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 At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, M & W Enterprises of Key West, Inc., held license number 54-00200, series 5COP, authorizing the sale of alcoholic beverages for consumption on and off the premises known as Stick N Stein, located at 1126 C & D Key Plaza, Key West, Florida (hereinafter "the licensed premises"). In October 1996, the Department undertook a beverage surcharge audit of the licensed premises for the period of September 1, 1992, through October 29, 1996.1 At the time, the premises had elected the "sales method"2 of reporting, and the Department proposed to determine whether the monthly reports submitted by the vendor were accurate by application of the "sales depletion method," as prescribed by Rule 61A-4.063(9), Florida Administrative Code. This formula uses beginning inventory, plus purchases for the period, less ending inventory, less spillage allowance, prescribed by Rule 61A-4.063(6), Florida Administrative Code, to ascertain sales for the period. Application of the formula to this vendor was complicated by a number of factors, including the nature of the vendor's business, the vendor's inventory practices, and the vendor's failure to maintain appropriate records. In this regard, the proof demonstrates that the licensed premises includes a liquor store, where alcoholic beverages are sold for consumption off-premises, and a bar area, where alcoholic beverages are sold for consumption on-premises. Alcoholic beverages are purchased for the premises in bulk, and stored in the liquor store or the storeroom (also referred to as the beer room or cooler). As need dictates, alcoholic beverages are transferred from the liquor store or the storeroom to replenish the bar's stock; however, no record is made to reflect this transfer or addition to the bar's inventory. Consequently, there are no records from which one can derive the data needed to drive the Department's formula or, stated otherwise, there are no records from which the quantities of alcoholic beverages sold for consumption on or off the premises may be reliably calculated. Notwithstanding the vendor's failure to maintain appropriate records, the Department agreed to accept the vendor's estimate of the percentage of each class of alcoholic beverage purchased during the audit period that it would attribute to NON-COP (non-consumption on premises) sales, and subtract those volumes from the volumes purchased during the audit period to derive the total gallons available for sale under the formula. Here, the deduction (credit) accorded the vendor for NON-COP sales as a percentage of purchases was, as follows: draft beer, 10 percent; bottle/can beer, 15 percent; wine coolers, 50 percent; wine, 90 percent; and liquor, 70 percent.3 To further drive the formula, the Department did an audit on October 29, 1996, to calculate the vendor's ending inventory. Notably, that audit (Petitioner's Exhibit 4) encompassed only the alcoholic beverages in the bar area, and failed to include an inventory of the alcoholic beverages in the liquor store and storeroom. By letter of June 24, 1997, Respondent was advised of the results of the audit, and the Department's conclusion that it owed $14,960.82, as beverage surcharge, penalties, and interest. Respondent, because the audit did not include the liquor store and storeroom inventory as part of the ending inventory calculation, disputed the results of the audit.4 Given the failing of the first audit, the Department performed an additional audit of Respondent's inventory on August 1, 1997. (Petitioner's Exhibit 3). That audit was restricted to the inventory in the liquor store and the storeroom, and did not include an inventory of the bar area. On August 8, 1997, the Department issued a new retail beverage surcharge audit report for the licensed premises. (Petitioner's Exhibit 2). That report reflected a total tax liability (beverage surcharge, penalties, and interest) of $12,279.76. Notably, the report was based on the August 1, 1997, inventory and not the vendor's inventory at the end of the audit period (October 29, 1996). Moreover, the audit that was used considered only liquor store and storeroom inventory, and omitted bar inventory. Respondent again disputed the results of the audit. Since the report did not apply the vendor's inventory at the end of the audit period (October 29, 1996) to drive the formula, the result reached could not be an accurate reflection of sales or surcharge liability for the audit period. Moreover, by omitting bar inventory as a component of ending inventory, the report overstated sales, and, therefore, overstated surcharge liability. Consequently, as Respondent argues, the audit does not provide a reliable indication of what, if any, surcharge is due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 26th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1998.
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 issues in this bid protest are whether, in making a preliminary decision to award a contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Request for Proposals On March 14, 2001, the Board authorized the issuance of a request for proposals to solicit offers on a contract for drug screening services. Soon, Request for Proposals No. 149-AA10 (the “RFP”) was issued. The purpose of the RFP, as stated on the first page thereof, was [t]o obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services both to meet the general requirements for collection and drug screening services; and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (Attachment A). The deadline for submission of proposals in response to the RFP was April 10, 2001. Page 3 of the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (the “Guide”) explained that applicants and employees are tested in the following circumstances: (1) upon application for full-time employment; (2) when "reasonable suspicion"1 exists to believe that an employee has impermissibly used drugs or alcohol; (3) as part of routine "fitness for duty" medical examinations2; and (4) as a "follow up" to an employee's completion of a drug rehabilitation program. Because the District employs persons performing safety- sensitive functions and persons who hold commercial driver licenses, the District must comply with a federal law known as the Omnibus Transportation Employee Testing Act (“OTETA”). Employees covered by OTETA are subject to pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, "return-to-duty" testing (after a positive test), follow-up testing, and annual testing. Guide, pp. 10-14. Unlike other employees, persons falling under OTETA are not subject to blood alcohol screening. Guide, p. 22. The type of drug test that the District most frequently requests involves urinalysis. For alcohol testing, breath analysis is the normal practice. Blood alcohol testing is used infrequently. The RFP did not explicitly disclose the District’s relative demand for these various types of tests. Section V of the RFP prescribed the technical requirements with which proposers needed to comply. Subsection C thereof stated, in pertinent part: The collection site is a place where individuals present themselves for the purpose of providing urine or blood specimens to be analyzed for the presence of drugs or alcohol. Page 15 of the Guide added that "[c]ollection sites shall have all of the necessary personnel, materials, equipment, facilities, and supervision to provide for the collection, security, temporary storage, and shipping or transportation of urine specimens to a certified drug testing laboratory." Section V, subsection K set forth four “location parameters [as] examples of locations which shall comprise the areas for collection and drug screening to insure [sic] convenience for applicants and employees.” These “location parameters” essentially divided the Miami-Dade County service area into quadrants. Section V, subsection L, provided in relevant part: “Mobile collection of specimens will be required at some of the Regional Transportation Centers[.]” The Guide, at page 15, further mandated that "[m]obile collection sites" be equipped and staffed "the same as" other collection sites. Section V, subsection M stated, in part: “A collection site is preferred in the area of 1500 Biscayne Boulevard, Miami, Florida 33132, for the convenience of any potential employees who wish to provide specimen collection concurrent with a scheduled interview by the Office of Human Resources.” Section V, subsection N, stated: At least one site in the North end and [sic] of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Section VI of the RFP, which addressed the cost of proposed services, instructed that [p]roposals must include an itemization of charges for collection of specimens, initial and confirmatory tests. Such itemized charges will be used in the event a retest is necessary. Retests required as a result of defective equipment, incorrect analysis, or misinterpretation shall be done at the expense of the provider. Section VIII provided that proposals would be “evaluated by [a] selection committee . . . comprised of representatives of the school district, in order to ascertain which proposal best meets the needs of the School Board.” The selection committee (hereafter, “committee”) was to be composed of one administrator each from five separate offices, which were designated in section VIII. Section VIII also established the evaluation criteria to be used by the committee, stating: Evaluation considerations will include, but not be limited to, the following: Responsiveness of the proposal clearly stating an understanding of the work to be performed meeting all the technical guidelines in [the Guide]. Cost may not be the dominant factor, but will have some significance. It will be a particularly important factor when all other evaluation criteria are relatively equal. Documentation of current certification by DHHS; qualifications of laboratory staff members; past experience and record of performance; verification of references. Location of the laboratory and planned method of pick-up from designated collection sites and transportation of specimens according to chain of custody protocol to the drug testing laboratory; turnaround time relative to volume of expected need; accessibility relative to volume of expected need. Primary emphasis in the selection process will be placed on the independence, background, experience, and service of staff to be assigned to the project. Expertise in the areas addressed in the RFP, and the ability to respond in a timely, accurate manner to the district’s requirements is essential. Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collection/testing. The School District reserves the right to reject any and all proposals submitted and to waive irregularities. . . . . Relevant Details About the Proposals Two proposers, Global and RN, submitted timely responses to the RFP. The following is a look at certain terms in their respective proposals. Global’s Proposal Global was the incumbent provider pursuant to a contract that had been entered into on June 11, 1997. Even before the establishment of the expiring contractual relationship, from 1995 forward, Global had provided general drug testing services for the District. In addition to that, Global had performed fingerprint analyses for the District prior to 1995. Thus, Global had a history with the District. In a Fee Schedule included at page VIII-1 of its proposal, Global quoted the following prices for services: Federal Drug Testing for OTETA covered employees $30.00 * * * Breath Alcohol Testing $25.00 After hour Services Flat fee per donor/employee . $75.00 plus regular testing fee Monday — Friday: 5:00 p.m. — 8:30 a.m. Saturday and Sunday All Day Florida Drug Free Work Place for general employee drug testing $25.00 * * * At page V-1 of its proposal, Global listed ten collection facilities, providing their addresses and hours of operation. According to the proposal, only one of these facilities stays open until midnight. Five of them close each weekday at 4:00 p.m., and four at 5:00 p.m. None is open on weekends. Global offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered a site in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And Global offered at least one site each in the north and south ends of Miami-Dade County, satisfying the geographic requirements of subsection V.N. Global’s south-end site, however, closes at 5:00 p.m. and thus fails to satisfy the requirement, also prescribed in subsection V.N., that such facility remain open until midnight. In addition to these stationary facilities, Global offered the services of a mobile unit. Its proposal stated: ON-SITE COLLECTION After Hours Emergency24 hours Operating hours: Monday — Sunday Via Mobile Unit Global described its mobile unit, at page V-2, as a “self contained air conditioned motor coach equipped with 2 bathrooms, blood drawing chair, urine collection equipment, computerized breach alcohol analyzer with ample facilities for a physician to conduct physical exams on DOT (OTETA) employees and yearly re- certification.” Global, in fact, has three of these mobile units. The vans are available for use by all of Global’s clients. Two vehicles are maintained in Fort Lauderdale, Broward County, Florida, and thus are in position to respond to service calls for the District. The third van is maintained in western Palm Beach County. Because after-hours tests generally are needed in post-accident and reasonable suspicion circumstances, which require a rapid response (within two hours of the incident), the Palm Beach County-based van would not, as a practical matter, likely be deployed for the District. Global does not maintain a mobile unit in Miami-Dade County. B. RN’s Proposal Included in RN’s proposal was the following schedule of costs: RN Expertise charges $27.80 for a 5 panel NIDA drug screen. This charge includes an adulterant panel, 5 panel drug screen, collection of the specimen, transportation charges and MRO charges. There will not be a charge for confirmation tests. RN Expertise charges $26.00 for an 8 panel drug screen. This charge will include an adulterant panel, 8 panel drug screen, collection of the specimen, transportation charges and MRO charges. If the School Board does not elect to have an adulterant panel performed on general tests the charge will be $25.00. RN Expertise charges $25.00 for a breath alcohol test. This also includes on- site testing charges. There will not be a charge for confirmation tests. RN Expertise will charge $30.00 for a blood alcohol test. RN Expertise will submit monthly invoices. These invoices will be submitted to the Office of Operation and Records and/or the Office of Professional Standards (OTETA) through a purchase order. The invoices shall reflect service provided to the Board in the prior month. Regarding collection sites and locations, RN’s proposal stated, at pages 12 through 13: Quest Diagnostics [the laboratory that RN proposed to use] has 14 collection sites in the Miami-Dade County area. Please see Appendix B for all maps of locations and zip code map with all locations that have been highlighted for your convenience. RN Expertise, Inc. will provide all on- site drug screen collections and breath alcohol tests. We have numerous certified collectors and breath alcohol technicians throughout the state who specialize in on site testing. All collectors and BATS have been certified by Christine Steele. Please see Appendix C. for certificates of RN Expertise, Inc. and insurance and licenses. Three Quest patient care centers are located very close to the area of 1500 Biscayne Boulevard, Miami, Florida, 33232. The hours of operation are 7:00 am to 4:30 pm. RN Expertise has arranged three third party sites in the North end of Miami-Dade county and one site in the south end of Miami-Dade County that are available to perform reasonable suspicion and post- accident testing. The hours of operation are from 8:00 am to 12:00 midnight. These addresses are: Workers Compensation Medical Center 17601 N.W. 2nd Avenue Ste S Miami, Florida 33169 Workers Compensation Medical Center 6504 N.W. 77th Court Miami, Florida 33166 Homestead Hospital 160 NW 13th Street Homestead, FL 33030 If these sites are not convenient we can arrange additional sites or provide these tests on an on-site basis. RN offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered sites in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And RN offered at least two sites in the north end of Miami-Dade County and one in the south, all three of which were open from 8:00 a.m. until midnight, thereby satisfying both the geographic and hours of operation requirements of subsection V.N. The Evaluation Committee(s), Mr. Bevan’s Comparison Chart, and the Evaluations A. The Original Committee To evaluate the proposals, a five-person committee was appointed in accordance with the RFP. Its members were Nelson E. Diaz, Deputy Superintendent, Personnel Management and Services; Gwendolyn Jennings Kidney, Assistant Superintendent, Employee Support Programs; Jose Montes de Oca, Assistant Chief Auditor, Management and Compliance Audits; Michael Fox, Risk Analyst, Risk and Benefits Management; and Patricia Freeman, Director, Business Development and Assistance. This committee arranged to meet for the first time on April 11, 2001. Notice of the meeting was not published in advance; the committee would convene in private. The following staff persons were asked to be present at the April 11 meeting to provide technical expertise, if needed: Vera Hirsh, Administrative Director, Personnel; William Bevan, Executive Director, Personnel Operations and Records; Frederic F. Conde, Executive Director, Office of Professional Standards; and Barbara Jones, Director, Procurement. B. Mr. Bevan’s Comparison Chart Before the April 11, 2001, meeting, Ms. Hirsh asked Mr. Bevan, as a technical advisor to the committee, to prepare a comparison of the two proposals. At the time, Mr. Bevan was most knowledgeable about the District’s procedures for drug testing, because he had been directly involved in the general drug testing program. Also, through his work experiences, Mr. Bevan had acquired personal knowledge concerning Global. Indeed, Global had listed Mr. Bevan as a reference in its proposal. Mr. Bevan prepared a comparison chart that was distributed to all the members of the committee. The following table contains the substance of Mr. Bevan's comparison chart:3 Item No. GLOBAL RN EXPERTISE 1 TURNAROUND TIME IS NEXT BUSINESS DAY 5 DAYS ON POSITIVE 24 HOURS FOR NEGATIVES 48 HOURS FOR POSITIVES 2 LOCATION IS FORT LAUDERDALE ALTAMONTE SPRINGS 3 PLAN TO DELINEATE OTETA FROM GENERAL GOOD PLAN PLUS ICON BASED DRUG TEST FORM VERY WEAK PLAN VERY WEAK ANALYSIS 4 COST $30.00 DOT BLIND SAMPLES ARE INCLUDED COST $27.80 NO MENTION OF BLIND SAMPLES 5 POLICE $25.00 ALL ALCOHOL TESTS BOTH BREATH & BLOOD ARE $25.00 $26.00 8 PANEL TEST BREATH ALCOHOL $25.00 BLOOD ALCOHOL $30.00 6 COLLECTION SITES 10 TOTAL SITES 14 TOTAL SITES LESS 4 IN BROWARD, 6 FOR BLOOD DRAW ONLY = 4 NET SITES 7 MOBILE COLLECTION DONE BY MOBILE VAN "WILL PROVIDE ON-SITE COLLECTION" 8 EXPERIENCE 4 YEARS WITH M-DCPS NO SUCCESSFUL LEGITATION [sic] AGAINST M-DCPS US SUGAR ? 9 LABORATORY LAB CORP OF AMERICA LATE IN REPORTING RESULTS ONE TIME IN FOUR YEARS QUEST LABORATORIES QUESTIONABLE 10 ADULTERANT TESTING IS PERFORMED BY LAB CORP AT A STANDARD COURSE OF PROTOCOL WITH NO CHARGE FOR THIS PROCEDURE TESTSURE IS BROKEN OUT AS A SEPARATE ENTITY Because of his personal knowledge of and experience with the drug screening program, Mr. Bevan's opinions carried great weight with the committee members. As will become clear, moreover, Mr. Bevan operated as a de facto evaluator. Thus, for good reasons, his comparison chart drew RN’s close and critical attention. It will be examined in detail below. Item No. 1. This item is helpful as a contrast to the others, for here Mr. Bevan did exactly what a technical advisor should do: provide a concise, accurate, and objective summary of details contained in the proposals without making a subjective judgment as to which proposal is superior. Item No. 2. As Mr. Bevan admitted at hearing, the RFP did not include, as an evaluation criterion, the location of a proposer's base of operations. Testifying, he explained that, "in [his] mind, [a proposer's location] was not something that was in the RFP, but it was important to me." Hearing Transcript (“T.”) 59. Of course, it was not Mr. Bevan's place to make subjective judgments about what was valuable in the proposals—— that was for the evaluators. Further, even the evaluators could not properly take into account undisclosed evaluation criteria. Thus, this comparison was irrelevant and consideration thereof was contrary to the RFP and contrary to competition. Item No. 3. This comparison pertained to the evaluation criterion specified in section VIII, subsection F, which provided: Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collecting/testing. Mr. Bevan dubbed RN's proposal "very weak" and Global's "good" primarily because Global's prototype OTETA form had a transparent drawing of a school bus superimposed over the writing, and its sample form for use by school police officers had a simple, freehand outline of an officer drawn on its face, whereas RN's forms did not have such "icons." Mr. Bevan believed that the pictures of the school bus and police officer would prevent the less intelligent applicants and employees from using the wrong form.4 Although reasonable people might disagree with Mr. Bevan's analysis of the respective merits of the proposals on this criterion, his conclusion was neither arbitrary nor capricious. The problem, however, is that Mr. Bevan was not a member of the committee, and his qualitative judgment went well beyond an even-handed explanation of a technical term or process, or an objective summary of the proposals' details. In other words, as this item clearly shows, Mr. Bevan assumed the role of evaluator. Item No. 4. Mr. Bevan's comparison of "blind sample testing" is interesting because the purpose of focusing on this discrete point, among all others relating to the proposers' price quotes for OTETA testing, seems to have been to blunt the advantage that RN otherwise would enjoy for having offered the lower price. (The comparison effectively says, RN's OTETA test is cheaper, yes, but Global adds value by performing blind samples, whereas RN may not provide this service.) Mr. Bevan could have written, however, with equal accuracy, that RN's price for OTETA testing "includes an adulterant panel" while Global's proposal makes "no mention of adulterant panels," which would have made RN's price quote appear even more attractive as against Global's. RN, however, did not complain about this aspect of Mr. Bevan's analysis; consequently, the undersigned has paid little attention to, and based no ultimate factual determinations or legal conclusions on, this item. Item No. 5. According to the Guide, at page 21, school police officers are required to be tested for eight drugs or classes of drugs. This is called an "8 panel" test or screen. Other employees, in contrast, need only be tested for five drugs or drug classes, using a "5 panel" screen. In his comparison, Mr. Bevan balanced Global's supposed price of $25.00 for police tests against RN's quote of $26.00 for an 8 panel drug screen. Yet, in its Fee Schedule, Global did not specify a separate charge for police tests, 8 panel tests, or 5 panel tests.5 Rather, Global quoted a price of $25.00 for "general employee drug testing." Based on his previous experience with Global, however, Mr. Bevan assumed that Global's charge for police tests would be $25.00, the same as the cost of testing other non-OTETA employees. Mr. Bevan's assumption was dubious at best, even assuming that Global previously had been charging $25.00 for police tests.6 At worst, if Global's historical pricing were ignored (as it should have been, being a fact extrinsic to Global's proposal), Mr. Bevan's assumption was bereft of factual or logical support; it was simply arbitrary. At a minimum, though, Mr. Bevan should have stated, on the comparison chart he provided to the committee, that he was making an assumption in Global’s favor. Without such a qualification, the chart——which purported to compare "apples to apples"——unfairly depicted RN's as unequivocally the costlier proposal on this item, for RN was shown truthfully to have quoted $26.00 for an 8 panel test. Moreover, significantly, Mr. Bevan omitted the fact that RN also had offered a price of $25.00 for an 8 panel screen without an adulterant panel. Thus, not only had Mr. Bevan potentially compared "apples to oranges," he had compounded the problem by making RN's quote for police testing appear higher than it necessarily would need to be. Making the matter worse still, Mr. Bevan represented that Global's price for blood alcohol testing was $25.00 versus $30.00 for the same procedure with RN. Global, however, had not offered to perform blood alcohol tests for $25.00 apiece; it had not quoted any price for such testing. Mr. Bevan assumed that Global's price would be $25.00 based on his past experience with the company. The validity of Mr. Bevan's assumption, again, is questionable;7 at the very least, his assumption should have been disclosed to the committee on the comparison chart. As drafted, without disclosure of Mr. Bevan's Global-friendly assumption, the comparison chart was grossly inequitable to RN, creating the possibly false impression that RN's price for blood alcohol testing was 20% higher than Global's. Finally, in comparing the cost proposals, Mr. Bevan failed to note that Global had quoted a hefty $75.00 surcharge for all "after hour services," meaning tests performed on weekdays between 5:00 p.m. and 8:30 a.m., and anytime on Saturday or Sunday. RN, in contrast, did not similarly propose a 400% price increase for after-hours work, and thus would have been favored by the comparison Mr. Bevan chose not to make. Item No. 6. The issue of collection sites would become crucial. Mr. Bevan's ultimate opinion——that RN had proposed "4 net sites" as against the "10 total sites" offered by Global——was highly subjective and clearly erroneous. To begin, RN's proposal in fact described a total of 17 collection sites——not 14 as Mr. Bevan incorrectly represented. At pages 12 and 13 of its proposal, RN responded sequentially to RFP section V, subsections K (collection sites desired in four quadrants of Miami-Dade County), L (mobile collection required at some Regional Transportation Centers), M (preference for a site near 1500 Biscayne Boulevard), and N (requiring at least one site each in the north and south ends of Miami-Dade County). In response to subsection K, RN proposed to use 14 Quest patient care centers, the locations of which were further described in maps attached to RN's proposal as Appendix B. Three of the 14 Quest centers were represented to meet the preference expressed in subsection M. And RN offered three additional "third party sites" (plainly meaning, in context, sites that were not operated by Quest) to satisfy subsection N. There was and is nothing confusing about RN's response regarding collection sites. No reasonable, fair-minded person, upon reading pages 12 and 13 of RN's proposal, could reasonably conclude that RN was offering a total of only 14 collection sites. Next, four of the Quest sites proposed by RN are located in Broward County. Mr. Bevan decided that these Broward sites should be ignored. The RFP, however, did not prohibit a proposer from offering sites outside Miami-Dade County, and, significantly, RN's proposal satisfied the RFP's technical requirements concerning collection site locations without the Broward sites. Thus, an evaluator (as opposed to Mr. Bevan, who was not one) might have regarded RN's Broward sites either an added value that made RN's proposal more attractive or an unwanted option that neither added to, nor detracted from, RN's proposal. Either way, however, this qualitative decision was not properly Mr. Bevan's to make as a “technical advisor.” Mr. Bevan then subtracted six sites from RN's total because the proposal stated that the sites were available for blood draws only. (In fact, RN's proposal indicated that nine of RN's 17 total sites collected blood samples only; three of the nine are in Broward County and six in Miami-Dade.) Mr. Bevan's decision that "blood only" sites should not be counted was plainly contrary to the RFP, under which blood alcohol testing clearly was a required service. While the evidence showed that the District considers urine collection sites to be much more valuable than “blood only” collection sites, which it views as practically worthless, the RFP nevertheless did not disclose this preference or the relative weight of urine sites versus “blood only” sites. Simply put, the RFP did not allow the evaluators to ignore “blood only” collection sites. At bottom, a fair and balanced comparison (unlike Mr. Bevan's) would have shown that RN had proposed 17 total sites (four in Broward, 13 in Miami-Dade), of which nine (three in Broward, six in Miami-Dade) were "blood only" sites, leaving eight sites (one in Broward, seven in Miami-Dade) that were available for the collection of both urine and blood. An "apples to apples" comparison of Miami-Dade sites available for blood and urine testing would have been Global, ten versus RN, seven. Each evaluator, however, in weighing the relative merits of the two proposals, should have considered RN's ten additional sites——there was no warrant in the RFP for excluding them from the mix à la Mr. Bevan's analysis——and made an independent determination of the value added by those sites. Item No. 7. On this point, Mr. Bevan was unfair to RN——but only a bit. His comparison intentionally drew a distinction between Global's "mobile collection" (the term used in section V.L. of the RFP) and RN's "on-site collection," subtly implying that RN’s proposal might not be responsive, or as responsive as Global’s, to the RFP’s technical guidelines. In fact, however, in its proposal at pages II-2, V-1, V-2, and VIII-1, Global expressly had described the function of its mobile unit as being to provide "on-site" collections; even Global, in other words, considered mobile collection and on-site collection to be fungible concepts. Mr. Bevan's comparison chart thus somewhat unfairly gave Global a gentle semantic boost while concomitantly giving RN a little linguistic gig.8 Standing alone, this comparison would not be noteworthy. Viewed in the light of other, unfair contrasts, however, Mr. Bevan's mobile collection/on-site collection dichotomy takes on a slight hue of partiality.9 Item No. 8. Here, Mr. Bevan made a comparison that was highly unfavorable to RN. One the one side, he portrayed Global attractively as the incumbent vendor that, during a four- year tenure, has not exposed the District to an adverse litigation outcome, and which also provides services to U.S. Sugar (an agricultural concern in South Florida). On RN's side there was only a question mark——nothing more. The meaning was obvious: Global has good credentials, but RN's experience and litigation track record are questionable. This was terribly unfair. RN's proposal included two pages of references listing a number of current clients. Mr. Bevan's explanation at hearing for failing to acknowledge any of RN's references on his comparison chart was that RN's references "were much longer" and would not fit on the page, and that he had "put down what [he] could in the amount of time [he] had." 89. This explanation utterly fails to account for Mr. Bevan's misleading and prejudicial use of a question mark to describe RN's documented experience; it is not credible and is rejected.10 Regarding exposure to lawsuits, Mr. Bevan's comparison was gratuitous. The RFP did not ask for information concerning lawsuits; and the lack of adverse litigation outcomes, while perhaps interesting and even relevant, was not an evaluation criterion. Further, Mr. Bevan was aware of Global's litigation track record not because of information contained in Global's proposal (for such data was not included therein) but because he previously had monitored litigation against the District arising from OTETA testing. Despite relying on facts extrinsic to Global's proposal for this comparison, Mr. Bevan made no attempt to determine whether RN had exposed a client to an adverse litigation outcome and hence had no idea whether RN had or had not done so. Yet, despite the absence of any basis in logic or fact for such a conclusion, the question mark in RN's column (adjacent to the favorable comment about Global) strongly implied that RN either had omitted material information about litigation or disclosed something disturbing or questionable. The unavoidable net effect of this prejudicial and unfair comparison was to put an exclamation point on the fact that Global had served satisfactorily as the incumbent vendor (and thus was a safe choice)——while portraying RN as a pig in a poke (and hence a gamble). Item No. 9. Mr. Bevan shone a flattering light on Laboratory Corporation of America ("LCA," the laboratory used by Global)——only one glitch in four years!——while labeling Quest Diagnostics ("Quest," used by RN) "questionable." This was problematic for several reasons. First, the RFP did not specify a preference for any particular laboratory. Second, Mr. Bevan's judgment was not based on the respective proposals but on his personal experiences. He had been pleased with LCA's services and preferred that the District continue to do business with that laboratory. But, as the comparison chart pointedly neglected to mention, Mr. Bevan's negative opinion of Quest was based on just one incident in which Quest had been slow in reporting the results of a retest that had been requested by an individual who had initially tested positive at LCA and requested that Quest perform the confirmatory test.11 Third, the judgment expressed on the relative merits of the proposers' laboratories was plainly qualitative; in other words, Mr. Bevan was evaluating the proposals, which was not properly his role, for he was not a de jure member of the committee. Item No. 10. Mr. Bevan's representation to the committee that LCA performed adulterant testing at no cost to the District was not based on Global's proposal, which neither mentioned adulterant testing nor quoted a price for such service, but on his experience with Global. (Incidentally, neither Mr. Bevan's testimony, nor any other evidence, persuasively established that Global or LCA had, in fact, been performing adulterant testing. Rather, the District’s employees assumed that such was the case——as it may, or may not, have been.) Aside from the impropriety of relying on facts extrinsic to Global's proposal, Mr. Bevan's contrast with RN's proposal ("TestSure is broken out as a separate entity") was both incorrect and incomplete, producing a false, "apples to oranges" comparison. First, as four pages of descriptive information included in RN's proposal made clear, TestSure is Quest's trademark for its adulterant testing protocol, which Quest considers a "breakthrough in technology for the industry." Contrary to Mr. Bevan's statement, TestSure is not a "separate entity." Thus, the apparently-intended implication that RN's price was higher because it was proposing to use a “separate entity” (in addition to Quest) for adulterant testing was untrue. Second, the information provided by RN concerning TestSure, rather than being a negative strike against RN's proposal, as Mr. Bevan's comparison suggested, was (or should have been) helpful in evaluating RN's proposal, a plus. While the committee certainly could have chosen to discount or ignore Quest's glowing review of its own product as puffery, the fact was that while Global's proposal said nothing about adulterant testing, RN had submitted some information on the subject. Finally, Mr. Bevan did not specify that his remark about Global's supposed offer to provide adulterant testing at "no charge" was merely an assumption that, for all that appears in Global's proposal, may or may not be true. This omission was especially unfair to RN because RN had stated explicitly in its cost proposal that an additional dollar would be charged for an adulterant panel——and that the District could save the dollar by electing not to have the panel performed on general tests. An impartial summary would have acknowledged RN's prices for general tests, both with and without an adulterant panel, and noted that Global's proposal was silent as to whether its quote of $25.00 for general testing included an adulterant panel. To state unqualifiedly that Global would provide adulterant testing for free, when its proposal said nothing of the sort, was patently inequitable. The First Evaluation and Recommendation After meeting for two hours on April 11, and having considered Mr. Bevan’s comparison chart, the committee voted to recommend that the contract be awarded to Global. In the minutes of the meeting, it was reported that [b]oth Proposals were evaluated according to the criteria outlined in the proposal. A comparison was made of services provided, locations for testing, cost, and other requirements. The committee recommended that Global MRO be awarded the contract. In addition to providing a reasonable fee schedule, the locations for drug testing, and the prior outstanding service provided by Global MRO, supports the committee’s decision. RN timely protested the intended award, the Board referred the matter to DOAH, and a final hearing was scheduled for July 30, 2001. Before the final hearing, however, the Board determined that the April 11, 2001, meeting might have occurred in violation of the Sunshine Law. Accordingly, the final hearing was postponed to enable the committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law. The Second Evaluation and Recommendation The committee met for a second time on September 4, 2001, pursuant to a prior written notice of proceedings. The September 4 meeting was open to the public. Although each of the original members of the committee was asked to return, two of them——Mr. Diaz and Ms. Freeman——were unable to attend the second meeting. In their places appeared subordinates as “representatives,” Pat Parham for Mr. Diaz and Enrique Sacasa for Ms. Freeman. Four members of this committee had no direct involvement in or experience with the drug screening services that were the subject of the contract for which proposals had been solicited. Of the five, only Ms. Kidney was knowledgeable about the program areas and service requirements for which contractual services were being sought. Once again, staff persons were present, ostensibly to answer technical questions. Mr. Bevan and Mr. Conde returned. With them this time were Barbara M. Moss, District Director, Office of Professional Standards; Brenda Miles, Executive Director, Professional and Technical Staffing; and Linda Cantin, Supervisor, Division of Procurement Management. Mr. Bevan did not distribute his comparison chart at the committee’s public meeting and made only a couple of comments there in response to questions. After conferring, the committee found both proposals to be responsive and voted unanimously to recommend that Global be awarded the contract. In the minutes of the September 4, 2001, meeting, it was reported that [t]he committee agreed that both proposals were good, and clearly stated an understanding of the work to be performed. There were concerns expressed, however, regarding [RN’s proposal] in reference to the location and convenience of collection sites. . . . . [Global] was selected because of the larger number of collection sites for urine that are available and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and its experience. RN’s Protest By letter to the Board’s counsel dated September 6, 2001, RN amended its pending protest of the first recommendation to challenge the second proposed award with a newly-revised statement of grounds.12 As bases for relief, RN asserted that Global’s proposal was materially non-responsive for failure to comply with several of the RFP’s technical requirements; it also alleged that the committee’s evaluation had been flawed in several respects. Ultimate Factual Determinations Certain Ultimate findings of fact have been rendered below under the heading “Conclusions of Law.” This has been done for organizational convenience and for clarity of analysis. Accordingly, the findings announced in paragraphs 114, 120, 130, 134, 156, 159, 161-64, 167, and 169, infra, are hereby incorporated as Findings of Fact, as if fully set forth in the instant section of this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order rescinding the proposed award to Global. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. 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 4th day of February, 2002.
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 for determination is whether the nursing license of Alice M. Thomas Lofton should be disciplined for violations of Section 464.018(1)(f) and (h), F.S., by reporting to duty under the influence of alcohol.
Findings Of Fact Alice M. Thomas Lofton is now, and was at all times relevant in this proceeding, licensed as a registered nurse in Florida under license number 59769-2. In September 1985, Ms. Lofton was employed as a staff nurse at Tampa General Hospital. On September 15, 1985, she reported for duty smelling of alcohol and unsteady on her feet. Her speech was slow, deliberate and slurred and she was observed to have difficulty in taking a patient's blood pressure. She appeared to be intoxicated. When confronted by her supervisor, Ms. Lofton voluntarily submitted to a blood and urine test. The blood-alcohol test was returned with the result of .14 percent (.141 gm/dl). Ms. Lofton was sent home. She was subsequently given an opportunity to keep her job if she would participate in and follow the recommendations of the employee assistance program at Tampa General Hospital. She agreed to participate but did not comply with the counselor's recommendations, so she was terminated. It is both unprofessional and unsafe for a nurse to practice while under the influence of alcohol. Alice Lofton was a longtime employee of Tampa General Hospital. She had been an assistant head nurse for four and a half years. She admitted that at one time she thought she had a drinking problem and was once admitted to the emergency room under the influence of alcohol. No evidence was presented of other disciplinary actions regarding Ms. Lofton's license or regarding her employment as a registered nurse. No evidence was presented that a patient was harmed or that Ms. Lofton, except for her intoxicated appearance at work, ever failed to conform to minimal standards of acceptable prevailing nursing practice. Ms. Lofton claimed that the incident was the result of a conspiracy against her because she had asked for a transfer when her supervisors really needed her and wanted her to stay. The claim was inherently contradictory and was unsubstantiated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a final order be entered finding Alice M. Thomas Lofton guilty of a violation of Subsections 464.018(1)(f) and (h), F.S., and suspending her license for a period of 30 days and thereafter until she can demonstrate her ability to practice nursing safely. The demonstration should include a physical or psychological examination to determine whether she has an alcoholism problem requiring treatment, and, if so, continued probation is recommended to insure that such treatment is obtained. DONE and RECOMMENDED this 17th day of December 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December 1986. COPIES FURNISHED: William M. Furlow, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Alice T. Lofton 2703 Spruce Street Tampa, Florida 38687 Judie Ritter Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issue to be determined is whether Respondent, Emily Randall, is guilty of violating section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed for the violations proven.
Findings Of Fact Respondent holds Florida Educator’s Certificate 701488, covering the area of school psychologist, which is valid through June 30, 2018. The Brevard County School Board (BCSB) is the entity charged with governing and administering the school district and is responsible for the supervision of the employees of the school district. The Commissioner of Education, as Petitioner in this case, is the state agency charged with the licensing and regulation of educators in the State of Florida. At all times relevant to these proceedings, Respondent was employed as an itinerant school psychologist for BCSB. Employment in an itinerant position means that Respondent was not assigned to a particular school, but rather worked at multiple worksites within the District. Respondent had an office at the north area office complex and also would report to three schools, including Coquina Elementary School (Coquina Elementary) in Titusville. BCSB employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with those involved. Dr. Maggie Balado became the coordinator of psychological services in August of 2013. As the coordinator, she became Respondent’s supervisor. At the beginning of both the 2013-2014 and the 2014-2015 school years, Dr. Balado provided to the school psychologists, including Respondent, her personal contact information and that of her assistant, Ms. Beyer, so that absences from work could be reported. On October 30, 2014, Respondent was assigned to be at Coquina Elementary in Titusville. Coquina Elementary is located approximately 40 miles from Respondent’s home, and Respondent was scheduled to be there to watch a meeting with Enas Messick, Coquina Elementary’s guidance counselor. After the meeting with Ms. Messick, Respondent had planned to evaluate a student. Due to technical difficulties unknown to Respondent, the meeting with Ms. Messick was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. She also did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. On Thursday, October 30, 2014, Respondent drove to Coquina Elementary in Titusville, Florida, at approximately 7:30 a.m. After sitting in the parking lot at Coquina Elementary for approximately an hour doing paperwork, Respondent drove home. Respondent had adequate leave available to her to be absent from work that day. Failure to report her absence from work was a violation of a reasonable directive. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent, contacted Dr. Balado regarding an evaluation for a child at Coquina Elementary. During the conversation, Dr. Rhinehardt mentioned that Respondent was not at Coquina Elementary that day. Dr. Balado then telephoned Respondent to ask where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary when she was not. Respondent reported to Dr. Balado that she was performing her duties at Coquina Elementary that day, when in fact she was at home. Dr. Balado was suspicious of this statement and directed that Respondent go into the school office and call her back on the landline at the school. Although Respondent stated that she would do so, she did not. She told Dr. Balado that she went into the school’s office as directed, but did not feel comfortable using the school’s telephone to call Dr. Balado back. Respondent did not go into the school’s office. Respondent lied to Dr. Balado when she told Dr. Balado she was at Coquina Elementary when she was not. Dr. Balado then contacted Dr. Elizabeth Thedy, the assistant superintendent for student services, and related to her the events of the day. Dr. Thedy placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, Respondent, Dr. Thedy, and Jim Hickey, director of Human Resources and Labor Relations, attended a meeting to discuss the events of October 30, 2014. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30 and that she could prove it. She indicated that Ms. Messick would verify that she had been at Coquina Elementary. Ms. Messick did not see Respondent at Coquina Elementary on October 30, 2014, but did corroborate that Respondent had telephoned her to advise that she would not be at the school. Respondent later stated that she sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014. Mr. Hickey asked Respondent to provide a written statement setting forth the events of October 30, 2014. At that point, Respondent admitted that she had not stayed at Coquina Elementary all day as she previously stated. Following Respondent’s admission and Mr. Hickey’s further consideration of her behavior, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. Dr. Balado, Respondent’s supervisor, recommended termination for Respondent, because she felt she could no longer trust Respondent to be truthful with respect to either her whereabouts or her work product. Because of her status as an itinerant employee, Dr. Balado needed to be able to trust that she was where she was supposed to be and performing her assigned tasks, which are often time-sensitive. Dr. Balado no longer trusted Respondent. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the school district. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding her performance and behavior. In anticipation of the November 21, 2014, meeting, BCSB staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze on her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as BCSB staff hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of these terms. Respondent, on the other hand, believed that BCSB staff would be informing her that she was being terminated. There was no documentation provided to Respondent that would have indicated to her that termination was the only solution. Nor was there anything provided to Respondent that would have alerted her to the solution staff planned to propose. On the morning of November 21, 2014, Respondent drank two to three glasses of wine before leaving her home to attend the meeting. She then went to the meeting with Mr. Hickey, Dr. Thedy, and Dr. Balado. She was accompanied by her husband and her attorney. Respondent was very emotional during the meeting. She cried and at times appeared to be angry. She asked to be excused within minutes of the beginning of the meeting, and then returned. Meeting participants also described her as being disheveled, having flushed skin and red and watery eyes, and shaking hands. Most importantly, Mr. Hickey, Dr. Thedy, and Dr. Balado all believed that Respondent was emitting the strong odor of alcohol, giving them reasonable cause to believe that she was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. Respondent submitted to a breathalyzer examination conducted by Kathy Krell, the Drug and Alcohol Program Administrator for the school district, after being directed to do so. There was no evidence presented to indicate that she objected to taking the test or to the manner in which it was administered.1/ Her attorney was present at the time she was asked to submit to the test. Ms. Krell, who is now retired, had conducted breathalyzer tests for the school district for over 20 years. She was certified by Intoxicators, the company that produces the breathalyzer machine used by the school district, to administer the breathalyzer test. The test was performed in accordance with her standard procedure and was completed in the regular course of business for BCSB, and included the statement signed by Respondent that “I certify that I have submitted to the alcohol test, the results of which are accurately recorded on this form. I understand that I must not drive, perform safety-sensitive duties, or operate heavy equipment because the results are positive.” Respondent also admitted in her letter to the Office of Professional Practice (Petitioner’s Exhibit 32) that “the results confirmed I was under the influence.” The results of the breathalyzer test indicate that, as of approximately 2:45 p.m. on November 21, 2014, Respondent’s alcohol level as measured by the breathalyzer test was .104. Based upon Respondent’s appearance, behavior, and blood test results from the breathalyzer test administered immediately after the meeting, Respondent was under the influence of alcohol at the time she met with Dr. Balado, Dr. Thedy, and Mr. Hickey. Upon receiving the results of the breathalyzer test, BCSB withdrew the disciplinary offer it had presented to Respondent. BCSB staff testified that when someone is on administrative leave, they should be prepared to report to work at any time, and be prepared to adhere to the behavioral standards required in the workplace: in other words, to comply with the zero-tolerance policy observed by the school district in terms of drug and alcohol use while on duty. The letter placing Ms. Randall on administrative leave did not state and Dr. Thedy, who wrote the letter, acknowledged that Respondent was not advised to be prepared to work while on administrative leave. The letter simply instructed Respondent “not to be on school board property while on administrative leave.” While the notice provided to Respondent placing her on administrative leave did not expressly state that she should not drink before attending her pre-termination meeting, it is inconceivable that she would think that to do so was appropriate. Moreover, BCSB’s Drug-Free Workplace Technical Guide states in pertinent part: Alcohol, prescription, and over-the-counter drugs are generally safe and acceptable when used according to proper instruction. Abuse of legal drugs over time or used in combination with another substance can result in chemical dependency or poly-drug addiction. Employees will be free of alcoholic or drug intoxication when on duty or on Board property. Employees are prohibited from the manufacture or use of alcoholic beverages while on Board property or while on duty with the Board. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to the school district’s employment assistance program (EAP). The EAP is available to employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges his or her issue, participates, and agrees to seek help for his or her problem, the employer typically works to return the employee to the work environment. That did not happen here. On November 22, 2014, the day after the meeting to discuss her employment, Respondent was arrested in Seminole County, Florida, for driving under the influence, with a blood alcohol level of .15 or higher, in violation of section 316.193, Florida Statutes. On December 16, 2014, Respondent entered a plea of nolo contendere in State of Florida v. Emily Martin Randall, Case No. 592014MM010473AXXXXX (18th Jud. Cir., in and for Seminole Cnty.) to the amended charge of driving under the influence with a blood alcohol level of below .15, a misdemeanor. The trial court accepted the plea, found a factual basis for the plea, and adjudicated her guilty of the amended charge. Dr. Binggeli recommended that BCSB terminate Respondent’s employment on December 9, 2014. At hearing, Respondent testified that on the evening of October 29, 2014, her adult son was arrested. Respondent believed that the arrest was indicative of a more serious, long- standing issue that her son battled. The news of her son’s arrest devastated her, and she did not sleep because of her emotional turmoil. She has, since the events described above, participated in the EAP and sought independent counseling to deal with the emotional issues present in her personal life. The news that Respondent received about her son was troubling, and it is understandable that she would be upset by this development. It does not, however, justify her failure to simply report to her supervisor that she would not be attending work on October 30, 2014. It was undisputed that she had adequate leave to cover the absence. Under no circumstances does her emotional state justify her repeated fabrications regarding her whereabouts when given numerous opportunities to tell the truth. Respondent was terminated by BCSB on or about December 16, 2014. She is not currently working in the education field, but is instead performing administrative tasks in her son’s landscaping business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent’s certificate for a period of 18 months; that it require Respondent to participate in the Network Recovery Program; that after the completion of her suspension, she be placed on probation for two employment years, subject to terms and conditions imposed by the Education Practices Commission; and impose an administrative fine of $1,000. DONE AND ENTERED this 28th day of March, 2017, 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 28th day of March, 2017.
The Issue Whether Florida Administrative Code Rule 11D-8.002(1) constitutes 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 the operation, inspection, and registration of breath test instruments 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., Fla. Stat. The cited statute enumerates FDLE's powers under the Alcohol Testing Program as follows, in relevant part: 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. * * * l. Promulgate rules for the administration and implementation of this section, including definitions of terms. * * * p. Have the authority to approve repair facilities for the approved breath test instruments, including the authority to set criteria for approval . . . . Petitioners are defendants in pending criminal prosecutions in Marion County. Each has been charged with Driving Under the Influence (“DUI”), in violation of section 316.193. Pursuant to the implied consent law,2/ each of the Petitioners took a breath alcohol test that utilized the Intoxilyzer 8000 breath alcohol testing instrument manufactured by CMI, Inc. FDLE has not contested the standing of Petitioners to initiate this proceeding. In those criminal prosecutions, the state intends to use the results of the Intoxilyzer 8000 tests as evidence that Petitioners had unlawful breath alcohol levels at the time of their respective charged offenses. Florida Administrative Code Chapter 11D-8 sets forth rules governing the implied consent program. These include rules regarding the approval and disapproval of breath test methods and instruments, and regulation of the operation, inspection, and registration of breath test instruments for use pursuant to the DUI statute. Chapter 11D-8 also sets forth rules related to the regulation of individuals who operate, inspect, and instruct on breath test instruments. Rule 11D-8.002 sets forth the operational definitions for the rule chapter. Section (1) of rule 11D-8.002 provides as follows: Acceptable Range-–the results of alcohol reference solutions and dry gas standard analyses which fall within the following ranges at each alcohol vapor concentration: 0.05 g/210L range is 0.045 to 0.055 g/210L; 0.08 g/210L range is 0.075 to 0.085 g/210L; 0.20 g/210L range is 0.190 to 0.210 g/210L; or the Alcohol Reference Solution gas chromatographic results which fall within the following ranges: 0.0605 g/100mL range is 0.0586 to 0.0623 g/100mL; 0.0968 g/100 mL range is 0.0938 to 0.0997 g/100mL; 0.2420 g/100mL range is 0.2347 to 0.2492 g/100mL. Rule 11D-8.002(9) defines “alcohol reference solution” as “a standard used to verify the calibration of a breath test instrument consisting of a mixture of alcohol and distilled or deionized water that will produce a known alcohol vapor concentration at a specific temperature.” Rule 11D-8.002(20) defines “dry gas standard” as “a National Institute of Standards and Technology or international equivalent traceable standard consisting of a mixture of alcohol and gas which produces a known alcohol vapor concentration used to verify the accuracy of a breath test instrument.” Both alcohol reference solutions and a dry gas standard are used in conducting annual FDLE inspections of breath test instruments, as well as by local law enforcement agencies in conducting monthly inspections of their instruments. The three alcohol vapor concentrations set forth in the rule are the alcohol reference solutions that FDLE uses during inspections to verify the calibration of the breath test instruments. A reference solution of a known value of alcohol vapor concentration is placed in the machine. If the machine fails to perform within the acceptable range for the reference solution, it is removed from service for corrective action. The acceptable range of error for an instrument is an average error of no more than plus or minus .005g/210L, or 5%, whichever is greater. For ease of reference, this range will henceforth be referenced as the “5% standard.” Prior to 1992, the former Department of Health and Rehabilitative Services (“HRS”) was responsible for breath and blood testing compliance under the implied consent law. HRS’ rules, then Florida Administrative Code Chapter 10D-42, did not define an acceptable range of error for alcohol reference solutions and dry gas standard analyses. Sections 20 through 22 of Chapter 92-58, Laws of Florida, transferred the Alcohol Testing Program to FDLE. FDLE first adopted chapter 11D-8 on October 31, 1993. The original version of rule 11D-8.003(7) included the 5% standard as the “accuracy standard” for test instruments. The 5% standard’s position in chapter 11D-8 has shifted since 1993, and the terminology has been changed from “accuracy standard” to “acceptable range,” but the numerical value of the accepted range for accuracy has not changed since 1993. Rule 8D-11.003 provides that all breath test instruments must be evaluated in accordance with the procedures set forth in FDLE/ATP Form 343/ prior to being approved for use in Florida. The first paragraph of Form 34 states, “[o]nly breath test instruments listed on the US Department of Transportation Conforming Products List of Evidential Breath Measurement Devices will be evaluated.” The Conforming Products List is a catalog of all evidentiary breath testing instruments approved by the U.S. Department of Transportation as conforming to the model specifications of breath testing devices published in the Federal Register. See National Highway Traffic Safety Administration, Conforming Products List of Evidential Breath Alcohol Measurement Devices, 77 Fed. Reg. 35747 (June 14, 2012); Model Specifications for Devices to Measure Breath Alcohol, 58 Fed. Reg. 48705 (Sept. 17, 1993). The Intoxilyzer 8000 was added to the Conforming Products List in 2002. See 67 Fed. Reg. 62091 (Oct. 3, 2002). The version of rule 11D-8.003(2) approving the Intoxilyzer 8000 for use in Florida was proposed in July 2002 and became effective on November 5, 2002. See Vol. 28, No. 30, Fla. Admin. W., p. 3238, 3239 (July 26, 2002); and Vol. 28, No. 44, Fla. Admin. W., p. 4811 (Nov. 1, 2002). At that time, a predecessor product, the Intoxilyzer 5000, was kept on the list of instruments approved for use in Florida. The Intoxilyzer 5000 was deleted from the approved list by an amendment to rule 11D-8.003(2) that took effect on July 29, 2015. The Intoxilyzer 8000 is now the only breath test instrument approved by FDLE. Despite its continued presence on the list of FDLE- approved instruments, the Intoxilyzer 5000 was in fact eliminated from evidentiary use in Florida on March 27, 2006. On the same date, the Intoxilyzer 8000 was placed into evidentiary use as the sole breath test instrument used in Florida. Laura Barfield, who served as program manager of the Alcohol Testing Program from 2001 through the spring of 2013, and Matthew Malhiot, who worked in the Alcohol Testing Program for eight years in various capacities related to inspection and maintenance of breath test instruments, testified at length about the transition from the Intoxilyzer 5000 to the Intoxilyzer 8000, and the similarities and differences between the machines. Both machines employ infrared spectroscopy to determine the amount of alcohol in a sample. Ms. Barfield explained that molecules absorb infrared light at specific wavelengths. The infrared spectrum of a sample is obtained by passing a beam of infrared light through the sample. The alcohol molecule will absorb specific wavelengths of infrared light in a unique and consistent way. Based on the amount of absorption and the amount of transmittance, meaning the amount of light that remains after absorption, a measurement is correlated to a response from the calibration of the instrument. The Intoxilyzer 5000 and the Intoxilyzer 8000 use different methods to measure infrared light. The Intoxilyzer 5000 had three filters mounted on a wheel that spun at approximately 2,100 revolutions per minute. The filters were each at a different wavelength: 3.39 µm, 3.48 µm, and 3.80 µm. It had a single detector that measured the light coming through each of the three filters. The Intoxilyzer 8000 has two detectors with a filter in front of each, one set at 3.4 µm, and one at 9.4 µm. The light source for the Intoxilyzer 5000 was a projector lamp similar to that found on a Power Point projector. The Intoxilyzer 8000 uses a pulsing infrared light source. The Intoxilyzer 5000’s light source was separate and had to be focused into the sample chamber, then refocused out of the sample chamber to the detector as the light passed through the wheel. This system caused some inevitable dispersion of the light. In the Intoxilyzer 8000, all components are internal to the instrument, leaving no room for dispersion of the light. Mr. Malhiot testified that the Intoxilyzer 5000 was developed in the 1970s and had computing power similar to an old Atari game system. The newer Intoxilyzer 8000 has much more computing power and data storage capability. The Intoxilyzer 8000 can be accessed remotely and is portable. A police officer can plug it into the cigarette lighter of his or her patrol car. Mr. Malhiot described the Intoxilyzer 5000 as similar to a 1960s car with a V-8 engine and the Intoxilyzer 8000 as a “fuel-injected Ferrari.” CMI, Inc.’s specifications sheet for the Intoxilyzer 8000 states that the instrument’s accuracy is “± 3% or ± 0.003G/210L (whichever is higher).” The Intoxilyzer 5000 was represented as accurate within plus or minus 5%. Local law enforcement agencies throughout the state own their breath test instruments. Rule 11D-8.004(1) provides that FDLE shall register and inspect each instrument for accuracy and reliability prior to its being placed into evidentiary use by an agency. Rule 11D-8.004(2) provides that registered breath test instruments shall be inspected by FDLE at least once each calendar year to ensure accuracy and reliability. Rule 11D-8.006 provides that evidentiary breath test instruments must be inspected by an agency inspector at least once each calendar month. The agency is also required to inspect the instrument when it is taken out of evidentiary use and prior to returning it to evidentiary use. Petitioners’ contention is that the definition of “acceptable range,” set forth in rule 11D-8.002(1), is outdated and obsolete. The numerical values in the definition of “acceptable range” have remained at the same 5% standard since rule 11D-8.002 was first adopted in 1993. The federal standard for placement on the Conforming Products List is also the 5% standard. Petitioners point to the fact that the specifications sheet for the Intoxilyzer 8000 states that the instrument’s accuracy is “± 3% or ± 0.003G/210L (whichever is higher).” Petitioners argue that it is arbitrary and capricious for FDLE’s rule to continue employing the 5% standard, which predates even the Intoxilyzer 5000, when the manufacturer’s specifications for the Intoxilyzer 8000 plainly state that it is accurate to within plus or minus 3%. Petitioners further argue that FDLE is in fact applying the 3% standard in some of its own inspection procedures and that it should be required to codify its own internal standard and practice by rule. Petitioners note that FDLE’s own Alcohol Testing Program Procedures Manual (the “Manual”) provides a set of quality control checks that require the Intoxilyzer 8000 to meet the 3% standard. Ms. Barfield testified that the Manual was written to standardize FDLE’s lab practices. The Manual has never been adopted by reference in a rule. Dr. Brett Kirkland, the current program manager of the Alcohol Testing Program, credibly testified that it would be impractical and unproductive for FDLE to attempt to adopt all of its laboratory’s standard operating procedures by rule. Current lab methodologies would be locked in place by rule and would not give the analyst discretion, should lab equipment or some other factor change. The agency would have to initiate rulemaking in order to make the smallest change in its methodologies. Dr. Kirkland opined that this would devolve into a hopeless endeavor because FDLE’s rulemaking could never keep up with the science that leads to modifications in laboratory operating procedures. The portion of the Manual in question is section 2.19, titled, “Instrument Quality Control Check Procedures,” which states by way of introduction: “For quality control purposes and prior to conducting a Department inspection, the following quality control checks will be conducted.” Among the listed quality control checks are “Stability Check Procedures.” These procedures require the analyst to perform three repetitions each of 0.05, 0.08, and 0.20g/210L alcohol reference solutions and three repetitions of a 0.08g/210L dry gas standard. The results of these analyses must be as follows: for the 0.05 standard, within a lower limit of 0.047 and an upper limit of 0.053; for the 0.08 standard, within a lower limit of 0.077 and an upper limit of 0.083; and for the 0.20 standard, within a lower limit of 0.194 and an upper limit of 0.206. These values are consistent with the plus or minus 3% set forth in the manufacturer’s specifications. If any of the stability check measurements fall outside of the prescribed range, the analyst is directed first to determine whether the cause is user error or external equipment. If the cause is not external equipment or user error, the analyst must perform either an optical bench calibration or have the instrument sent to an authorized repair facility of the owning agency’s choice. This repair is performed prior to the FDLE inspection, meaning that the agency is required to pay for repair of a machine that has failed to meet the Manual’s 3% standard, without regard to whether it meets the 5% standard imposed by the rule. From this, Petitioners argue that FDLE is in fact imposing the 3% requirement on local law enforcement agencies and should be required to formally adopt the 3% standard in rule 11D-8.002(1).4/ Dr. Kirkland described the quality control procedures as providing a “snapshot” of a given instrument’s function. FDLE uses the quality control check to determine whether to perform a calibration on an instrument. If the instrument is falling near the 3% margin, it is realigned to bring it closer to the target range. Dr. Kirkland described the quality control check as a good way to ensure that the instrument will meet the acceptable range criteria during the inspection. He noted that in any form of testing, it is good quality assurance to set slightly narrower constraints than what is allowable. Only after the instrument has passed the FDLE quality control checks, including the stability check, may it proceed to the more complex FDLE inspection, which is conducted according to the 5% standard set forth in rule 11D-8.002(1). The monthly agency inspections are also conducted using the 5% standard set forth in rule 11D-8.002(1). Dr. Kirkland testified as to the differences between the FDLE quality control checks and annual inspections on the one hand and the monthly agency inspections on the other.5/ First and foremost, the FDLE personnel are better trained. FDLE personnel have been trained specifically at the manufacturer’s labs to work with the instruments they are inspecting. The FDLE inspections are performed in an ATP lab under better controlled conditions than the agency inspections, which are generally conducted in the same room where the breath testing occurs. The FDLE inspectors use simulators that they keep under strict temperature control and regularly calibrate. Dr. Kirkland stated that the local agency personnel have been trained on how to use the breath test instrument, but not on how to take it apart and how it functions internally. They are trained to push a button and follow procedures. Agency inspectors are able to discover when a machine is not working properly but are not trained to diagnose the problem. Dr. Kirkland opined that the training of the FDLE inspectors is the main reason the agency is able to use the 3% standard for realigning an instrument. Dr. Kirkland pointed out differences in the inspections themselves. The local agency inspection involves a triplicate analysis of each individual standard. The FDLE inspection involves ten analyses of the individual standard, measures barometric pressure, and does a minimum volume sample check. Both inspections check for interference to make sure that ethanol is being measured rather than some other chemical in the breath. Dr. Kirkland explained that FDLE sees a distinction between the accuracy statement set forth in the specifications for the Intoxilyzer 8000 and the acceptable range set forth in the rule. He testified that the specifications represent CMI, Inc.’s representation as to the instrument’s accuracy as a stand-alone proposition, without reference to factors external to the instrument’s analytical capability. Other variables include the dry gas standards and wet bath simulators used in the testing and the tubing and temperature controls associated with the simulators. The skill, training, and experience of the operator may have an effect on the measurement. Dr. Kirkland testified that, while it is possible to achieve the 3% standard under controlled laboratory conditions, the 5% standard is more realistic in the day-to-day usage of the breath test instruments. The Intoxilyzer 8000 is capable of 3% “on really good days,” but the specifications on the external items can introduce a variation to the measurements. In practice, the instrument would have to work better than its specifications to stay in service if the acceptable range were lowered to the 3% standard. Dr. Kirkland noted that the 5% standard is recommended as the acceptable range by the federal National Highway Traffic Safety Administration and by the International Organization of Legal Metrology, a treaty organization that sets international standards for measuring devices. Dr. Kirkland was unaware of any other state that uses an acceptable range criterion of less than 0.005 or 5%. Dr. Kirkland testified that FDLE looks to the federal regulations promulgated by the National Highway Traffic Safety Administration for guidance as to whether the acceptable range defined in rule 11D-8.002(1) should be amended. FDLE also stays apprised of the scientific literature produced by individual laboratories and educational institutions. Dr. Kirkland testified that the 5% standard remains the consensus acceptable range of federal and state governments and of the scientific literature. Ms. Barfield, the former manager of the Alcohol Testing Program, agreed that the “acceptable range” includes not only the instrument specifications, but also the accuracy of the simulators, the environment, and the uncertainty of the dry gas standards. However, she disagreed that the specification sheet for the Intoxilyzer 8000 excludes factors external to the instrument’s analytical capability. Ms. Barfield stated that the 3% standard of the specification by necessity incorporates all of the listed variables. Ms. Barfield explained that in order to establish the accuracy standard for the Intoxilyzer 8000, the manufacturer had to make measurements using external devices and had to account for the environment in which the instrument was used. She testified that “You don’t change the accuracy standard of an instrument because it’s going to be used in a messy room. You need to account for that, control that, limit it, and then use the device.” Ms. Barfield opined that the rule should employ the manufacturer’s accuracy specification because the manufacturer has established the 3% standard as the capability of its device, accounting for all the other variables. She had intended to change the rule to a 3% or 4% standard as part of her overall plan to automate the breath test instrument inspection process, but she left her position as manager of the Alcohol Testing Program before her plan could be enacted. Ms. Barfield believed that the lower standard would increase public confidence in the accuracy of the tests. Mr. Malhiot testified that during the switch from the Intoxilyzer 5000 to the Intoxilyzer 8000 in 2006, FDLE had internal discussions about dropping the calibration of the instrument down to a 3% standard for purposes of the “accepted range” in the rule. He stated that the decision was made to wait two years in order to collect data to establish how many more instruments would fail inspection under a 3% standard. He stated that the budget crisis of 2008 put an end to any ideas of wholesale rule changes at FDLE. Mr. Malhiot could not name another state that uses the 3% standard, but stated that in his experience he believed that the Intoxilyzer 8000 could meet the 3% standard in the field.
The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
