Findings Of Fact The Respondent, Deborah Sanchez Nelson, L.P.N., admits that on or about February 23, 1978, on the sixth floor of Palmetto General Hospital, Hialeah, Florida, several ampules of a controlled drug, to wit: Demerol (Meperedine) Injectable, were discovered to have been tampered with in that the fluid levels were not uniform as is true of untampered ampules. The Respondent was assigned to medications on the sixth floor of said hospital and was questioned concerning the incident and admitted to having taken said narcotic. A search of the Respondent's purse by an officer of the Hialeah Police Department revealed a vial labeled as water, containing approximately 12 cc of clear liquid, which upon being chemically analyzed proved to be Meperedine. Deborah Sanchez Nelson had worked at Palmetto General Hospital from February 10, 1978, until the incidents described above on February 23, 1978. Nelson has voluntarily not worked as a licensed practical nurse since that date and is currently employed at J. C. Penny's as a salesperson. Freda Drees, Director of Nursing at Palmetto General Hospital, first met Nelson upon her employment on February 10, 1978. Drees observed Nelson during the hospital's orientation program and later after she assumed her duties with the hospital. Drees described Nelson as a good nurse. Mitchell M. Ross, Director of Pharmacy, Palmetto General Hospital, testified that he had known Nelson for approximately four years, having first met her while employed as a pharmacist at Parkway General Hospital. Nelson was employed at Parkway General Hospital serving on the night shift. Ross had occasion to observe Nelson and stated that she was very good with patients. Ross stated that there had never been any trouble with Nelson at Parkway General Hospital involving drugs and that because of his position with the hospital he would have been aware of any discrepancies or violations. Dorothy Ware, State Probation Officer, Department of Corrections, testified that she had known Nelson since July, 1978, when Nelson was assigned to her as a probationer. Nelson had been placed on probation by the Broward County Court as a result of her conviction for leaving the scene of an accident which occurred on approximately February 28, 1978. Ware stated that Nelson admitted her drug involvement to her during their initial interview and sought assistance from Ware in dealing with her drug problem. Nelson was referred by Ware to a drug rehabilitation program and immediately contacted this program. However, testing by the program revealed that Nelson was not using drugs, and she was not placed in the program. Ware stated that Nelson was very responsible, had met all obligations of her probation to include paying the cost of her probation as directed by the court. Ware stated that Nelson was very remorseful about her drug involvement and having taken drugs from the hospital. Ware recommended that no action be taken that would deny Nelson her right to practice practical nursing. Deborah Sanchez Nelson testified on her own behalf and admitted she had been involved with drugs for eight months. She stated that her involvement arose when she became personally involved with an individual who was involved with drugs and started using drugs herself. The drug of use was Demerol, which her friend was supplying. She stated that she had not admitted to herself that she was addicted and needed drugs until the incident at Palmetto General Hospital. At that time she had broken off her relationship with the person with whom she was involved and who was supplying her with the drug, Demerol. Nelson stated that the accident which had led to her conviction for leaving the scene of an accident had occurred because she was distraught over her theft of drugs from the hospital, the termination from her job, and the realization that she was addicted to drugs. After the accident, Nelson was admitted by a psychiatrist to the hospital for treatment. Nelson stated her involvement with drugs was over and that she had a better self-image of herself. Her testimony concerning her no longer being involved with drugs was confirmed by Ware's testimony that the study done of Nelson by the drug referral service revealed that Nelson was not using drugs. Nelson stated that she missed nursing, desired to continue practicing nursing, and would submit to any conditions established by the Board if permitted to continue in nursing.
Recommendation The admissions of the Respondent clearly establish that she violated the provisions of law cited above. The testimony in mitigation establishes that the Respondent was, prior to her involvement with drugs, a fine nurse who was good with patients. The Respondent's involvement with drugs arose out of a personal involvement with an individual who was also involved with drugs and supplied the Respondent with Demerol, which was the drug of abuse. The Respondent testified that she had not admitted to herself her addiction until her supply of Demerol was cut off, when her personal relationship with the individual supplying her was terminated. Nelson has sought professional treatment for her personal and drug problems, overcoming her drug addiction and apparently the personal problems which gave rise to it. She has voluntarily not practiced nursing for approximately one year. The Director of Nursing for Palmetto General Hospital and the Director of the Pharmacy at Palmetto General Hospital both voluntarily testified in her behalf. Her probation officer voluntarily appeared and confirmed that Nelson was no longer involved in drugs, was deeply remorseful over her involvement with drugs and stealing drugs from the hospital, and had responsibly met all of the terms of her probation for conviction of an unrelated offense. Her probation officer specifically recommended that no action be taken to deny Nelson the opportunity to practice nursing. Nelson testified and exhibited remorse and concern over her actions, freely admitted her addiction, and stated that she had overcome her drug problem and personal problems and turned her life around. She stated that she missed nursing and desired to return to nursing. The use of drugs by a nurse is one of the most serious violations of Chapter 464 because of the access available to medical personnel and because they must be mentally and physically capable of attending patients whose lives and well-being are entrusted to them. If possible, the theft of drugs from patients, or the adulteration of drugs for patients' use, is more serious because it affects the strength of the drugs administered and subjects the patient receiving them to pain and suffering. However, addiction is a powerful thing, and it overcomes the natural inclinations and professional training one has received. Unquestionably, those guilty of such violations should be appropriately disciplined. Generally, in a case involving patients' drugs a suspension of no less than two years would be recommended. However, in this instance the Respondent voluntarily removed herself from nursing nearly one year ago, which should be considered in determining the final penalty. Also, her own efforts and success in overcoming her personal problems and addiction must be considered. Based on the foregoing Findings of Fact Conclusions of Law and Facts in Mitigation, the Hearing Officer would recommend that the Board suspend the license of the Respondent for 24 months, give credit to the Respondent for the 12 months she has voluntarily not practiced, and suspend the last six months of the remaining 12 months, permitting the Respondent to return to practice under conditions established by the Board in order that the Board may maintain closer supervision over the Respondent during her initial return to practice. DONE and ORDERED this 27th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine B. Johnson State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Deborah Sanchez Nelson 19414 NW 30th Court Miami, Florida 33162 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Deborah Sanchez Nelson As a Registered Nurse Case No. 78-2056 19414 N. W. 30th Court License Number 32957-1 Miami, Florida 33162 /
The Issue Whether the School Board should permit Respondent to take sick leave for the period commencing December 18, 2013, through the time it takes for evaluation by a Substance Abuse Professional and any necessary rehabilitation or until Respondent’s sick leave is exhausted, whichever occurs first.
Findings Of Fact Ms. Terry Green Ms. Green has been employed by ECSD for at least five years. (See Hr’g Tr. 102, where the testimony indicates she was hired in 2008). At the time of the final hearing, Ms. Green was on leave without pay from her position as a school bus driver, her employment status with ECSD since December 18, 2013. As the driver of an ECSD school bus entrusted with the safety of the children she transports on school days, Ms. Green is required to meet certain criteria by the Department of Transportation. For example, she must have an annual medical examination. Ms. Green must also inform ECSD and the State of Florida of any pharmaceutical substances medically prescribed for her that she takes on a daily basis. Among the pharmaceutical substances on a list in her patient profile with A&E Pharmacy in Pensacola is “Hydrocod/Apap Tab10-325MG.” Ms. Green referred to the substance at hearing by its proprietary name: “Lortab.” Ms. Green does not take Lortab on a daily basis. She listed it as one of the pharmaceutical substances that are prescribed for her when she was hired by ECSD because she takes Lortab occasionally. Lortab Lortab is the proprietary name for a tablet prescribed for pain management. Its active ingredients are “acetaminophen” (commonly known as Tylenol) and “hydrocodone.” Ms. Green offered an exhibit (Ex. R-2, attached to the Transcript of the final hearing), which shows relationships between hydrocodone and codeine and morphine. It cannot be determined on the state of this record whether Lortab metabolizes in the human body into codeine and morphine, but the exhibit offered by Ms. Green raises that possibility. Ms. Green’s Illness Ms. Green was ill for a period of about three weeks that commenced around November 18, 2013, and stretched into the early part of the week of December 9, 2013. Her recovery from the illness lasted until at least the end of January 2014. For much of the time after November 25, 2013, during her illness and recovery, Ms. Green was bed-ridden. The severity of her illness was unusual. As Angela Green, her daughter, testified, “my mom has never been like that.” Hr’g Tr. 83. Running a fever as high as 103 degrees, Ms. Green showed up for work and drove her school bus from Monday, November 18 through Friday, November 22, 2013. Her illness continued through the weekend of Saturday, November 23, 2013. On Sunday, November 24, 2013, Ms. Green’s mother tried to convince her to go to an emergency room (“ER”). She had seen Ms. Green in the morning and observed, “she was a pretty sick gal.” Hr’g Tr. 75. The record is silent as to whether Ms. Green went to the ER, but it seems likely that she did not. November 25, 2013 Sometime during the early morning hours of Monday, November 25, 2013, a school day, prior to reporting for work, Ms. Green took a Lortab. Ms. Green went to work despite her illness and despite having taken the Lortab. Her determination to report to work and perform her duties is a characteristic ingrained in her from early childhood. As her mother testified, she required Ms. Green to attend school as a child unless she was “pretty much . . . on [her] death bed.” See Hr’g Tr. 77. While Ms. Green was driving the school bus that morning, a school bus assistant (another ECSD employee assigned to the bus) became concerned about Ms. Green’s condition. The concern was reported to the ECSD’s Office of the Director of Transportation. A replacement driver was sent to the bus, and Ms. Green returned to the office. A form to be used to help determine reasonable suspicion for drug/alcohol testing, entitled “Reasonable Suspicion Drug/Alcohol Testing Checklist for Supervisors” was filled out by observers to determine whether Ms. Green should be subjected to drug or alcohol testing. See Pet’r’s Ex. H. The form shows Ms. Green was observed at 9:05 a.m. in the office. Her speech was slurred, and the checklist indicates that she was mumbling. She stumbled, appeared dazed, and had unkempt hair or clothing. Four boxes were checked on the form under the section called “Today’s Job Performance”: “Mistakes due to poor judgment,” “Low productivity/Taking longer to complete tasks,” “Complaints from others about behavior/attitude/driving,” and “Late to work.” Under “Interpersonal Behavior,” two boxes were checked: “Overly sensitive to real/imagined criticism,” and “Major change in personality.” Typed onto the form with regard to the source reporting any drug/alcohol use was: “Bus assistant reported initially then corroborated in the office with two route managers who see her frequently.” The observations led to the conclusion, “The combination of factors indicates she is under the influence.” The “Test Requested” section of the form had a box checked for “Drug and Alcohol.” The form was signed by two observing supervisor/officials and dated November 25, 2013. The route managers, who observed Ms. Green, reported to the Director of Transportation that there was a reasonable suspicion that Ms. Green was under the influence of drugs or alcohol.2/ The Reasonable Suspicion Drug/Alcohol Test Ms. Green submitted to the drug/alcohol test the same day. The test results are reported on a “Federal Drug Testing Custody and Control Form.” See Pet’r’s Ex. F, at 6. Dated November 25, 2013, it shows ECSD as the “employer,” Dr. Natalie Hartenbaum of FirstLab as the medical review officer (“MRO”), and Ms. Green as the donor. Ms. Green signed a certification on the form that she submitted an unadulterated urine specimen to the laboratory’s collector and that the information affixed on the specimen bottle was correct. The report shows the specimen was verified as positive for two opiates: codeine and morphine. The Timeline The third page in Petitioner’s Exhibit F is a “TIMELINE” under “DONOR NAME: TERRY GREEN” (the “Timeline”). Compiled by FirstLab with regard to the specimen Ms. Green submitted for analysis, the Timeline commences on November 25, 2013, and concludes with entries the following December 5, 2013. The Timeline shows that the specimen collected on November 25, 2013, was received at the laboratory on November 26, 2013, for drug/alcohol analysis. According to the Timeline, the laboratory transmitted the result to FirstLab on December 3, 2013: “MORE THEN [sic] ONE SUBSTANCE FOUND.” Pet’r’s Ex. F, at 6. The Timeline shows involvement of the MRO, beginning on December 4, 2013. According to the Timeline, the MRO, after being sent the documents for review, called the Donor (Ms. Green). After an interview, the Timeline entry shows: “MRO GAVE DONOR 24 HOURS TO FAX RX.” The entry for December 4, 2013, concludes: “MRO DETERMINATION MADE POSITIVE FOR CODEINE AND MORPHINE. ANOTHER SUBSTANCE PENDING.” Pet’r’s Ex. F, at 3, TIMELINE (emphasis supplied). The Timeline shows two entries for December 5, 2013. The first December 5 entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS POSITIVE FOR CODEINE, MORPHINE AND PENDING FOR ANOTHER SUBSTANCE. MRO REC’D AND VERIFIED RX PROFILE FOR THE OTHER SUBSTANCE.” Id. (emphasis supplied). The second December 5 entry and final Timeline entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS VOICE MAIL, NO CHANGE IN RESULT. OTHER SUBSTANCE NEGATIVE.” Id. (emphasis supplied). It may be inferred from the timing of the report of the positive for codeine and morphine (prior to a determination on the “other substance”), the reference to the receipt and verification of the RX profile “for the other substance,” and the conclusion in a separate entry that the “other substance” was negative, that the MRO examined the RX profile only for the other substance. It may also be inferred, therefore, that the MRO did not investigate whether the codeine and morphine positives in the specimen could have been due to the ingestion and metabolizing of Lortab or, as it is referred to on the RX profile, “HYDROCOD/APAP TAB.” See Ex. R-1, attached to the Transcript of the final hearing. The Return to Work Agreement The next day, December 6, 2013, Ms. Green interrupted a stay at a hospital for the illness she had had since mid-November in order to meet outside the hospital with an ECSD Administrator and her Union Representative. The meeting led to the execution of a Return to Work Agreement signed by Ms. Green, the ECSD Administrator, and Ms. Green’s Union Representative. The title of the agreement contains the following: “FIRST TIME POSITIVE DRUG/ALCOHOL SCREEN.” See Pet’r’s Ex. A. The body of the agreement contains the following: I, Terry Green, in exchange for my continued employment with the School District of Escambia County, Florida, and consistent with the provisions of Article XI.3 - Discipline Involving Drug or Alcohol Abuse or Dependency, Section B, hereby acknowledge that I have received a “First Time” positive drug/alcohol test result . . . . I am required to undergo a Substance Abuse Professional (SAP) evaluation and participate in the SAP recommended drug/alcohol abuse program at my expense with a goal of returning to full employment upon my successful completion of the prescribed rehabilitation regimen. Id. It is apparent that prior to November 25, 2013, Ms. Green had not had a record of any drug or alcohol offenses while in the employ of ESCD. The Return to Work Agreement acknowledges Ms. Green’s understanding that she “had the benefit of competent legal counsel and/or Association representation [as shown by the signature on the agreement of a Union/Legal Representative] . . . .” Pet’r’s Ex. A. It also acknowledges Ms. Green’s entry into the agreement “voluntarily and without duress or coercion of any kind and with full understanding of [her] rights and any waiver thereof.” Id. Nonetheless, at hearing Ms. Green claimed that she signed the Return to Work Agreement in reliance on her Union Representative’s advice without fully understanding the agreement’s implications. It was not until she met with an attorney provided to her by the Union who told her that she “had signed away [her] rights,” Hr’g Tr. 91, that she fully realized its significance. Signing it was an act she would not have committed, she asserted at hearing, even if it meant losing her job, had she thought it affected her right to challenge the positive drug/alcohol test. ECSD Action On December 5, 2013, ECSD notified Ms. Green that she had been placed on leave with pay. Section IX.6(b)(6) of the Master Contract between the School District of Escambia County, Florida and the Union of Escambia Education Staff Professionals, FEA, NEA, AFT (the “Master Contract”)3/ states as follows: Upon receipt of a positive test result in a first offense drug or alcohol screening, the employee may be administratively reassigned to her/his home pending appropriate due process procedures. The employee shall be recommended for suspension without pay until she/he completes a District and Union approved Substance Abuse Professional (SAP) evaluation and the drug/alcohol dependence or abuse rehabilitation program at the employees’ expense as recommended by the SAP. (The employee may utilize the District Health Care Program to the extent specified for the rehabilitation program in the DHCP.) Pet’r’s Ex. D, at 8 (page 35 of the Master Contract). Consistent with the section of the Master Contract quoted above, the superintendent of the ECSD recommended that Ms. Green be placed on suspension without pay until completion of an evaluation by the SAP and any rehabilitation program recommended by the SAP. On December 17, 2013, the School Board approved the superintendent’s recommendation, and Ms. Green was suspended without pay beginning December 18, 2013. Ms. Green’s subsequent request to use sick leave beginning December 18, 2013, was denied by ECSD. Ms. Green’s Petition On January 14, 2014, Ms. Green, through counsel provided by the Union, submitted a Petition for Hearing to the ECSD. The petition requests that Ms. Green be allowed to use sick leave after December 18, 2013, the date the School Board placed her on leave without pay. The Petition asserts that there are no disputed issues of material fact. Facts cited in the petition include Ms. Green’s employment as a school bus driver with ECSD, her initial placement on leave with pay while a “reasonable suspicion” drug test was conducted, her entry into the Return to Work Agreement, and the School Board’s subsequent placement of Ms. Green on leave without pay effective December 18, 2013. The Petition does not definitively admit that Ms. Green is a substance abuser. Rather, it asserts that she “is unable to perform her duties as a bus driver while she is evaluated and receiving rehabilitation for substance abuse, which is a sickness.” Petition for Hearing, at 2, ¶ 9. The Petition, therefore, depends on the evaluation of the SAP and a determination that Ms. Green is in need of rehabilitation for substance abuse. If Ms. Green were evaluated by the SAP and determined not to be in need of rehabilitation for substance abuse, there would be no basis for the petition or the relief it seeks. Ms. Green’s Need for Rehabilitation for Substance Abuse At the hearing, Ms. Green’s mother, Henrietta Moye, was asked the following question by Ms. Green: “Have you ever witnessed me being, in the last two years or almost two years being here, under the influence of any type of drug to impair or any type of alcoholic beverage to impair me?” Ms. Moye answered, “No.” Hr’g Tr. 76. Ms. Moye, moreover, is not aware of any time in her life that Ms. Green has abused any type of medication or consumed alcohol to the point of intoxication. At the hearing, employees of ECSD did not contend that Ms. Green needs rehabilitation for substance abuse. Nor has ECSD expressed its position based on Ms. Green’s relationship to substance abuse. Rather, it bases its position solely on procedures dictated by a single, first-time, drug report positive for opiates and the Return to Work Agreement. The record is silent as to the outcome of an evaluation by the SAP or whether such an evaluation has ever been conducted. Sick Leave Whether Ms. Green is in need of rehabilitation for substance abuse or is a person free of substance abuse, no evidence was produced at hearing that substance abuse is a sickness that would entitle her to sick leave. Likewise, no statute, rule, regulation, or any applicable law was produced by Ms. Green that would entitle her to sick leave for substance abuse while she was placed on leave without pay pending an evaluation by the SAP.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board continue to deny Ms. Green’s request to use sick leave during her suspension without pay that the School Board imposed effective December 18, 2013, and enter a final order that denies the relief sought in Ms. Green’s petition. DONE AND ENTERED this 2nd day of May, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 2nd day of May, 2014.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner School Board has just cause to terminate the Respondent's employment as a teacher, with reference to a positive drug test for purported use of marijuana.
Findings Of Fact The Respondent has been employed at Dolores S. Parrott Middle School (DSPMS) as a teacher for a total of seven years, including the 2008-2009 school year. The Respondent taught Health, Career Education, and Physical Education. A large component of the Health curriculum is drug use prevention. It includes, as a portion of its curriculum and discussion, the subject of marijuana use. The Respondent was the S.T.A.N.D. (Students Taking Action on Drugs) sponsor at the school for several years prior to the 2008-2009 school year. He was thus responsible for providing students with information about the dangers of using and abusing drugs and the possible consequences related thereto. His position as the Health teacher and the S.T.A.N.D. sponsor made him a role model for students regarding the subject of drug use and drug abuse prevention. The principal at DSPMS for the 2008-2009 school year was Leechele Booker. She has been principal at that school for two years and was an assistant principal and teacher for some twelve years prior to that with the Hernando County School District. In her capacity as principal she is responsible for supervising and evaluating employees, enforcing policy and procedures, as well as investigating alleged violations of policies, law and recommending any resultant disciplinary measures to the District. On March 11, 2009, an unidentified woman called the principal at DSPMS and left a voice mail message identifying herself as "Michelle". She requested that the principal return her call concerning one of the teachers at the school. The principal returned the call to the number that the woman had left. Since no one answered that call, the principal left a message identifying herself. Ms. Booker received a return call approximately thirty minutes later. When Ms. Booker took the call the woman identified herself as Michelle, and acknowledged receiving the message which Principal Booker had left on the voicemail. The person identified as Michelle thereupon informed the principal that she had knowledge of one of the teachers at DSPMS engaging in recent use of marijuana. She claimed to have observed him smoking marijuana over the past weekend and told the principal of her concern at seeing that conduct by one of the teachers. Michelle also advised Ms. Booker that the teacher's fiancée was present when the teacher was smoking marijuana. She identified the teacher's fiancé as a woman named "Brenda." She then stated that the teacher's name was "Mike" and that he was the Health teacher at DSPMS. Ms. Booker then realized that there was only one teacher by that name at the school, the Respondent, Michael Provost. She was already aware that the Respondent's fiancée's name was Brenda, having met her on several occasions. The principal ended the call by advising Michelle that she would investigate the matter and thanked her for the information. She did not request any additional contact information from Michelle. She did not learn additional facts concerning where the Respondent had been seen using marijuana, when it occurred, how Michelle knew the Respondent, or the nature of her relationship with the Respondent. It is likely, although not clear from the record, that Principal Booker did not want to reveal to the caller what her thoughts might be concerning the identity of the teacher who was the subject of the complaint. After ending the phone call with Michelle, Ms. Booker met with Assistant Principals Gary Buel and Nancy Vasquez. She told them of the phone call and the nature of it and they discussed what actions should be taken, based upon the Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace." Ms. Booker then contacted the district office of the Petitioner and spoke with the secretary in "Human Resources." She was thereby advised that an investigation would have to be conducted and that Heather Martin, the Administrator for the Department of Human Resources, would have to be involved. After contact with the district office, Principal Booker and Ms. Vasquez discussed the matter and agreed that they had "reasonable suspicion," under the above-referenced policy, to require the Respondent to take a drug test. The Petitioner maintains that that reasonable suspicion is based upon the information provided in the phone call with Michelle, as well as the fact that the principal was aware that the Respondent was having financial difficulties and needed to be paid for extra-curricular duties immediately, rather than waiting for the normal payment process. He was known to have requested permission to leave work early more frequently than other employees. Ms. Booker called the Respondent to her office to report the allegations lodged against him by the caller. She advised him of the phone call and the reference to smoking marijuana. She informed him that she believed she had reasonable suspicion to have him drug-tested. She told him that Mr. Buel would escort him to the testing facility. The principal then left her office, but was called back because the Respondent had some questions for her. She located a Union representative, Marlene Richie, who accompanied her back to the office to confer with the Respondent. When the principal and Ms. Richie arrived at the office, the principal informed her of the allegations against the Respondent. Ms. Richie made some phone calls to Sandra Armstrong, the Executive Director of the Teachers Association and Joe Vitalo, the Union President. After these phone conversations, Ms. Richie informed Ms. Booker that the Respondent wished to speak to her alone. Ms. Booker spoke with the Respondent alone, in her office, and he informed her that he had been smoking marijuana and told her that the test would be positive. The Respondent admitted his marijuana use because he respected the principal, and it was in everyone's best interest for him to be honest and candid about his problem. He was not coerced or under any pressure to make the admission. He made the admission voluntarily. The Union representative, Ms. Richie, then rejoined Ms. Booker and the Respondent in the office, and the Respondent informed Ms. Richie of what he had told Ms. Booker concerning his marijuana use. Ms. Booker informed the Respondent that he would still need to have drug testing, and she also discussed the Employee Assistance Program ("EAP"). The Respondent volunteered to enroll in the EAP program and made an appointment to see a counselor. The Respondent had not requested assistance or a referral to the EAP before the conversation with the principal on this day, when he admitted his marijuana use. There are two means of referring employees to the EAP under the district's drug and alcohol policy; either self- referral by the employee or referral by management. Under this policy, no disciplinary action is taken when an employee self- refers to the program, or when he or she admits to a drug or alcohol problem and is referred to EAP by a manager. The Petitioner maintains that the Respondent did not volunteer that he had a drug or alcohol problem until confronted with the principal's suspicion and direction to take a drug test. At the same time, however, the Petitioner acknowledges that the Respondent's admission concerning his marijuana use was not because he felt coerced. The Petitioner maintains that, in its view, the request for EAP assistance was not a voluntary request and that therefore, under the Petitioner's policy, disciplinary action can still be taken. The preponderant, persuasive evidence, based upon credibility of the witnesses, including the Respondent, demonstrates that the request for EAP assistance was a voluntary one and was done in conjunction with the principal voluntarily discussing the availability of the EAP program to the Respondent. The Respondent was under no pressure or coercion when he made the admission. In fact, the Respondent, as well as the Petitioner, have presented substantial argument concerning whether there was even "reasonable suspicion," under relevant case law, for the principal to order a drug test. Because of the findings made, and conclusions reached herein, the question of whether "reasonable suspicion" for drug testing existed is immaterial, in light of the District's Policy 6.33 and Section 112.0455, Florida Statutes (2008). After meetings and conversations with Union representatives, the Respondent agreed to the drug test and the results were received on March 18, 2009. They indicated that the test was positive for the presence of marijuana. The Respondent was suspended with pay on March 12, 2009, pending the outcome of an investigation. The Respondent was advised in writing of his suspension at the time of his meeting with the principal and through a letter from the Superintendent. A pre-determination conference was scheduled for March 20, 2009, after the receipt of the drug test results. This was to provide the Respondent an opportunity to dispute any of the information collected through the investigation, before discipline was recommended. The Respondent attended the conference and again admitted to using marijuana and stated that he was aware of the Drug and Alcohol-Free Workplace Policy. He explained that his drug use was the result of personal problems he was experiencing. Following the pre-determination conference, and before making a disciplinary recommendation to the Superintendent, Ms. Martin attempted to contact the informant Michelle, to confirm her story. It was important for Ms. Martin to ensure that she had a name and phone number of the informant since the District does not act on anonymous complaints. A complaint is deemed anonymous if the District has no contact information and no name. Ms. Martin called the number that Michelle had left with the principal and the phone was answered by someone who said it was "Chrissy's phone." Ms. Martin asked for Michelle and a different person came on the line and identified herself as Michelle. The phone number and phone in question were registered to a Chrissy Campbell. Chrissy Campbell is married to the Respondent's fiancée's brother. The Respondent and Campbell are acquainted with each other but do not get along. Ms. Martin advised Michelle that she was calling in reference to the complaint received earlier by the principal. She stated that the District was conducting an investigation and asked if Michelle was willing to provide additional information. At that point, Michelle refused to give any additional information. In her conversation with Michelle, Ms. Martin did not use the Respondent's name, nor did she indicate the call concerned a drug test. After her conversation with Michelle, Ms. Martin reviewed the drug test results and the personnel file, including the Respondent's disciplinary history, before making a recommendation for discipline to the Superintendent. The Respondent's personnel file contained three additional discipline records. In 2005, he received a written warning concerning a violation of the Professional Code of Ethics regarding an inappropriate comment. In 2007, he was reprimanded in writing, stripped of his S.T.A.N.D. sponsor duties and suspended without pay for ten days for failing to properly handle a student's reported drug use. In 2008, he received a Letter of Direction for failing to follow the curriculum and being too personal with students. Ms. Martin took that disciplinary history into consideration in making her recommendation to the Superintendent for termination of employment. By letter of March 23, 2009, the Superintendent advised the Respondent of his recommendation to the School Board that the Respondent be terminated from employment. This proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County dismissing its Petition for Termination of Employment and reinstating the employment of the Respondent with attendant provision of back pay and all related benefits. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of September, 2009 COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Wayne S. Alexander, Superintendent School Board of Hernando County, Florida 919 North Broad Street Brooksville, Florida 34601 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
The Issue Whether Respondent Terri Medus (Respondent) engaged in an act of immorality, conduct that violates Orange County public school policy, conduct that violates the Code of Ethics, conduct that violates the Principles of Professional Conduct of the Education Profession, or conduct that compromised her effectiveness as an educator.
Findings Of Fact Stipulated Facts During all times relevant hereto, Petitioner employed Respondent as a classroom teacher. Respondent has held a Professional Service Contract with Petitioner since May 1986. Respondent's Professional Service Contract states that Respondent will not be terminated "except for just cause," as provided by Florida Statutes. Respondent pled no contest to a driving under the influence (DUI) charge stemming from an arrest on March 26, 2014, and was adjudicated guilty, in accordance with section 316.656, Florida Statutes. Petitioner did not discipline Respondent for the DUI arrest or subsequent adjudication. Reasonable Suspicion Respondent admits that prior to December 1, 2014, she was aware of Petitioner’s drug-free workplace policy (Policy) and that she could be disciplined for reporting to work under the influence of alcohol. December 1, 2014, fell on a Monday. On Saturday, November 29, 2014, Respondent flew from Detroit to Orlando after visiting her son during the Thanksgiving holiday. Respondent began consuming alcoholic beverages on the plane ride to Orlando. The following day, November 30, 2014, Respondent, by her own admission, consumed between five to ten rum and Coke beverages, which resulted in Respondent becoming intoxicated. While at work on the morning of December 1, 2014, Respondent attended a 9:00 a.m. meeting. Ms. McCray, Respondent’s immediate supervisor, was also present at the meeting and sat next to Respondent. The meeting lasted approximately 10 minutes. Immediately following the meeting, Ms. McCray wanted to debrief with Respondent and another employee regarding what was discussed during the meeting. During the debriefing, Ms. McCray detected the smell of alcohol on Respondent’s breath, observed that Respondent’s hands were shaking and that her speech was slurred when she responded to questions asked, that Respondent’s body language was “a little wavering,” and that Respondent’s eyes were “glossy.” Additionally, when Ms. McCray asked questions of Respondent during the debriefing, Respondent's answers did not quite match the questions being asked by Ms. McCray. Ms. McCray repeatedly asked Respondent if something was wrong. At first, Respondent said she was fine. However, Respondent then said to Ms. McCray that she took Benadryl the night before the meeting because she could not sleep. Ms. McCray memorialized her observations of Respondent in a spiral notebook that she personally maintains. Upon concluding that Respondent was likely suffering from the effects of excessive alcohol consumption, Ms. McCray was assisted in assessing Respondent’s condition by Rafael Sanchez, who works for Petitioner as a senior manager in Petitioner’s employee relations department. Mr. Sanchez is also a trained reasonable suspicion manager. Based on his observations, Mr. Sanchez completed a reasonable suspicion checklist and noted thereon that Respondent had slurred speech, an odor of alcohol on her breath or person, an unsteady gait or lack of balance, glassy eyes, and a runny nose or sores around her nostrils. With respect to Respondent's gait, Mr. Sanchez observed Respondent walk into the side of an open door. With respect to her speech, Mr. Sanchez observed that Respondent was speaking very slowly and had difficulty articulating her words. Finally, Mr. Sanchez testified that Respondent demonstrated marked irritability when she was told she would have to be driven to a facility for reasonable suspicion alcohol testing. Petitioner was justified in requesting that Respondent submit to reasonable suspicion testing. Breathalyzer Testing After concluding that there was reasonable suspicion for testing Respondent for alcohol-related impairment, Ms. McCray drove Respondent to ARCPoint Labs, the facility used by Petitioner for reasonable suspicion drug and alcohol testing. Karen Carmona works for ARCPoint Labs as a specimen collector and has been certified as such by the U.S. Department of Transportation since 2013. Ms. Carmona was trained to operate the machine utilized to test Respondent, the RBT IV by Intoximeters.1/ Respondent’s first breathalyzer test, which was time- stamped at 11:46 on December 1, 2014, showed that Respondent’s breath alcohol content (BAC) was 0.198 G/210L. Respondent’s second test, which was time-stamped at 12:04 (18 minutes later) on December 1, 2014, showed Respondent’s BAC level at 0.188 G/210L. The operator’s manual for the RBT IV provides that “[i]f an accuracy check has not occurred within the past 31 days, an accuracy check should be run prior to running a subject test to ensure the instrument has maintained proper calibration.” An accuracy check of the RBT IV device used to test Respondent was performed on November 22, 2014, which is within the prescribed window established by the manufacturer. For the RBT IV device used to test Respondent, the accuracy check must read plus/minus .005 of the expected target value of .038. The accuracy check performed on November 22, 2014, showed a reading of .043, which is within the acceptable range established by the manufacturer. The validity of the accuracy check was confirmed by a print-out from the RBT IV device which reads “CAL CHECK OK.” If the RBT IV had produced a value outside of the parameters of the accuracy check, then the machine would have generated a printout indicating “OUT OF CAL” and it would have been necessary to perform an actual calibration of the testing device. Unlike the general accuracy check, which must fall within plus/minus .005 of the expected value of .038, an accuracy check following a calibration “should be no greater than plus/minus “.003 of the expected value if the calibration is to be considered successful.” Because the RBT IV was operating within the acceptable parameters of the accuracy check, it was not necessary to perform a calibration of the machine. Respondent’s argument that the machine was out of the acceptable accuracy range is not supported by the evidence. The RBT IV used to test Respondent on December 1, 2014, was operating within the limits established by the manufacturer. Additionally, a December 22, 2014, accuracy check of the RBT IV used to test Respondent read .042, which was also within acceptable operational limits. Ice Breakers Candy Respondent also challenges the accuracy of the breathalyzer results on the grounds that the readings cannot be trusted because prior to the administration of the test she consumed Ice Breakers candy. On cross-examination by Petitioner, Respondent’s expert, Mr. Thomas Workman, testified as follows: Q: Your opinion is that her –- that Ms. Medus eating Ice Breakers would so throw off the test that it would elevate her breath alcohol content up to .198 and .188? A: I believe it would –- it would have an effect, I don’t know the degree of the effect, but it would – it would not produce a reliable result. Q: What would be –- what would be your estimate of the degree of effect of how much it would be off? A: It could account for the entire reading or it could account for a portion of the reading, I –- I can’t say. Tr., p. 376. Mr. Workman’s also testified that one Ice Breaker “could” cause a .198 G/2101 BAC reading depending on the “amount of compound that’s in the mouth compared to the amount of alcohol that would be coming from the breath.” Tr., p. 377 Dr. Smith, Petitioner’s expert, disagrees with Mr. Workman’s opinion and testified as follows: Even if either one of those products contained any ethanol or methanol, which are the alcohol that the device is certified to measure, the 15 minute wait between the initial and this confirmation test, when she did not have anything in her mouth at all, any residual alcohol that may have been a product of the food or the gum would have completely dissipated. So it would not be — that's why we have that 15-minute wait to ensure that any residual mouth alcohol, not alcohol that is in the bloodstream, would not be measured on the confirmation test. Tr., p. 283. Mr. Workman’s opinion is rejected because by his own admission, he is unable to say with the requisite degree of reliable scientific probability that any Ice Breaker candy consumed by Respondent sufficiently compromised Respondent’s breathalyzer tests to the point of rendering the same unreliable. Respondent’s Rate of Alcohol Absorption Mr. Workman also testified that Respondent’s rate of absorption of alcohol makes it unlikely that her BAC readings were accurate. Mr. Workman’s testimony is based on numerous assumptions, none of which have adequate proof to invalidate the results of the breath alcohol test. First, Mr. Workman assumed that Respondent did not have any alcohol past midnight on November 30, 2014. Mr. Workman admitted that if the information regarding when Respondent stopped consuming alcohol was erroneous, then his assumption would be incorrect. Moreover, given the amount of alcohol admittedly consumed during the weekend by Respondent, her testimony that she stopped drinking at midnight is unreliable. As previously noted Respondent starting drinking at around noon on Saturday and continued drinking throughout the entire day on the following Sunday. Such a period of sustained drinking makes it unlikely that Respondent was cognizant of the time when she stopped drinking before retiring to bed. Second, Mr. Workman testified that his theory regarding Respondent’s metabolic rate of alcohol absorption would depend on her weight and build. However, Mr. Workman testified that he has never seen Respondent and has no idea of her actual build and weight, other than what he had been generally told by Respondent’s counsel. Additionally, Mr. Workman testified that he does not know the rate at which Respondent actually metabolizes alcohol. Dr. Smith testified there would have to be evidence of a person’s actual metabolic rate in order to perform the extrapolation suggested by Mr. Workman. There is no evidence in the record which indicates how Respondent metabolizes alcohol. As such, Mr. Workman's extrapolation is rejected as unreliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order that: Terminates Respondent’s Professional Service Contract for just cause, due to Respondent committing misconduct in office by violating Petitioner’s drug-free workplace policy; Dismisses the allegation(s) that Respondent committed an act of drunkenness; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Code of Ethics of the Education Profession in Florida; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Principles of Professional Conduct for the Education Profession in Florida; and Dismisses the allegation(s) that Respondent committed an act of immorality. DONE AND ENTERED this 7th day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2016.
Findings Of Fact Background Petitioner was founded by Mr. Art Barker in 1970 and has been operated since that time as a private, non-profit entity. Petitioner receives no funds from any unit of government and is a valuable asset in the field of drug abuse treatment and prevention. Petitioner enjoys a good reputation in the community it serves and has demonstrated its ability to help people with substance abuse problems. Approximately 7,000 people have gone through Petitioner's drug abuse program with a success rate in excess of 90 percent. Petitioner was an innovator in the development of the type of drug abuse programs administered by it. The drug abuse program administered by Petitioner has been emulated by approximately 12 other programs in the state. There are not enough programs of this type to satisfy the needs of individuals in the state. Respondent first began licensing drug abuse programs in February, 1972. Petitioner has been continuously licensed by Respondent as a drug abuse program. Petitioner is authorized under License Number 10A-38 to provide "day care with host component." The licensed address for Petitioner is 919 East Broward Boulevard, Fort Lauderdale, Florida, 33301. Petitioner's license must be renewed annually. Applicable administrative rules require licensees to operate drug abuse programs under the supervision of a "qualified supervisor." Prior to September, 1986, a qualified supervisor was defined as an individual who, by "training or experience" was responsible for providing clinical guidance to counselors. 3/ In September, 1986, the ability of an individual to qualify as a qualified supervisor based solely upon his or her work experience was deleted. Since September, 1986, an individual who wished to satisfy the requirements of a qualified supervisor was required to either satisfy minimum educational requirements or become certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process ("certified addiction professionals" or "CAP designation"). Petitioner demonstrated its good faith effort to comply with Respondent's rules. Respondent's licensing agent advised Petitioner in 1987 that Petitioner would be in compliance with the new requirements for qualified supervisors as long as staff personnel placed their full name and title next to the comments on the client's records. That procedure was followed by staff personnel during the license years for 1987-1988 and 1988-1989. Petitioner's license was renewed during those years with no question from Respondent concerning the credentials of Petitioner's qualified supervisors. During the same license years, Petitioner's personnel were led to believe by Respondent's licensing agent and reasonably did believe that they were in full compliance with Respondent's rules. Petitioner relocated in 1987 and purchased a building rather than leasing one. The decision to purchase the building at the new location was made, in part, in reliance upon Respondent's representation and Petitioner's belief that Petitioner was in compliance with applicable rules regarding qualified supervisors. Respondent refused to issue a regular annual license to Petitioner for the 1989-1990 license year for the sole reason that Petitioner did not have a qualified supervisor. 4/ Respondent specifically determined that neither Mr. Art Barker nor Ms. Lybbi Kienzle satisfy the educational or certification requirements for qualified supervisors. 5/ It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are each competent to perform the duties of a qualified supervisor. Respondent determined that each individual is competent to perform the duties of a qualified supervisor and so stipulated in the joint prehearing stipulation filed in this proceeding. Respondent did not follow its own rule in rejecting Petitioner's request for a deviation. Respondent's current written policy was adopted as a rule after Petitioner's request for a deviation but prior to the formal hearing. Under Respondent's current rule, each district office must make a recommendation concerning each request for deviation made to the district office. The request for deviation and the district office recommendation is then considered by the licensure rules committee. The licensure rules committee then recommends action to appropriate department personnel who may either accept or reject the committee's recommendation. The approval of any request for deviation automatically ends at the time of the expiration date of the regular license. At the time of Petitioner's request for deviation, Respondent was in the process of developing its current written policy. Deviation requests and district office recommendations were considered at the time by an ad hoc committee of anywhere from three to seven people, depending upon who was available. The occurrence of such a meeting, the number of people, and the identity of the committee members was determined by "catch-as- you-can." A licensure rules committee was not officially formed until some time after Petitioner's request for deviation. Petitioner's request for deviation and the recommendation of the district office was not considered by any committee. The district office recommended that Petitioner's request for a deviation be granted. Approval of the request for deviation was recommended by the district office subject to the conditions that the deviation be limited to one year, that Petitioner submit a new request for deviation prior to its annual licensing date, and that the competency of Mr. Barker and Ms. Kienzle to perform the duties of qualified supervisors be documented by their respective resumes. Documentation in the form of resumes was not a significant concern to Respondent and was merely ministerial. The recommendation for approval of the request for deviation was made by employees of the Respondent who have personal knowledge of the experience and competency of Mr. Barker and Ms. Kienzle. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform the duties of a qualified supervisor. The district office, however, did recommend that either Mr. Barker or someone on his staff pursue CAP designation. The recommendation of the district office was overruled by Dr. Iver Groves, Ph.D., Assistant Secretary for Alcohol, Drug Abuse and Mental Health. The request for deviation was rejected on the grounds that Mr. Barker's honorary degree did not satisfy the educational requirements for a qualified supervisor. Dr. Groves determined that deviation from the educational requirements for a qualified supervisor cannot be granted under any circumstances. Dr. Groves suggested that Mr. Barker and Ms. Kienzle comply with the requirements for CAP designation or formal education. Dr. Groves has no personal knowledge of the experience and competency of either Mr. Barker or Ms. Kienzle to perform the duties of a qualified supervisor. Dr. Groves first became involved in this proceeding when a draft of a letter embodying the recommendation of the district office was presented to Dr. Groves for his signature. Dr. Groves spent an ". . . hour [or] maybe two hours . . ." considering Petitioner's request for deviation. Dr. Groves never saw the recommendation of the district office, was unaware that anyone in the district office recommended approval of the deviation, and did not consider the recommendation of the district office in making his determination to reject Petitioner's request for deviation. Dr. Groves never compared the requirements for a deviation in the applicable administrative rule to Petitioner's request for deviation. Dr. Groves rejected Petitioner's request for deviation based upon his concern over the establishment of a precedent for other programs in the state. Dr. Groves primary concern was whether it was appropriate to waive a ". . . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida." It is uncontroverted, however, that there are no other programs in the state that are comparable to that administered by Petitioner. The experience and competency of Mr. Barker and Ms. Kienzle to perform the duties of a qualified supervisor satisfies the purposes of the educational requirements for qualified supervisors. As Dr. Groves stated during his testimony at the formal hearing, the purpose of imposing educational requirements on qualified supervisors is to give Respondent ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program . . . has been through a certain organized set of experiences and has been judged to be qualified." Transcript at 111. Grounds For Deviation Neither Mr. Barker nor Ms. Kienzle satisfy either the educational or certification requirements for qualified supervisors. Neither individual has the requisite education and neither has been certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. The honorary degree received by Mr. Barker from Fort Lauderdale University does not satisfy the educational requirements for a qualified supervisor. Mr. Barker was awarded "The Honorary Degree of Doctor of Social Science" in June, 1972, by Fort Lauderdale University. Fort Lauderdale University was accredited at the time the honorary degree was awarded. The citation attached to the honorary degree states in relevant part that the degree was awarded to: . . . the outstanding drug rehabilitation expert in the United States [who] saved 1,500 young men and women from a life in prison or mental hospital or a premature death from a drug overdose. . . . The ninety per cent success rate of The Seed is a tribute to your genius. Neither Mr. Barker nor Ms. Kienzle satisfy the educational requirements for becoming certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. Applicants for CAP designation must hold a minimum of an Associates Arts degree from a college or university. The degree requirement became effective on January 1, 1991, and it was impossible for either Mr. Barker or Ms. Kienzle to satisfy the educational requirements prior to the formal hearing. Requiring Mr. Barker and Ms. Kienzle to satisfy the educational requirements for a qualified supervisor would interfere with the efficient operation of Petitioner. The time and energy needed to obtain the academic credits would impose an unnecessary hardship on each of them and detract from the time and energy they could devote to the drug abuse program administered by Petitioner. Requiring Petitioner to hire a certified addiction professional would interfere with Petitioner's efficient operation. Petitioner has a positive net worth and can pay for such services. In recent years, however, Petitioner has experienced operating deficits. The amount of funds received as donations and pledges has been less than annual operating expenses. Expenses incurred by Petitioner to hire one or more additional personnel who have obtained the CAP designation would increase Petitioner's operating deficit and further erode Petitioner's remaining net worth. Supervision of either Mr. Barker or Ms. Kienzle by a certified addiction professional would be superfluous and would interfere with Petitioner's efficient operation. Neither Mr. Barker nor Ms. Kienzle need to be supervised by one or more individuals who have obtained the CAP designation in order to perform the duties of a qualified supervisor. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform such duties. Deviation from the educational requirements for qualified supervisors for Mr. Barker and Ms. Kienzle will not jeopardize the health and safety of clients in the program administered by Petitioner, will not abridge the rights of those clients, and will not diminish the level of quality of client care. Mr. Barker is competent to provide clinical guidance to counselors, approve and reassess treatment plans, supervise psychosocial assessment services, and supervise treatment services for Petitioner. Mr. Barker has focused his time continuously and exclusively on running the drug abuse program for Petitioner. Ms. Kienzle graduated from Petitioner's drug abuse program in 1971 and has been employed continuously and exclusively by Petitioner as a counselor and supervisor. A master's degree in a social or behavioral science does not assure competency to perform the duties of a qualified supervisor in a drug abuse program. Respondent's rule does not require the field of academic study to be related to the duties that must be performed by a qualified supervisor. As Dr. Groves stated in his testimony during the formal hearing, the requirement for a master's degree in a social or behavioral science is satisfied by a master's degree in history or English. For the same reason, the requirement of an Associate Arts degree for a CAP designation does not assure competency to perform the duties of a qualified supervisor for a drug abuse program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should be granted a regular license for one year and the requested deviation. The deviation should automatically end at the time of the expiration date of the regular license or at such time as Petitioner's regular license is revoked, suspended, or otherwise terminated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of October 1991. DANIEL MANRY 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 23rd day of October 1991.
