure discriminates between methanol, ethanol, acetone and isopropanol, she gives it a check. If it uses an internal standard, it gets a check. If it employs appropriate levels of standards and controls, it gets a check. The steps described in the analytical procedure become requirements of that analyst's permit and must be performed each time the analyst conducts a blood alcohol analysis. Ms. Barfield also gives proficiency tests pursuant to Florida Administrative Code Rule 11D-8.013(2)(b). In a proficiency test, the applicant must use the proposed procedure to correctly determine the blood alcohol level in five proficiency samples provided by the Alcohol Testing Program. Ms. Barfield testified that the rules do not prescribe the specific steps to be used in the analytical procedure because there are many different laboratories and many different ways to achieve an accurate and reliable blood alcohol result. As an example, she described her own procedure in comparison to that of the lab at the University of Miami: I'm in the FDLE laboratory and I'm using a PerkinElmer gas chromatograph . . . and I'm going to prep my samples, meaning taking the blood vial that I receive, and I'm going to aliquot for a sample 50 microliters of that blood and put it in the correct container to be able, to be analyzing it. The head space gas chromatography has a special little container. You do not stick the blood vial on the autosampler. Anyway, you're aliquoting 50 microliters, and I'm going to do that twice because my procedure says I have to do it twice and the rule says I have to do it twice, and . . . I'm going to dilute it with n-propanol internal standard and I'm going to dilute it with a thousand milliliters of internal standard, and my n-propanol internal standard is at a .02 concentration. I put it on the gas chromatograph, and it's a head space autosampler, and I'm going to heat that bottle up to 60 degrees [Celsius] in order for equilibriation to occur between the alcohol in the blood and the alcohol in the head space above it, and I'm going to inject my needle into that. I'm going to leave the needle in there .02 seconds. I'm going to withdraw for .05 seconds. I'm going to put it on a transfer line that's 90 degrees C, and I'm going to run it through a gas chromatograph whose column on the inside is heated up to 55 C, and I'm going to detect it with a flame ionization detector. That's all great. That's the steps. That's the FDLE laboratory. We get a good result, a valid, reliable result. . . . The University of Miami, they use a Hewlett- Packard gas chromatograph. It has an autosampler on it, too, and to prep their samples, they don't have an automatic sampler to get the blood out where they can automatically sample 50 microliters and dilute it with 1,000 milliliters of internal standard. They're going to use pipettes. They're going to manually do it. Their sample size is 500 milliliters of blood. They automatically pipette their 500 milliliters of blood, put it in the special container for the autosampler. They're only diluting with 500 milliliters of internal standard, and their internal standard concentration is a .04. They seal off their bottle. They put it on the autosampler. They decide to equilibrate for 22 minutes at 50 C. The other lab was at 60. Their transfer line is-— they're going to inject for .05 seconds and withdraw for .05 seconds, and they're going to use their transfer line heated to 85 Celsius, and their gas chromatograph was heated to 50 Celsius, and they use a flame ionization detector, because most everybody does. Those are all little different parameters, right, but I just described two procedures, and the end result is they get the same answer. All the little minute things are laboratory-specific for the equipment that they have, everything from how they pipette the sample out of [the] blood tube to how they analyze it and the temperatures and the pressures and the operating parameters, transfer line temperatures, things like that, those are all individualized to a laboratory, and just because they're different doesn't make it wrong. To further go along with the description of their method and the overall requirements of the procedure that we're looking at, I proficiency test the analysts from the University of Miami. They're using different temperatures. They're doing things a little bit differently. Granted, everything's about-— generally, it's the same, but the temperatures are different and things like that. I proficiency test them before I even give them a permit, and both of their procedures provide accurate and reliable results, and that's why it's not detailed down to the minutia in that particular section [of the rule], because there are differences that can occur in the grand scheme that don't affect the overall end result. Ms. Barfield agreed that it would be possible to write a rule to encompass every detail for each of the labs, but stated that it is not scientifically necessary to enact such a rule. She further stated that such a rule would not be feasible because it would require every lab to have the same equipment and procedures, from pipetting the blood sample to the gas chromatograph to the autosampler to the same gases, operating at the same temperatures. Ms. Barfield testified that it would not be feasible to impose the same criteria for every procedural step in every lab without incurring an enormous outlay of money. She noted that a gas chromatograph alone costs around $50,000. Ms. Barfield acknowledged that Florida Administrative Code Rule 11D-8.003(2) specifically approves two, and only two, instruments for the conduct of breath tests: the Intoxilyzer 8000 and the Intoxilyzer 5000. FDLE rules also call for the Alcohol Testing Program to register and conduct validation inspections of particular breath testing machines. Fla. Admin. Code R. 11D-8.004. When questioned as to why FDLE did not regulate gas chromatographs in the same manner, Ms. Barfield replied that any comparison between breath and blood testing is "apples to oranges." There is no need for the rules to identify "approved" gas chromatographs because all of the commercially available machines do the job for which they are designed. Breath testing is complicated by the fact that law enforcement personnel are operating scientific equipment; having a multitude of different testing instruments could jeopardize accuracy. It is preferable to train all breath test operators on the same equipment. In contrast, the gas chromatographs used in blood testing are being operated by professional analysts who have their own standards of practice. Thus, there is no need to standardize the equipment used in blood testing. Ms. Barfield failed to note that Subsection 316.1932(1)(a)2., Florida Statutes, states: "The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments." (Emphasis added.) The statute charges the program with responsibility for the regulation of persons who operate, inspect and instruct on the breath test instruments, and for analysts who conduct blood testing, but nowhere does it specifically authorize the Alcohol Testing Program to regulate blood testing instruments. The apparent lack of statutory authority to regulate the gas chromatographs used by blood testing labs convincingly supplements Ms. Barfield's more practical reasons for the lack of a rule on this subject. Dr. Masten testified for Petitioner that it is possible to create a checklist for performing a gas chromatographic analysis of blood alcohol content. He also stated that a checklist such as those used by quality assurance auditors might be a desirable way to standardize operations and lessen the potential for error. However, Dr. Masten also conceded that alternate methods can achieve reliable, accurate results, and that proficiency testing can assure such results. Two analysts in different labs may use variations on the gas chromatography method, such as different temperatures and pressures during the testing. Dr. Masten knew of differences in instrumentation between FDLE's labs in Tallahassee and Orlando. However, if each analyst passes proficiency testing, then each analyst's processes are validated. Dr. Masten testified that there are a number of different manufacturers of gas chromatograph instruments, which vary in terms of their capacity but otherwise achieve reliable results in blood testing. Different gas chromatographs use different materials in their columns. There are also several internal standards that are acceptable. Dr. Masten defined a methodology as a set of specific conditions, some of which are columns, temperature, pressure of the gas flow or rate of the gas flow, and the type of machine. These are all different parameters that are normally addressed in the SOP. Reasonable scientists can disagree as to certain parameters, such as the amount of dilution. Dr. Masten stated that the prime criterion for any set of conditions is to prove they work. Because gas chromatography has so many variables, there is a large matrix of different conditions that potentially achieve correct results. These conditions vary from lab to lab, and to a lesser degree from analyst to analyst within a lab. If an analyst's method is validated, it can be used to reach an accurate and reliable test result. The greater weight of the expert testimony at the instant hearing established that a perfectly uniform manner of performing either gas chromatography or the alcohol dehydrogenase analysis would not be scientifically sound nor economically feasible. Dr. Goldberger reasonably opined that a defendant is provided with the equivalent of the "checklist" desired by Petitioner: the SOP, the analyst's worksheet, and the raw data of the analysis provide a reviewing expert with all the necessary information to contest the analyst's work. The fact that all SOPs are not perfectly uniform in accordance with the idealized rules envisioned by Petitioner is less important than the fact that all SOPs and analysts' test results are available as public records and may be reviewed for their accuracy and reliability. The evidence at hearing established that blood alcohol testing is dissimilar to breath testing. Specific instruments must be approved for breath testing because law enforcement personnel operate the instruments. Uniformity of equipment helps to simplify the permitting process and helps to ensure accuracy in testing. Also, Ms. Barfield at least suggested that there may be breath instruments on the market that are themselves unreliable. In contrast, the expert testimony at hearing established that all commercially available gas chromatographs perform their intended functions, and that blood alcohol analysts are trained professionals able to operate according to their labs' SOPs, without detailed, step-by-step instruction imposed by FDLE rules. The evidence established that Florida Administrative Code Rules 11D-8.011 and 8.013 substantially comply with their statutory authorities. Test methods are established by Rule 11D-8.011. Methods of administration are found in the uniform permitting criteria set forth in Rule 11D-8.013(3)(a)-(g). Dr. Goldberger testified at length regarding the development of the rules, and Ms. Barfield described the application of the rules during the permitting process and in the laboratory. Both of these experts agreed that it would be poor science to require every analyst in the state to perform testing according to the standards of a single laboratory. The science of gas chromatography in blood alcohol testing simply does not require such rigidity.9 The challenged rules reasonably set forth permitting criteria and proficiency testing that insure the scientific reliability of the blood alcohol testing carried out by analysts operating under permits issued by the Alcohol Testing Program of FDLE. No evidence was offered by either party regarding the necessity to specify the types or amounts of preservatives and anticoagulants that must be contained in the glass evacuation tubes used to collect blood samples. No evidence was offered by either party as to the necessity to specify a range of temperatures for the refrigeration of blood samples collected pursuant to the implied consent law.
The Issue The issue in this case is whether the Respondent, Lauderdale Copa, Inc., d/b/a The Copa (Respondent or The Copa) should pay an alcoholic beverage surcharge in the amount of $18,960.48 as alleged by the Administrative Complaint dated March 27, 2006. The Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner or Department) claims that the surcharge is owed and due pursuant to Sections 561.502(2) and 561.29, Florida Statutes (2005).
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating the alcoholic beverage industry within Florida. § 561.501 Fla. Stat. (2005). At all times material to the allegations of this case, the Respondent was a licensed entity authorized to sell alcoholic beverages pursuant to its license number 16-00516, Series 4-COP. The Copa was authorized to sell liquor, wine, and beer at its licensed premises for on-site consumption. Alcoholic beverage sales are subject to a surcharge. § 561.501 Fla. Stat. (2005). In addition to other sales taxes that may be imposed on the sale of the product, an alcoholic beverages licensee (such as the Respondent) must also collect and remit to the Department a surcharge on the sale of the alcoholic beverage. The amount of the surcharge remittance is computed pursuant to the guidelines set forth in the laws and regulations. To confirm accurate reporting and remittance of the surcharge, the Department conducts after-the-fact audits of licensees. In this case, the Department audited The Copa’s alcoholic beverage sales for period from November 1, 2002, through October 31, 2005 (the audit period). There are two methods to review or audit the sales of alcoholic beverages. The inventory method directs the Department to take the beginning inventory plus purchases for the period and subtract the ending inventory (and a spillage allowance) to calculate the sales for the period. The calculated sales volume is then used to derive the surcharge obligation. The second method is based on the actual sales incurred during the audit period. The sales method requires that the licensee keep records to verify the volume of actual sales. The surcharge is due based on the on-premise consumer’s purchase of the alcoholic beverage at the licensed site. Both of the methods described require that the licensee keep and maintain records. The inventory method is verifiable since licensees purchase their stock from vendors also regulated by the Department. On or about October 24, 2005, Hurricane Wilma struck Florida and crossed to the Atlantic Ocean from the west coast. The storm caused extensive damage to the Respondent's property. The Respondent claims that its beverage records were lost in the storm. The audit in this case used the inventory method to compute the surcharge. By using the distributors’ sales reports the Department calculated a surcharge owed in the amount of $11,257.52. To that amount the Petitioner seeks interest and penalties. The Respondent does not acknowledge that any surcharge is owed. The Respondent maintains that its inventory, records, and package sales information (alcoholic beverages not consumed on the premises) were lost in the storm. The Department gave the Petitioner over five months to obtain records from other sources to refute the audit findings. As of the date of the formal hearing in this case, the Respondent did not have any records to refute the audit findings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order sustaining the surcharge liability in the amount of $18,960.48. DONE AND ENTERED this 6th day of December, 2006, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2006. COPIES FURNISHED: Gregg Bernard Lauderdale Copa, Inc., d/b/a The Copa Post Office Box 22961 Fort Lauderdale, Florida 33335 Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages And Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2018.
Findings Of Fact On July 6, 1982, Jimmy Haywood Nixon, an employee off petitioner, took a sample of gasohol offered for sale as "super unleaded ethanol enriched" (by pumping it through a nozzle) at the 7-11 food store, 111 West Burgess Road, Pensacola. He delivered the sample to Pat Flanagan, a chemist with petitioner's mobile lab No. 2. According to Mr. Flanagan, there was a third again too much alcohol in the mixture. He was of the opinion that the high alcohol content accounted for the low (1590F.) "50 percent evaporated temperature." Being advised by Mr. Flanagan that the gasohol was nonstandard, Mr. Nixon returned on July 7, 1982, to lock the pump. Later that day, after posting bond, respondent's Mr. Cooper tried to figure out how much unleaded gasoline to add to the 4,589 gallons in the 7-11 tank in order to reduce the fraction of alcohol to one-tenth. To this end, samples taken, not from the nozzle, but from deep in the tank were analyzed. Mr. Flanagan performed the same procedure on the tank sample as he had run on the nozzle sample. He added dyed ethylene glycol to the sample, shook the mixture and waited for it to stratify. Then he measured the amount by which the dyed layer had grown. This increment was assumed to be pure alcohol. The tank sample test indicated that the mixture was 12.3 percent alcohol, a full point less than the nozzle sample's ethanol component. The difference is presumably attributable to slight stratification in the tank. Mr. Cooper also performed a test. This test employed the same methodology as Mr. Flanagan's test, but the reagent was distilled water rather than ethylene glycol, and the result was 9.8 or 9.9 percent alcohol. It may be that additives other than ethanol dissolved in the ethylene glycol. On July 9, 1982, Mr. Cooper arrived in a compartmented truck with an empty chamber for blending, 100 gallons of alcohol, and 1500 gallons of unleaded gasoline. He added 1300 gallons of unleaded gasoline to the tank and blended the mixture. This resulted in 5889 gallons that tested at 7.5 percent alcohol, so all 100 gallons of alcohol were added. The resulting mixture tested at 9.167 percent alcohol.
Recommendation This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 29, 1982. Respondent was unrepresented at the hearing, but Mr. Donald P. Robinson, respondent's treasurer, was oresent and was, without objection, called as a hearing officer's witness. Petitioner was represented by counsel: Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32301 In order to secure the release of certain gasohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gasohol was nonstandard when impounded and what disposition to make of the bond respondent posted.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
The Issue Whether Respondent should be dismissed from his employment as an instructor at Chipola Junior College for alleged misconduct in office, incompetency, willful neglect of duties, and drunkenness, as set forth in the Complaint Recommending Dismissal, dated July 31, 1981. This proceeding commenced with the issuance of a Complaint Recommending Dismissal by the Interim President of Chipola Junior College alleging that Respondent James T. Sims, an instructor, should he dismissed for misconduct in office, incompetency, willful neglect of duty, and drunkenness. Respondent filed a petition for formal hearing pursuant to Section 120.57(1), Florida Statutes, on August 13, 1981. The matter thereafter was referred to this Division for the appointment of a Hearing Officer. At the hearing, Petitioner presented the testimony of Dr. Richard E. Morley, Interim President of Chipola Junior College; Dean James A. Lewis, Dean of Academic Studies; and Alice J. Story, Chairman of the Division of Natural Science and Mathematics. Respondent testified in his own behalf, and submitted the testimony of Dr. Jack Golden, Director of the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida. Four exhibits were received into evidence. The memorandum brief of Petitioner, and Respondent's memorandum have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact Respondent James T. Sims has been an instructor at Chipola Junior College, Marianna, Florida, since 1959. In 1962, he entered into a continuing contract with the Beard of Public Instruction of Jackson County, Florida to continue in the capacity of a teacher at the college. At some undisclosed date, responsibility for the college became vested in a Board of Trustees at which time existing continuing contracts with the county Board of Public Instruction were apparently honored by the Board of Trustees without execution of new contracts. (Testimony of Respondent, Morley, Exhibit 1) Respondent's personnel file reflects that he was the subject of a number of memoranda from his supervisors commencing in 1975, concerning late or non-attendance of faculty meetings, early dismissal of classes, award of high grades to students who did not attend class, and unexcused absences. A "confidential" letter from Joiner Sims, Chairman, Division of Natural Science and Mathematics at the college, to Respondent, dated October 17, 1977, expressed concern over a "serious personal problem" that Respondent had had for several years which Sims had offered to help him solve, but stated that if he were found under the influence of alcohol on campus in the future, he would recommend Respondent's dismissal or return to annual contract. A memorandum from Chairman Joiner Sims to Respondent in March, 1978, recited that Respondent had been absent from classes on two occasions during the semester without advance notification. In September, 1979, President Raymond M. Deming met with Respondent, Dean of Academic Studies James A. Lewis, and Miss Josephine Story, then Chairman of the Division of Natural Science and Mathematics. A memorandum in Respondent's personnel file, dated September 10, 1979, of President Deming, reflects that during this conference Dean Lewis advised Respondent to quit drinking with the assistance of medicine, and that Respondent acknowledged that he liked to drink and had done quite a bit of drinking, but denied doing so on the college campus. The college officials offered to do anything they could to aid Respondent and he expressed appreciation for their consideration. (Testimony of Lewis, Story, Exhibit 1) A further memorandum from Dean Lewis to Miss Story on November 19, 1979, reviewed his concern about complaints from members of the community about Respondent's behavior off campus and his lessened effectiveness as an instructor over the past several months as a result of his "alcoholic problem," such as dismissing class early and absences from his office during office hours. By the memorandum, Dean Lewis requested that Miss Story direct Respondent to meet assigned classes for the full period, observe posted office hours, adhere to college rules, and insure that he understood that an immediate and permanent change in his performance was expected. Accordingly, by memorandum of November 20, 1979 to Respondent, Miss Story reviewed student complaints she had received concerning Respondent's late arrival at classes, assigning problems with little or no explanation, dismissing classes early, and coming to school sometimes smelling of alcohol. Miss Story had frequently failed to find Respondent in his office during office hours and she also noted this in her memorandum. The memorandum therefore directed Respondent specifically to cure the stated deficiencies. The memorandum had been preceded by a conference with Respondent on November 19th at which time Miss Story had reviewed Respondent's shortcomings, offered suggestions for improvement, and told him that if he found it impossible to abide by the conditions she had stated in her memorandum of November 20th, she would recommend that he be given the option of taking a semester's leave of absence to seek professional help. At the conference, Respondent assured her that he would take appropriate action to prevent further complaints. (Testimony of Story, Exhibit 1) Respondent's personnel file reflects that the President of the college Student Government Association wrote to President Deming on November 29, 1979, stating that Respondent had come to class several times unable to properly teach because of his "current problem of alcoholism" which prevented him from doing his job, that it was common knowledge to the students and faculty that he had a severe alcohol problem, and that his reputation would hurt the college greatly. In a letter to Miss Story dated December 12, 1979, Respondent denied the allegations. (Exhibit 1) In a letter dated December 17, 1979, President Deming informed Respondent that his image at the college and in the community should be a subject of great concern and that it may become necessary to request that Respondent submit himself to a physical examination if deemed necessary, and that if he ever came on the campus under the influence of alcohol he would be removed from the classroom and "immediate action would be taken." In another memorandum from Miss Story to Respondent dated June 3, 1980, she noted that although he had made a real effort toward improvement during the spring semester she had observed that several of his summer session classes had been dismissed before the end of the period, and cautioned him about maintaining class schedules. She explained the contents of her memorandum to Respondent in a conference on June 23rd and confirmed this with a memorandum dated June 25, 1980. In a further memorandum dated July 1, 1980, Dean Lewis reviewed past memoranda concerning Respondent that were contained in the latter's personnel file, and noted that "a pattern has developed that appears to be growing progressively worse." (Testimony of Story, Lewis, Exhibit 1) On March 31, 1981, Dean Lewis went to talk with Respondent during scheduled office hours but found that he had dismissed a class early and had not returned to his office. After searching around the campus, Lewis went to Respondent's home and, after no one answered his knocks at the door, went inside fearing that Respondent might be ill. He found Respondent watching television with a drink of some kind in his hand. Respondent told Lewis that he had gone home to take his medicine. Based on this incident, Dean Lewis sent a memorandum to President Deming with a copy to Respondent recommending that Respondent be given the opportunity to take off both 1981 summer sessions and the fall semester to seek professional help "with his problems" and that if he did not elect to do so, that either dismissal or some lesser action be taken against him. President Deming reprimanded Respondent in a letter dated April 10, 1981, wherein he again reviewed Respondent's past actions as reflected in memoranda in his file, restated the requirements that had previously been placed upon him as to his conduct, and stated that even one deviation from any of those directives would result in an immediate suspension and recommendation of dismissal. Respondent, by letter to President Deming, dated April 23rd defended his actions on March 31 by stating that he had been ill and attached copies of prescriptions for medicine issued on March 24 and 26 for throat pain. He claimed that he was only drinking a glass of water when Dean Lewis arrived at his home, and that his only dereliction was in failing to notify anyone that he was leaving the campus. (Testimony of Lewis, Exhibit 1) In another incident that occurred on June 15, 1981, during registration for the summer session, at which time Respondent was supposed to be counselling students, Dean Lewis observed that Respondent could not walk straight and did not appear rational. He appeared to be either sick or under the influence of alcohol, but Lewis could not smell anything on his breath. He felt that Respondent was in no condition to counsel students and carry out his duties. (Testimony of Lewis, Exhibit 1) On July 27, Miss Story recommended to Dean Lewis that Respondent be relieved of his teaching duties, and Lewis recommended to Dr. Morley, the Interim President, that Respondent be removed as a member of the faculty. Interim President Morley thereafter had a conference with Respondent at which he gave him the opportunity to resign or face dismissal action. Respondent declined to resign, and the Complaint Recommending Dismissal was issued by Morley on July 31, 1981. (Testimony of Morley, Lewis, Story, Exhibit 1) Miss Story and Respondent have philosophical differences regarding grading practices. Respondent uniformly gave high grades to his students and Miss Story felt that this was not in keeping with standard college practices. Respondent consistently received satisfactory evaluations of his performance regardless of his deficiencies, and both Dean Lewis and Miss Story justified this as an effort to encourage him to improve his performance. Neither questioned his knowledge of subject matter or teaching ability, but are of the opinion that his cumulative record establishes that his instructional ability has been impaired and he is a detriment to the institution. (Testimony of Lewis, Story, Exhibit 1) Respondent received treatment in the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida, in late August, 1981, for the program period of 28 days. The program involves psychotherapy which assists one suffering from the disease of alcoholism to regain his "self-concept," and learn about the addiction process and the person's own value and belief system. After the inpatient phase, the individual becomes involved in an aftercare program which includes a weekly meeting with counselors at the Medical Center, participation in Alcoholics Anonymous, and regular use of "Antabuse" to prevent lapses from abstention. A year is the normal recovery period. Since his discharge from Capital Medical Center in September, 1981, Respondent has been involved with the aftercare program. He has missed several of the meetings and on at least one occasion failed to take his Antabuse, became intoxicated, and was arrested for driving under the influence of alcohol in Marianna on October 21, 1981. Dr. Jack Golden, the Director of the Alcoholism Treatment Program, finds that it is not unusual for someone in Respondent's situation to not follow up completely with the aftercare treatment, or to experience at least one period of drinking during the first year of recovery. About 95 percent of his cases, including that of Respondent, involve the "denial process" for varying periods in which the individual cannot make sound judgments and refuses to recognize that he has a problem with alcohol. The disease, which has been recognized as treatable, is biological in nature in which the chemical system of a patient reacts differently to the drug of alcohol than does that of normal individuals. In most cases, persons will not seek assistance unless some crisis arises, or they are placed under coercion of some sort. In Respondent's case, the fact that he was being considered for dismissal prompted him to seek assistance. The treatment program has been experiencing about a 90 percent success rate if an individual remains in the program for one year with a six-months follow-up period thereafter. Although public intoxication has been decriminalized and alcoholism primarily placed in the health care system, it does not serve as an excuse for criminal activities. A state policy adopted in 1973 applicable to Career Service employees provides for termination of employment of persons suffering from alcoholism only if they refuse to seek treatment. (Testimony of Golden, Respondent) Respondent conceded at the hearing that he is an alcoholic and that he had committed himself to treatment which has benefited him to the point where he believes he can resume his normal career after successful completion of the treatment program. He admitted that he had dismissed classes early at various times and failed to keep proper office hours. However, he denied that he had ever been under the influence of alcohol while on the college campus and, in fact, had not consumed any alcohol for approximately six (6) months prior to the filing of the instant charges against him. He admitted that there was truth to the various other complaints that had been made against him over the years, but that some had been exaggerated to some extent. He did not take any initiative to reguest a leave of absence to seek treatment during the lengthy period because he was in what had been described as the "denial stage" of alcoholism. He produced a doctor's statement to the effect that he had had episodes of acute syncope, bradycardia, hypertension, cardiac arrhythmia, and fluid retention. The statement reflected that his "intermittent confusion, unstable gait and extreme weakness at times have probably been directly related to his electrolyte imbalance." Respondent also submitted a number of letters from various individuals, including students, attesting to his excellence as a mathematics instructor and to their lack of knowledge as to any problems with alcohol while on campus. (Testimony of Respondent, Exhibit 3, Composite Exhibit 4)
Recommendation That the Board of Trustees of Chipola Junior College dismiss Respondent, James T. Sims, from his employment as an instructor for incompetency and willful neglect of duty pursuant to Rule 6A-14.411(6), Florida Administrative Code. DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1981. COPIES FURNISHED: Richard Wayne Grant, Esquire 209 North Jefferson Street Post Office Box 209 Marianna, Florida 32446 Philip J. Padovano, Esquire Post Office Box 872 Tallahassee, Florida 32302 John E. Roberts, Esquire Post Office Box 854 Marianna, Florida 32446
