The Issue The issue in this case is whether a form created by the Florida Department of Law Enforcement's Alcohol Testing Program constitutes a "rule" as defined at section 120.52(16), Florida Statutes (2012).1/
Findings Of Fact Petitioner Robert Berry is a licensed and active driver in the State of Florida who is subject to the "implied consent" provisions of section 316.1932, Florida Statutes. Petitioner Jill Humphrey is a defendant in a criminal prosecution pending in Brevard County, Florida. Ms. Humphrey was arrested and charged by the State of Florida with driving with an unlawful breath alcohol level, after having submitted to an alcohol breath test pursuant to section 316.1932. In addition to the charge of driving with an unlawful blood alcohol level, Ms. Humphrey is also being prosecuted under the theory that her breath alcohol test results were sufficient to create a presumption under section 316.1934 that she was driving under the influence of alcohol to the extent that her normal faculties were impaired. The State of Florida has asserted that all applicable statutes and administrative rules were met related to the breath alcohol test administered to Ms. Humphrey and that the results of the test are admissible at trial. Pursuant to section 316.1932(1)(a)2. and Florida Administrative Code Chapter 11D-8, the Alcohol Testing Program (ATP), a unit within the Respondent, is responsible for the operation, inspection and registration of the "Intoxilyzer 8000" breath testing instruments used for conducting breath alcohol tests on drivers suspected of "driving under the influence" (DUI) in Florida. Each instrument is subjected to an annual inspection performed by the ATP at its laboratory in Tallahassee, Florida. Local law enforcement agencies ship the instruments to Tallahassee for the annual inspection. Rule 11D-8.004 provides as follows: Department Inspection and Registration of Breath Test Instruments. The Department shall register and inspect a breath test instrument prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates the instrument's approval for evidentiary use, and the registration denotes an instrument approved pursuant to these rules and shall reflect the registration date, the owner of the instrument, the instrument serial number, the manufacturer, and the model designation. Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use. Department inspections shall be conducted in accordance with Department Inspection Procedures FDLE/ATP Form 35 - Rev. August 2005 for the Intoxilyzer 5000 Series, or Department Inspection Procedures - Intoxilyzer 8000 FDLE/ATP Form 36 - Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 26 - Department Inspection Report--Rev. March 2004 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 41 - Department Inspection Report - Intoxilyzer 8000 - Rev. August 2005 for the Intoxilyzer 8000. Department Inspectors shall be employed by the Department to register evidentiary breath test instruments, to conduct inspections and maintenance of breath test instruments and related equipment and facilities, to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8, F.A.C. (emphasis added). The inspection procedures applicable to the Intoxilyzer 8000 are set forth in FDLE/ATP Form 36, the "Department Inspection Procedures" form, and have been incorporated into the Florida Administrative Code by reference at rule 11D-8.017. The ATP inspectors have used a variety of methods to document their observations of the instruments submitted for inspection, including individual notes generated by the inspectors. In April 2012, the ATP created a form, called the "Instrument Processing Sheet," to organize and track the passage of each instrument through the inspection process. The parties have stipulated that the Petitioners are substantially affected by the Instrument Processing Sheet form. Although the Respondent does not require that the ATP inspectors use the Instrument Processing Sheet, inspectors uniformly use the form to document the receipt of the instruments from local law enforcement agencies and their condition upon receipt. The form prompts inspectors to visually review the physical condition of each instrument, including such items as the case, keyboard, handle, feet, "tight screws," and "dry gas holder." Additionally, the form is used to guide inspectors through a review of the mechanical function of the instrument by a series of "quality checks" performed prior to the actual inspections. The checks are used to ascertain whether specified components within the instrument are in good working order and to document any related adjustments made to an instrument prior to the inspection. An instrument that requires repair outside the expertise of the ATP is shipped to an authorized repair facility. Upon the return of an instrument to the ATP from a repair facility, the ATP performs a full inspection of the instrument before it is returned to a local agency. In November 2012, the form was revised to document shipment of an instrument to a repair facility. The challenged form has not been adopted by rule. The Petitioners assert that the form constitutes a "rule" that must be subjected to statutory rulemaking requirements. At the time of the hearing, the Respondent was preparing a digital version of the form that would permit the processing of each instrument to be tracked electronically. One of the quality checks set forth on the form verifies the mechanical operation of the instrument's "flow sensor." A flow sensor monitors the passage of lung air through an instrument during a breath alcohol test and triggers an audible "tone" when the breath being generated by a test subject is sufficient to provide a scientifically reliable breath sample. According to the form, an inspector should observe the instrument's ability to differentiate between airflow levels by conducting a series of specific air pressure tests. If the test results indicate that the sensor responds inaccurately, the sensor is calibrated to correct the response. The form prompts the inspector to record the initial test results, as well as post-calibration test results if calibration is required. The flow sensor may also be replaced to correct a defect. After quality control checks have been completed, the ATP inspection is conducted according to the procedure set forth in FDLE/ATP Form 36. The results of the ATP inspection are reported on FDLE/ATP Form 41, the "Department Inspection Report - Intoxilyzer 8000" form, which is incorporated into the Florida Administrative Code by reference at rule 11D-8.017. The Respondent is not required by statute or rule to record the specific results of a flow sensor test administered prior to the annual inspection. The Respondent is required by FDLE/ATP Form 36 only to ascertain and report whether the instrument is able to distinguish adequate minimum sample volume from inadequate minimum sample volume.
The Issue The issue in this case is whether Florida Administrative Code rules cited herein are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioners are defendants in "driving under the influence" (DUI) criminal prosecutions pending in Palm Beach County. The "Intoxilyzer 8000" is an alcohol breath testing instrument manufactured by "CMI, Inc." (CMI). Each of the Petitioners was arrested and charged with DUI after having submitted to an alcohol breath test on an Intoxilyzer 8000 instrument. The State of Florida intends to utilize the results of the breath tests in prosecuting the charges filed against the Petitioners. The Respondent's Alcohol Testing Program (ATP) is responsible for the operation, inspection and registration of alcohol breath testing instruments used for purposes of DUI prosecutions in Florida. Section 316.1932(1)(a)2., Florida Statutes, provides as follows: 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. The U.S. Department of Transportation maintains a "Conforming Products List of Evidential Breath Measurement Devices" (CPL) identifying various alcohol breath testing instruments that ostensibly meet applicable federal regulations. Pursuant to FDLE/ATP Form 34, incorporated by reference in rule 11D-8.017, the only alcohol breath test instruments that may be evaluated for use in Florida are those included on the CPL. On November 26, 2001, the Respondent received notice that the Intoxilyzer 8000 met applicable requirements of the National Highway Traffic Safety Administration's model specifications for evidentiary alcohol breath testers and that the instrument was expected to be on the next published CPL. Thereafter, the Respondent began to review the instrument's suitability for use in Florida. The Respondent's evaluation was governed by the versions of rule 11D–8.003(4) and Form 34 in effect at that time. To the extent that the Petitioners' challenge is to specific rule requirements that have been deleted or superseded, such a challenge is outside the scope of this proceeding. In April 2002, the Respondent began testing the operation of two Intoxilyzer 8000 instruments received from CMI (serial numbers 80–00208 and 80–00209), but the tests were not completed due to software issues. In May 2002, the Respondent resumed testing the same two instruments, software malfunctions apparently having been resolved. One of the instruments (serial number 80–00208) successfully completed the testing process. An electrical problem halted the testing of the second instrument (serial number 80–00209). On October 3, 2002, the CPL that included the Intoxilyzer 8000 was published in the Federal Register (Vol. 67, No. 192). On November 5, 2002, the Respondent adopted rule 11D-8.003(2) identifying the Intoxilyzer 8000 as an approved alcohol breath test instrument. The rule currently provides as follows: Approval of Breath Test Methods and Instruments. The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. The Department has approved the following breath test instrumentation for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series--including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34--Rev. March 2004. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument. The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34--Rev. March 2004. The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. (emphasis added). Although the Respondent had approved the Intoxilyzer 8000 through the rule, it was not placed into service because development of Florida-specific software had not been completed at the time the rule was adopted. The Exhaust Purge Valve In August 2004, several of the Respondent's employees, including Inspectors Matthew Malhiot and Roger Skipper, traveled to the Kentucky headquarters of CMI to participate in development of software specifically applicable to the Intoxilyzer 8000 instruments that would be placed into service in Florida. CMI was in the process of testing a Florida-specific Intoxilyzer 8000 at the time of the trip. The instrument was being subjected to tests using gas samples containing known alcohol concentrations. The reports produced by the instrument were inaccurate, with the alcohol levels being underreported by the instrument. The Respondent's employees Malhiot and Skipper were aware of the issue and CMI's attempts to identify and remedy the cause of the inaccurate reporting. CMI implemented a variety of alterations to the instrument, changing out various hoses and connectors, and drilling a small hole through the instrument's "exhaust purge valve." The instrument eventually produced reports that accurately reflected the gas samples being used in the tests. Based on the CMI tests, the version of the Intoxilyzer 8000 placed into service in Florida includes a hole drilled into the exhaust purge valve. The decision to drill the hole was made by a CMI engineer. There was no evidence presented at the hearing as to the rationale underlying the engineer's decision to drill the hole. The exhaust purge valve is a mechanism utilized only during simulation testing and is not involved in actual alcohol breath testing as would be performed on someone suspected of DUI. The evidence is insufficient to establish that CMI's drilling of the hole in the exhaust purge valve caused the instrument to produce the expected results when tests were performed with gas samples of known alcohol levels. The Respondent has subsequently conducted tests to compare the operation of an Intoxilyzer 8000 with a hole drilled through its exhaust purge valve and the operation of an Intoxilyzer 8000 with an intact exhaust purge valve, and has found both instruments to perform accurately. The evidence fails to establish that breath test results are affected in any manner by the exhaust purge valve, whether or not there is a hole drilled through the valve. The Petitioners have asserted that the Respondent's "failure" to "re-approve" the Intoxilyzer 8000 after the hole was drilled in 2004, constitutes an invalid exercise of delegated legislative authority. The evidence does not establish that such a process was authorized or required by statute. An administrative rule in effect at the time of the April 2004 tests required that the manufacturer provide written notice to the Respondent as to "modifications" of approved devices. CMI did not provide the Respondent with written notice of the hole being drilled in the exhaust purge valve. Despite the lack of written notice, the Respondent was well aware of the drilled hole. The Respondent's employees Malhiot and Skipper both were present at CMI headquarters during the testing and were aware of the CMI engineer's decision to drill the hole. Laura Barfield, the manager of the ATP, was notified by a telephone call from Mr. Skipper that CMI had drilled the hole in the exhaust purge valve. In December 2004, the Respondent's rules were revised to delete the requirement that notice of written modification of approved instruments be provided to the Respondent. The Petitioners have asserted that the 2004 deletion of the required notification from the rule was an invalid exercise of delegated legislative authority. The assertion is outside the jurisdiction of this proceeding, which is limited to a determination as to whether the Respondent's currently existing rules constitute an invalid exercise of delegated legislative authority. In March 2006, the Respondent approved the Intoxilyzer 8000 for evidentiary breath testing usage in the State of Florida. An update to the software programmed into the instruments occurred in October 2006. The Petitioners have noted that case law has held modifications to the Intoxilyzer 8000 to render the test results unreliable. The Petitioners assert that, accordingly, the instrument should have been subjected anew to the approval process after a hole was drilled in the exhaust purge valve. On at least two occasions, local law enforcement agencies altered specific Intoxilyzer 8000 instruments after the Respondent had approved the specific instruments for use in evidentiary breath testing in 2006. Test results from such altered instruments have been determined by the courts to lack scientific reliability. The evidence fails to establish that local law enforcement agency alterations of individual Intoxilyzer 8000 instruments renders the Intoxilyzer 8000 model, as approved by the Respondent and placed into service in 2006, unreliable for its intended use when breath alcohol tests are properly administered by trained operators. The Petitioners' assertion that CMI's drilling of the hole in the exhaust purge valve requires that the Intoxilyzer 8000 be removed from the U.S. Department of Transportation's CPL is outside the jurisdiction of this proceeding. The Flow Sensor In order to obtain a scientifically reliable breath test result, a test subject must provide a continuous sample of "deep lung air" through the breath test instrument. A "flow sensor" in the instrument monitors the flow of lung air through the instrument and signals a constant "tone" when the air pressure being generated by a test subject is sufficient to provide an adequate breath sample. Pursuant to section 316.1932(1)(a)2., cited above, the Respondent is responsible for the curriculum used to train the local agency inspectors, as well as operators of the breath test instruments. The curriculum states that "a minimum acceptable record sample is defined as a breath sample that has met the minimum criteria of the instrument's analysis to ensure that the breath sample is reliable, including that the subject must provide a continuous breath sample of at least 1.1 liters of breath." Prior to use of a specific breath test machine by a local law enforcement agency for evidentiary purposes, the actual instrument must be inspected by, and registered with, the Respondent, pursuant to rule 11D-8.004, which provides as follows: Department Inspection and Registration of Breath Test Instruments. The Department shall register and inspect a breath test instrument prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates the instrument's approval for evidentiary use, and the registration denotes an instrument approved pursuant to these rules and shall reflect the registration date, the owner of the instrument, the instrument serial number, the manufacturer, and the model designation. Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use. Department inspections shall be conducted in accordance with Department Inspection Procedures FDLE/ATP Form 35--Rev. August 2005 for the Intoxilyzer 5000 Series, or Department Inspection Procedures-- Intoxilyzer 8000 FDLE/ATP Form 36--Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 26-- Department Inspection Report--Rev. March 2004 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 41--Department Inspection Report--Intoxilyzer 8000--Rev. August 2005 for the Intoxilyzer 8000. Department Inspectors shall be employed by the Department to register evidentiary breath test instruments, to conduct inspections and maintenance of breath test instruments and related equipment and facilities, to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8, F.A.C. (emphasis added). Each instrument is also inspected on a monthly basis by a local agency inspector pursuant to rule 11D-8.006, which provides in relevant part as follows: Agency Inspection of Breath Test Instruments. (1) Evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month. The agency inspection shall be conducted in accordance with Agency Inspection Procedures FDLE/ATP Form 16--Rev. March 2004 for the Intoxilyzer--5000 Series, or Agency Inspection Procedures--Intoxilyzer 8000 FDLE/ATP Form 39--Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 24--Agency Inspection Report--Rev. March 2001 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 40--Agency Inspection Report--Intoxilyzer 8000-- March 2004 for the Intoxilyzer 8000. * * * (3) Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection. The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use. (emphasis added). Flow sensor testing and calibration during an inspection is not specifically required by statute or rule. The Petitioners have asserted that the challenged rules are vague and fail to establish adequate standards for agency decisions because they do not require calibration of flow sensors during inspections. The evidence fails to establish that the absence of a specific rule requirement that flow sensors be calibrated renders the rules an invalid exercise of delegated legislative authority. The Respondent currently tests and, if necessary, recalibrates flow sensors as part of a quality control process during an annual inspection performed on each instrument being used in Florida in evidentiary breath testing. The Respondent developed the current method by which flow sensors are examined. Examination of flow sensors requires specialized equipment that is not presently available to local agency inspectors. The evidence is insufficient to establish that the scientific reliability of reported breath test results is related to the function of an instrument's flow sensor. The evidence establishes that the instrument will not report results of a breath alcohol test if the quantity of air provided by a test subject is insufficient.
Conclusions THIS CAUSE came before the Director, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), and enters this Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes. LI TAT 1. On September 20, 1997, the Division issued an Administrative Action against Respondent, a copy of which is attached hereto and incorporated by reference. 2. On April 15, 1997, an administrative hearing was held in 1 of 6 this matter in Ocala, Florida, before Administrative Law Judge Donald R. Alexander, the Division of Administrative Hearings, pursuant to §120.569 and §120.57(1), Florida Statutes. 3. On May 12, 1997, the Administrative Law Judge issued his Recommended Order in this cause. IN {e) T The Division hereby adopts and incorporates by reference the Findings of Fact, numbered 1 through 9, as set forth in the Recommended Order.
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.
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration. Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action. In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify. The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated. Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency. Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking. Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator. Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital. On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands. Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse. Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha. On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination. Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment. On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D. Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency. Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system. Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test. Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network. Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha. Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety. Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question. On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine. Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha. Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence. Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine. In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine. Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day. Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/ At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1996.
