The Issue The issues in this case are as follows: (1) whether Petitioner has standing to request a formal hearing in this case; and, if so, (2) whether Respondent is in violation of Section 120.54(1), Florida Statutes, for failure to comply with rulemaking requirements with respect to its statements and policies regarding the analysis and approval of the solutions and/or sources of solutions used to test the accuracy of evidentiary breath test instruments utilized in the Implied Consent Program; and (3) whether Rules 11D-8.002(1) and 11D- 8.006(2), Florida Administrative Code, and FDLE/ATP Form 16, which is incorporated by reference, constitute invalid exercises of delegated legislative authority
Findings Of Fact In Florida, it is unlawful to drive or to be in actual physical control of any motor vehicle while under the influence of alcohol beverages when affected to the extent that the person's normal faculties are impaired. Section 316.193(1)(a), Florida Statutes. A person is presumed guilty of driving under the influence (DUI) if the person has a breath alcohol level of 0.08 or more grams of alcohol per 210 liters of breath (g/210L). Section 316.193(1)(c), Florida Statutes. Any person who accepts the privilege of operating a motor vehicle within Florida is deemed to have given consent to submit to a breath test for the purpose of determining the alcohol content of his or her breath if lawfully arrested for DUI. Failure to do so results in the suspension of a person's driver's license and the failure to consent is admissible into evidence in any criminal proceeding. Section 316.1932(1)(a), Florida Statutes. Tests determining the weight of alcohol in a person's breath must be administered in accordance with FDLE's rules. Section 316.1932(1)(f), Florida Statutes. Breath test results are considered valid if performed substantially according to methods approved by FDLE. Section 316.1932(1)(b)(2), Florida Statutes. The results of breath tests administered in accordance with Chapter 316, Florida Statutes, are admissible in any civil or criminal proceeding arising out of acts alleged to have been committed by any person while driving under the influence of alcohol. Section 316.1934(2), Florida Statutes. The Florida Legislature has established certain presumptions and incremental penalties, which are dependent upon the results of breath-alcohol tests administered pursuant to Chapter 316, Florida Statutes. A breath-alcohol level in excess of 0.08 g/210L or higher 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, a person who has a breath-alcohol level of 0.08 or higher is guilty of DUI. Sections 316.1934(2)(c) and 316.193(1)(c), Florida Statutes. A breath-alcohol level of 0.05 g/210L or less creates a presumption that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties ere impaired. Section 316.1934(2)(a), Florida Statutes. If a breath-alcohol level is in excess of 0.05 but less than 0.08, no presumption arises; however, the level 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. Section 316.1934(2)(b), Florida Statutes. Persons with breath-alcohol tests of 0.20 g/210L or higher are subject to greater fines and terms of imprisonment than persons with breath-alcohol tests of 0.08 g/210L. Section 316.193(4), Florida Statutes. The penalties for being found guilty of the offense of DUI are set forth in Section 316.193, Florida Statutes. These penalties include fines of $250 to $5,000, terms of imprisonment from six months to one year, and terms of probation and the performance of public service or community work projects. The driver's license of a person who is arrested for a violation of Section 316.193, Florida Statutes, or a person who has refused to submit to a breath test, is suspended, pursuant to Section 316.2615, Florida Statutes. FDLE has adopted Chapter 11D-8, Florida Administrative Code, to implement the statutory Implied Consent Program. The purpose of these rules, in part, is to establish procedures, techniques, approved methods, criteria, and standards to ensure the accuracy and reliability of the evidential breath-testing instruments utilized to test the alcohol content of the breath of persons suspected or charged with DUI. To that extent, FDLE adopted rules specifying the method of breath-testing (infrared), the specific machine approved for evidential use (CMI, Inc. Intoxilyzer 5000 Series), and the criteria by which other manufacturers could receive approval for a different type or model instrument for use in Florida. Rule 11D-8.003, Florida Administrative Code. In order to ensure that individual breath- test results are reliable and accurate, FDLE established rules requiring that each machine be inspected when initially received, when moved to a different agency, and on an annual and a monthly basis. Rules 11D-8.004 and 11D-8.006(1), Florida Administrative Code. An FDLE inspector conducts the annual inspections of the breath-testing machines. A local law enforcement inspector conducts the monthly inspections. In each instance, a simulator solution is used to replicate a human's breath at each of the three statutorily specified alcohol concentrations--0.05 g/210L, 0.08 g/210L, and 0.20 g/210L. The instrument is deemed accurate and reliable, thus remaining in service, if the inspection results fall within the ranges described in Rule 11D-8.002(1). Florida Administrative Code. The ranges set forth in the rule are discussed below. Petitioner resides in Florida and currently possesses a valid Florida driver's license. He typically drives in the state for both personal and business uses. On February 17, 1998, a police officer stopped Petitioner while he was operating a motor vehicle. Petitioner was arrested and, as a result of that arrest, was administered a breath test to determine the amount of alcohol on his breath. Petitioner provided two breath samples indicating a breath- alcohol level of 0.09 g/210L for each sample. Petitioner was charged with the offense of DUI and required to give a cash appearance bond. As a result of his DUI charge, Petitioner's driver's license was administratively suspended for six months. Petitioner did not appear at the administrative hearing on his suspension, and has no knowledge of the arguments made on his behalf for the return of his license. Petitioner received his license back on August 19, 1998. He pled not guilty to the charge of DUI and is currently awaiting his criminal trial on that charge. Petitioner is aware of or believes the following: (1) his breath-test results are a matter of public record; (2) the results of his test may be used against him in a civil suit; (3) the results of his test may be used against him in his upcoming criminal trial for DUI; (4) if he is found guilty of DUI, he could be subject to a fine, probation, and a loss of his driver's license for a period of six months to a year; (5) he will not be able to haul his hotdog cart to work if his license is suspended; (6) he is not guilty and the results of his breath tests are not right. Officer Kenneth Guthrie is employed by the Jacksonville Sheriff's Office as a correctional officer. He has been a certified breath-test operator for approximately two years. Officer Guthrie follows FDLE/ATP Form 23, Operational Procedures Checklist, when he performs a breath test on a subject. He has followed that procedure for every individual that he has tested. Officer Guthrie performed a breath test on Petitioner after he was arrested on February 17, 1998. Officer Guthrie used the Intoxilyzer 5000 Series instrument, serial number 66-002726, to perform this test. Officer Guthrie completed steps one through twelve of the checklist when he performed Petitioner's test. Officer Robert Thomason has been employed by the Jacksonville Sheriff's Office for eight years. Officer Thomason is certified by FDLE to perform the monthly inspections on the Intoxilyzer 5000 Series instruments in the custody of the Jacksonville Sheriff's Office. In performing the monthly inspections, Officer Thomason follows a step-by-step procedure set forth in FDLE/ATP Form 16. The form is adopted by reference in Rule 11D-8.003(7), Florida Administrative Code. Its use is required in Rules 11D-8.004(1) and 11D-8.006(1), Florida Administrative Code. The form requires Officer Thomason to utilize an "approved alcohol reference solution" (ARS) in making his inspections. The form does not define an "approved ARS." Officer Thomason is required to perform five series of tests on each Intoxilyzer 5000 Series instrument using a simulator: (1) one set of tests with distilled water only; (2) one set of tests with three millimeters of acetone; and (3) three sets of tests with ARS at 0.05, 0.08, 0.20 g/210L. Officer Thomason is required to perform three tests with each solution. If any one of the tests using any level of ARS is outside of the ranges set forth in Rule 11D-8.002(1), Florida Administrative Code, Officer Thomason removes the instrument from service. The Jacksonville Sheriff's Office purchases ARS from Guth Laboratories (Guth). Guth produces ARS in lots of 250 gallons and dispenses it in individual bottles containing 500 milliliters. FDLE approves each lot of ARS using the methods and procedures discussed below. Officer Thomason does not perform any test on the ARS prior to its use in the simulator. He does not usually receive anything in writing from FDLE indicating that it has approved a lot of ARS. However, Officer Thomason may request a Certificate of Assurance (COA), discussed below, from FDLE indicating that it has approved the ARS. Typically, the Intoxilyzer 5000 Series instrument is calibrated by a manufacturer's authorized repair facility. FDLE's inspectors are trained to calibrate the instruments, but do not routinely perform that duty. In order to comply with Rule 11D-8.002(1), Florida Administrative Code, the monthly tests of the Intoxilyzer 5000 Series instruments must yield results, which fall within acceptable ranges. "Acceptable range" is defined in the rule as follows: Acceptable Range -- Shall mean the observed values must fall within the following ranges at each alcohol target concentration: 0.05 g/210L range is 0.045 -- 0.055 g/210L; 0.08 g/210L range is 0.075 -- 0.085 g/210L; 0.20 g/210L range is 0.190 -- 0.210 g/210L. Rule 11D-8.002(1), Florida Administrative Code. Officer Thomason performed an agency inspection of the Intoxilyzer 5000 Series instrument at issue here, on February 1, 1998. He used ARS from lot numbers 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, 0.20 g/210L respectively. All of the results of the monthly tests that Officer Thomason performed on the subject instrument on February 1, 1998, were within the requirements of Rules 11D-8.002(1) and 11D-8.006, Florida Administrative Code, to keep the instrument in service. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.049, 0.048, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.081, 0.80, and 0.081 g/210L. The results of the test performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.197, 0.197, and 0.194 g/210L. Officer Thomason performed a second agency inspection of the subject Intoxilyzer 5000 Series instrument on February 27, 1998. Once again he used ARS from lots 97180, 97190, and 97200 to perform the tests at 0.05, 0.08, and 0.20 g/210L respectively. The results of these tests performed with ARS to create a 0.05 g/210L simulated breath-alcohol level were 0.050, 0.049, and 0.048 g/210L. The results of the tests performed with ARS to create a 0.08 g/210L simulated breath-alcohol level were 0.079, 0.080, and 0.078 g/210L. The results of these tests performed with ARS to create a 0.20 g/210L simulated breath-alcohol level were 0.198, 0.200, and 0.198 g/210L. When Officer Thomason prepares a simulator with ARS, he pours the ARS from its bottle into a 500-milliliter flask, then pours the contents of the flask into the jar of the simulator. He does not pour the entire bottle into the flask; there is usually a small amount of ARS left in the bottle. In order to calibrate or verify the calibration of an Intoxilyzer 5000 series instrument, the operator must provide a vapor to the instrument to simulate human breath, which includes moisture and an alcohol content. A simulator is a device designed to simulate a person's breath, providing a sample of air to the instrument, which contains the alcohol vapor of a known concentration. The operator places a solution of alcohol into the simulator device. ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature. The ARS is used to assure the accuracy, precision, and reliability of the Intoxilyzer 5000 Series instrument. The simulator device heats the ARS to a temperature of 34 degrees centigrade, plus or minus ("+/-") two degrees. Air is pumped into the bottom of the simulator and bubbled through the ARS, collecting as a vapor above the water. Back pressure is applied to the simulator and the vapor travels from the simulator to the Intoxilyzer 5000 Series instrument, which measures the alcohol content. An ARS containing 0.0605 grams of alcohol per deciliter of water (g/dL) replicates a breath-alcohol level of 0.05 g/210L. An ARS containing 0.0968 g/dL replicates a breath-alcohol level of 0.08 g/210L. An ARS containing 0.2420 g/dL replicates a breath-alcohol level of 0.20 g/210L. The conversion factor for converting g/dL to g/210L is 1.21. For example, 0.0605 g/dL divided by 1.21 equals 0.05 g/210L. Alcohol is completely miscible in water; it mixes in all proportions. When a small amount of ethanol is mixed with a large amount of water, it is readily distributed and becomes homogeneous within a very short time. Once the ARS is mixed, it will stay miscible until some heroic measure is taken to separate the alcohol and water. Alcohol stock solution is concentrated alcohol solution, which must be mixed with a known quantity of water to create ARS. If FDLE did not provide law enforcement agencies with an approved ARS source, it could produce and provide the local agencies with stock solution. As a matter of practice since January of 1997, FDLE no longer prepares alcohol stock solution or provides it to the local agencies. Instead, FDLE arranges for the supply and purchase by all law enforcement agencies of a premixed ARS from an approved source. "Source" means the entity from which the agencies must order ARS. The term "approved source" is not defined in Rule 11D-8.006(2), Florida Administrative Code. FDLE's criteria and standards for the selection of the source include the following: (1) the size of the ARS lots available; (2) standards related to the entity's facilities, personnel, product, manufacturing protocol, quality assurance/control practices, and customer relations with existing accounts; and (3) whether the entity is regulated by the Food and Drug Administration. None of these criteria and standards are included in Rule 11D-8.0006(2), Florida Administrative Code. Selection of the source is an important part of the Alcohol Testing Program (ATP). FDLE is responsible for maintaining the ATP within the state of Florida. Thomas Wood has been employed with FDLE in the ATP since November of 1993. One of Mr. Wood's duties is to determine the known amount of ethanol in the ARS. As stated above, FDLE went through a process to select a source for providing ARS to the local law enforcement agencies. FDLE gave Mr. Wood the responsibility to evaluate potential vendors, and to recommend selection of a vendor for ARS. Based on Mr. Wood's recommendation, FDLE contracted with Guth as the sole source of ARS for the state of Florida. Guth, which is located in Pennsylvania, does not manufacture ARS, but acts as the distributor or vender for ARS manufactured by Steiffel Research Institute, Inc. (Steiffel), which is located in New York. Mr. Wood's selection of Guth as the source was based primarily upon the qualifications of Steiffel. The contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. FDLE has the right to reject any lot that does not meet the contract specifications. If Guth consistently provided lots of ARS that FDLE rejected, the agency could contract with another source. Prior to any lot of ARS being distributed for use by the local agencies, Mr. Wood analyzes each lot to determine if it is in compliance with the department's specifications, using specified procedures, criteria, and standards. Guth supplies the samples for this pre-distribution analysis, ten bottles from each lot. After each lot is distributed to law enforcement agencies, Mr. Wood acquires ten bottles of each lot from various local law enforcement agencies for a post-distribution analysis, using the same procedures, criteria, and standards as the pre- distribution analysis. Each ARS sample in the pre-distribution analysis and the post distribution analysis is analyzed using gas chromatography ("GC"). The ARS used to test the accuracy, precision and reliability of breath-testing instruments in Florida is one of the foundations of the ATP. It is extremely important for the ARS to replicate the target values of 0.05, 0.08, and 0.20 g/210L. The accuracy of the breath-testing machine depends in large part upon the accuracy of the ARS. FDLE has no promulgated rule setting forth the procedures, criteria or standards utilized by FDLE for the approval or rejection of ARS. Companies other than Guth, who wish to become a source of ARS for Florida, would have to contact FDLE to determine the procedures, standards and criteria, which Florida uses to approve ARS. These procedures, standards and criteria are set forth in COAs created and utilized by Mr. Wood. The COAs detail the methodology that he uses to analyze sample bottles from each new lot of ARS. The COAs set forth the criteria, which the samples of ARS must meet before Mr. Wood will approve a lot for use in Florida. The COAs set forth acceptable ranges of alcohol content within which the samples must fall before Mr. Wood approves a lot of ARS. They summarize the data that Mr. Wood collects when he performs a GC analysis of a lot of ARS. The COAs describe FDLE's practice requirement regarding the criteria and specifications for accepting or rejecting each ARS lot. FDLE has followed this practice without deviation since the ATP started in January of 1997. As noted above, ARS is defined in Rule 11D-8.002(8), Florida Administrative Code, as a "mixture of a known mass of ethanol and a known volume of water, the headspace above which will have a known ethanol concentration at a specified temperature." There is no way to determine what the word "known" means in that definition without reference to the COAs, particularly the ranges of acceptability described therein. The only way to determine the meaning of "known" is to use the process described in the COAs. In fact, the criteria in the COAs are part of the definition of ARS contained in Rule 11D-8.002(8), Florida Administrative Code. Thus, the COAs are very important and necessary in order to determine the meaning of the rule. FDLE approves ARS to replicate a 0.05 g/210L breath- alcohol level if the average test results of that solution fall between 0.0565 g/dL and 0.0645 g/dL, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0605 g/dL is +/- 0.004 g/dL, which yields a 6.6% variation or percentage of error. FDLE approves ARS to replicate a 0.08 g/210L breath- alcohol level if the average test results of that solution fall between 0.0928 g/dL and 0.1008 g/dL of ethanol, a range of 0.008 g/dL. The allowed variation around the target ARS concentration of 0.0968 g/dL is +/- 0.004 g/dL, which yields a 4.1% variation or percentage of error. FDLE approves ARS to replicate a 0.20 g/210L breath- alcohol level if the average test results of that solution fall between 0.2320 g/dL and 0.2520 g/dL of ethanol, a range of 0.020 g/dL. The allowed variation around the target ARS concentration of 0.2420 g/dL is +/- 0.010 g/dL, which yields a 4.1% variation or percentage of error. Mr. Wood set the percentage of error for FDLE to accept or reject lots of ARS based on scientifically accepted practice. He set a range that would provide accurate, precise, and reliable results for breath testing in the state of Florida. As stated above, the contract between FDLE and Guth requires Guth to provide lots of ARS that are within approximately 3% of the target value for each ARS ethanol level. The selection range in Guth's contract specification is less than FDLE's selection range to better assure that the solution will remain within the department's approval range. There is a difference of opinion within the scientific community regarding the acceptable percentage of error for the alcohol content of ARS that is used to inspect breath-testing machines for accuracy. The National Safety Council, Committee on Alcohol and Other Drugs, recommends the use of a percentage of error of 2%. Dr. Bruce Goldberger, an expert in forensic toxicology, recommends setting the percentage of error for ARS at 3%. Mr. Wood acknowledges that he could have set the percentage of error for ARS provided by Guth and approved by FDLE at 2% or 3%, or whatever he felt was appropriate. If the allowable range of error is too large, and a machine is inspected with an ARS that has an alcohol content at the extreme low-end of that range, an improperly calibrated machine might be approved for use. Nevertheless, the percentages of error that Mr. Wood set for Guth (3%) and FDLE (6.6% and 4.1%) are scientifically reasonable and will not have a significant impact on the validity and reliability of breath-test results. The COAs require ten bottles of a lot of ARS to conduct a GC analysis. Ten bottles are necessary to get a proper sample representation and to permit the rejection of some bottles without invalidating the test results. In preparation for GC analysis, three sub-samples from each simulator solution bottle must be combined in a GC vial. Three vials must be prepared from each ARS bottle. According to the COAs, the GC vial ethanol concentrations from each analyzed simulator solution bottle are averaged to yield an estimated concentration for each bottle. The sample bottles received and the data obtained must meet the following criteria for a lot of simulator solution to be approved for use in Florida: (1) Eight or more of the ten simulator solution bottles received must be suitable for analysis; (2) Two of the three GC autosampler vials must provide an analytical result for each bottle; (3) The difference between any two analytical results for a bottle must be 0.0040g/dL or less for 0.050 and 0.080 g/210L solutions and 0.0100 g/dL or less for 0.20 g/210L solution; (4) Six or more of the analyzed simulator solution bottles must provide an average result; and (5) All average results must fall on or between the ranges set forth above in paragraphs 43-45. When Mr. Wood performs a pre- or post-distribution analysis, he uses a calibrator solution to calibrate the GC. He performs this calibration by injecting a known amount of alcohol into the GC and noting the response. He then injects a different known amount of alcohol into the GC and notes the response. Finally, he constructs a calibration curve, drawing a line through the curve to determine the amount of alcohol for an unknown concentration. To calibrate the GC, Mr. Wood uses reliable known alcohol concentrations from commercial vendors. The solutions meet the standards of the National Institute of Standards and Technology (NIST). The scientific community considers these solutions to be highly accurate. The GC analysis is a very specific, very accurate, precise test to certain limits within a relatively small standard deviation. This means that a GC analysis of 30 vials of an ARS solution will result in slightly different readings of the amount of ethanol content in each vial, even though the actual ethanol content in each vial is the same. Analytical variation is built into the GC measurement process. The GC's ability to make fine distinctions in the amount of alcohol, together with its sensitivity to other testing variables or errors accounts for the range of variation. In a GC analysis, the exact or actual concentration of alcohol in ARS depends upon the limits that are established to make that determination. Determining a mean, which is an average value for a series of tests, and calculating the standard deviation sets the limits. It is possible in the scientific community to obtain exact concentrations of alcohol in ARS. NIST has the ability to make such determinations. The extreme measures taken by NIST cost tens of thousands of dollars. NIST uses a multitude of techniques that are not commonly available. Such extreme measures are not necessary to verify the alcohol content of ARS used to inspect the Intoxilyzer 5000 Series instrument. When the Intoxilyzer 5000 Series instruments are initially placed in service, or subjected to major maintenance, they are calibrated using NIST reference solutions. The purpose of ARS is to verify the calibration of the machines. ARS is not used to calibrate them. The Intoxilyzer 5000 Series instrument has a limit on its ability to measure the alcohol content of a person's breath at any given time. It is not intended to measure exactly a person's breath-alcohol concentration at a specific time; the machine measures a person's breath-alcohol level within a range. In order to ensure the validity of a breath test, Rule 11D- 8.002(16), Florida Administrative Code, states as follows: (16) Breath Alcohol Test -- Shall mean, the analyses of a minimum of two samples of breath collected within fifteen minutes, and the results reported as the alcohol level based upon grams of alcohol per 210 liters of breath. To be acceptable as a valid breath test, the two results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. If the results of the first and second sample are more than +/- 0.020 g/210L apart, a third sample shall be analyzed. To be acceptable as a valid breath test, any two of three results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. In the event the person tested refuses or fails to provide the required number of valid breath samples, than this event shall constitute a refusal. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level. The manufacturer sets the limits of the Intoxilyzer 5000 Series instrument as accurate to +/- 0.005 of a breath- alcohol concentration or 5% of the breath-alcohol concentration, whichever is greater. The manufacturer's specifications are consistent with the limits set by the National Highway Traffic Safety Administration (NHTSA). NHTSA is the federal agency that approves evidential breath-test devices. NHTSA publishes its standards and a list of approved devices in the Federal Register. The definition of "Acceptable Range" set forth in Rule 11D8.002(1), Florida Administrative Code, coincides with the NHTSA standards. During the pre-distribution analysis of ARS lot number 97180, the target value was 0.0605 g/dL. The minimum average observation for any sample bottle was 0.0604 g/dL. The maximum average observation for any sample bottle was 0.0622 g/dL. The mean of the samples was 0.0612 g/dL. During the pre-distribution analysis of ARS lot 97190, the target value was 0.0968 g/dL. The minimum average observation for any sample bottle was 0.0965 g/dl. The maximum average observation for any sample bottle was 0.0980 g/dL. The mean of the samples was 0.0972 g/dL. The difference between the mean concentration and the target concentration of the samples of ARS lot 97190 is +0.0004 g/dL. If one divides 0.0004 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0041 g/dL, which is equivalent to a 0.41% variation from the target concentration. The difference between the average minimum observed concentration and the target concentration of the samples of ARS lot 97190 is 0.0003 g/dL. If one divides 0.0003 g/dL by the target value of 0.0968 g/dL, the quotient is 0.0031 g/dL, which is equivalent to a 0.31% variation from the target concentration. During the pre-distribution analysis of ARS lot 97200, the target value was 0.2420 g/dL. The minimum average observation for any sample bottle was 0.2420 g/dL. The maximum average observation for any sample bottle was 0.2453 g/dL. The mean of the samples was 0.2438 g/dL. If the value of an ARS used to perform a monthly inspection is higher than the target value, the results of the Intoxilyzer 5000 Series instrument could be less than the range of accuracy of the instrument. The sampling methodology set forth in the COAs provides for the averaging of sample results. An individual sample could result in a GC measurement of alcohol content below the lowest average value of the range established by the COAs. For example, the COA for ARS with an alcohol content of 0.08 g/210L allows a lot to be approved if one or more of the individual samples measure as low as 0.0908 g/dL on the GC. This is true even though the lowest average limit of the range is stated as 0.0928 g/dL. Dividing 0.0908 g/dL by the conversion factor of 1.21 results in a quotient equivalent to 0.075g/210L. If a machine is inspected with ARS containing a 0.075 g/210L concentration of ARS and if the machine provides a result of 0.085 g/210L, the machine is deemed acceptable and reliable under the provisions of Rule 11D-8.002(1), Florida Administrative Code. If a person with an actual breath-alcohol content of 0.070 g/210L was tested on that machine, his or her breath-test result would be 0.08 g/210L. In theory, this same logic would apply to all three ARS alcohol concentration levels. However, there is no evidence that a person with an actual breath-alcohol of 0.070 g/210L ever produced a breath-test result of 0.08 g/210L under these circumstances. There is only a very remote possibility that this type of scenario could occur.1 In fact, Petitioner produced a breath-alcohol reading of 0.09 g/210L; therefore, the actual content of alcohol in his breath could not have been lower than 0.08 g/210L. Absent the effects of averaging the samples described above, an ARS meeting the lowest value of the acceptable ranges set forth in the COA, when used on a high-reading machine, could produce results which exceed the ranges for machine accuracy set forth in Rule 11D-8.002(1), Florida Administrative Code. For example, the lowest stated value of the acceptable range in the COA for 0.08 g/210L simulator solution is 0.0928 g/dL, which equates to 0.077 g/210L. If that ARS produces a result of 0.085 g/210L on a high reading machine, there is a variation of 0.008 g/210L, while the machine range rule allows a variation of only a plus or minus 0.005 g/210L. To that extent, the standards and criteria set forth in the COA could produce results that exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. Under these circumstances, a person with an actual breath-alcohol level of 0.077 g/210L could receive a breath-test result of 0.085 g/210L. Such an occurrence is only a remote possibility. There is no evidence that an ARS has been responsible for producing such results.2 Moreover, Petitioner's breath-test result of 0.09 g/210L under these facts would mean that his actual breath-alcohol level was 0.082 g/210L. The facts of this case are clearly different from the facts set forth in paragraphs 68 and 69. Under no circumstances is Petitioner the victim of a worst case scenario like the ones described above. There is no evidence that the machine used to test his breath-alcohol level was improperly calibrated, yielding breath-alcohol readings of 0.08 g/210L or higher when his actual breath-alcohol was below that level. There is no evidence that the ARS used to inspect that machine had an alcohol content at a sufficiently low level of the acceptable range for 0.08 g/210L simulator solution to result in a reading of 0.08 g/210L or higher when the actual breath-alcohol was below that level. The highest Intoxilyzer 5000 Series instrument reading using ARS lots 97180, 97190, and 97200, and therefore in the best light of the Petitioner, were 0.050, 0.81, and 0.200 g/210L respectively. The mean values of the ARS were 0.0612, 0.0972, and 0.2438 g/dL, respectively. Using the mean values of the ARS, the highest actual machine readings, and a recorded breath-test result of 0.09 g/210L, the actual breath-alcohol level to achieve that result would be 0.091, 0.089, and 0.091 g/210L respectively. Using the minimum observed average levels of the ARS at each level and the highest actual machine readings, the results are clear. The minimum observed average values of the ARS were 0.0604, 0.0965, and 0.2429 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.090, 0.089, and 0.090 g/210L. One does not arrive at a different result using the lowest individual sample values at each level and the highest actual machine readings. The lowest individual sample values of ARS were 0.0602, 0.0960, and 0.2421 g/dL. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.0898, 0.0883, and 0.0901 g/210L. The result is the same when one uses the lowest individual sample values at each level (0.0602, 0.0960, and 0.2421 g/dL) and the highest possible machine readings (0.055, 0.085, and 0.210 g/210L. With a recorded breath-test result of 0.090 g/210L, the actual breath-alcohol level to achieve that result would be 0.084, 0.0843, and 0.0809 g/210L. Similarly, the facts of this case do not indicate that the GC analysis of ARS lot 97190 yielded results for 0.08 g/210L simulator solution which exceed the allowable ranges set forth in Rule 11D-8.002(1), Florida Administrative Code. According to the COA, the lowest average value for that solution is 0.0928 g/dL, which converts to 0.0767 g/210L. The highest actual machine reading, and therefore in the best light of Petitioner, was 0.081 g/210L. The difference between 0.0767 g/210L and 0.081 g/210L is 0.0043 g/210L, which is well within the rule's allowable range of .005 g/210L. The same holds true when one uses the value for the lowest individual sample in ARS lot 97190 and the highest actual machine reading. The lowest individual sample was 0.0960 g/dL, which converts to 0.0793 g/210L. The highest actual machine reading was 0.081 g/210. The difference between the two is 0.0017 g/210L, which is less than 0.005 g/210L. The results are no different when the same calculations are performed for ARS lots 97180 and 97200.
The Issue The issues in this case are whether Respondent violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1 and Florida Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed; and further, what discipline should be imposed for Respondent's admitted violation of section 1012.795(1)(f).
Findings Of Fact Ms. Johnson holds Florida Educator's Certificate No. 886672, covering the area of mathematics (grades six to 12), which is valid through June 30, 2015. At all times material to the charges in this proceeding, Ms. Johnson was employed as a mathematics teacher at Heron Creek Middle School (Heron Creek) in the Sarasota County School District (School District). On October 20, 2007, Ms. Johnson was arrested and charged with committing the crimes of trespass after warning, resisting arrest with violence, and aggravated assault on a law enforcement officer. Ms. Johnson subsequently pled guilty to resisting arrest with violence, a third-degree felony, and trespassing after warning, a first-degree misdemeanor. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of 18 months. Ms. Johnson met the conditions for community service hours, payment of fines and court costs, and other probation terms faster than required, and as a result, was released early from probation. By way of background leading to this incident, Ms. Johnson testified that she was in a car accident in 2004, from which she had lingering issues with her ankles and ribs, and she also believed she had nerve damage. She testified that she went to as many as 20 doctors in the aftermath of the 2004 car accident. She saw numerous doctors to get several opinions when she was not satisfied with the outcome, particularly with respect to her belief that she had nerve damage. On the day of Ms. Johnson's arrest in 2007, she testified that she went to a walk-in clinic because of her nerve damage issue and that the physician she saw at the walk-in clinic prescribed Oxycodone. According to Ms. Johnson, she had never taken Oxycodone before, and she claimed that the physician did not tell her about the drug's potential side effects. Ms. Johnson's testimony is not credible in this regard; by this time, Ms. Johnson was quite experienced with a variety of physicians and had explained how she questioned their opinions and sought second opinions, particularly with regard to her belief that she had nerve damage. It is hard to believe that she would seek out nerve damage treatment at a walk-in clinic or that she would accept a new pain medication without at least asking questions about it to the extent information was not volunteered by the physician. Ms. Johnson put into evidence a copy of the drug store's prescription purchase summary to show that her prescription for Oxycodone was filled that day, October 20, 2007. Readily apparent from a quick glance at the summary information regarding the drug was the following phrase, deemed sufficiently important to highlight in all capital letters: "AVOID ALCOHOLIC BEVERAGES while taking this medicine." Thus, even if the walk-in clinic physician did not adequately brief Respondent regarding the pain medication being prescribed, the pharmacy that filled the prescription provided the basic information, including the specific warning to avoid alcohol when taking the drug. Despite this warning, Ms. Johnson admitted that in addition to taking Oxycodone for the first time on October 20, 2007, she also had a "few beers." At the time of the 2007 incident, Ms. Johnson apparently had just broken up with a boyfriend. Ms. Johnson had been on her ex-boyfriend's property three days earlier, and her ex-boyfriend called the police. The police issued a trespass "warning" to Ms. Johnson, advising her that she was trespassing on her ex-boyfriend's property and that if she returned to the property, she would be arrested for trespass after warning. Ms. Johnson claimed that she talked to her ex-boyfriend by telephone on October 20, 2007, and that he had invited her over to return some of his belongings and to pick up items of hers that were in his possession. Ms. Johnson claims that her ex-boyfriend told her that the trespass warning had been lifted. Other than Ms. Johnson's own testimony recounting what her ex-boyfriend said, no evidence was presented to corroborate this hearsay testimony such that it could provide the basis for a finding of fact. Ms. Johnson did not say when on October 20, 2007, she claims to have spoken with her ex-boyfriend--before or after she went to the walk-in clinic, then to a drugstore to get the prescription filled, then took the Oxycodone and drank a few beers. Ms. Johnson's explanation as to why she thought she could go to her ex-boyfriend's residence, despite having been warned by a law enforcement officer three days earlier not to go there, was neither credible, nor sufficient, to justify her actions. Ms. Johnson testified that in her impaired state, she went alone to her ex-boyfriend's place, presumably driving a vehicle to get there. Ms. Johnson testified that she was shocked, panicked, and angry when her ex-boyfriend called the police, and she ended up being arrested. Ms. Johnson admitted that her recollection of the incident is spotty: There was this cop there. I was on the medication that was affecting me. I didn't – I was not thinking clearly at all . . . It was just kind of awkward. I was on medications and it was something that when I panicked I don't recall all of the – everything that I said to [the officer]. According to the officer's probable cause affidavit, Ms. Johnson was belligerent, refusing to give the officer identification upon request, and struggling with him when he attempted to take her into custody. The officer arrested Ms. Johnson, handcuffed her, and put her in the back seat of the patrol car. Ms. Johnson, however, was far from subdued. Somehow, she managed to get out of the handcuffs and banged on the patrol car window. The officer opened the car door to see what was going on, and Ms. Johnson jumped out of the car and threw a high-heeled shoe at the officer. While Ms. Johnson claims she was not actually aiming at the officer, she admitted that she was mad and threw the shoe out of anger. She was ultimately handcuffed again, although she continued to struggle. Ms. Johnson was taken to the police station where she was booked and charged with more than just trespass, having elevated the incident from a misdemeanor situation to one involving felony charges because of her outbursts. There is not a great deal of evidence in the record regarding Ms. Johnson's employment history with the School District. The evidence that is of record demonstrates that Ms. Johnson was in school herself until 2002, when she received her master's degree. She was employed later that same year by the School District. Dr. George Kenney, principal at a high school across the street from Heron Creek, was the one who hired Ms. Johnson. She worked for Dr. Kenney for two years, teaching middle school classes that were being held at the high school site while Heron Creek was being built. As noted, Ms. Johnson was in a car accident in 2004. No specific evidence was offered with respect to Ms. Johnson's performance or attendance between 2004 and 2008, but Ms. Johnson testified generally that throughout this period, she had many medical issues, many encounters with physicians, pain, and treatment (including the Oxycodone prescription in October 2007). There is documentation in the record of problems that Ms. Johnson was having early on in the 2008-09 school year, with numerous incidents of being late or absent without following reporting requirements. The documentation was provided by the middle school's new principal that year, Dr. Bill Bolander. The numerous incidents were of sufficient concern that Ms. Johnson was given notice of a Weingarten meeting2/; Ms. Johnson was absent on the day of the scheduled meeting, and so the meeting was rescheduled for September 26, 2008. On September 25, 2008, the day before the rescheduled Weingarten meeting, at approximately 8:30 a.m., before school started, Ms. Johnson went to the School District's administrative offices to obtain copies from her personnel file. The staff person who assisted Ms. Johnson called Heron Creek to report that she smelled alcohol on Ms. Johnson's breath. Meanwhile, Ms. Johnson went to Heron Creek and proceeded to her classroom. At 9:30 a.m., when middle school classes were about to begin, Dr. Bolander and Jean Thompson, assistant principal, went to Ms. Johnson's classroom. Rather than confront her in the classroom in front of the students, Dr. Bolander had Ms. Thompson go into the classroom to ask Ms. Johnson to step outside to speak with Dr. Bolander, while Ms. Thompson took over supervision of Ms. Johnson's class. Dr. Bolander spoke with Ms. Johnson briefly in the hall outside her classroom, and he noticed the smell of alcohol on Ms. Johnson's breath. He told Ms. Johnson that he had been informed about her suspected alcohol consumption and asked her to go with him to his office where they could speak privately. Back at his office, Dr. Bolander notified the School District's human resources department and was advised that another principal within the School District would come to Heron Creek to conduct an evaluation of Ms. Johnson. Dr. George Kenney, the high school principal across the street--the person who had hired Ms. Johnson and for whom she worked for two years--was asked by the School District to go to Heron Creek to evaluate a teacher. Dr. Kenney has received specialized training to evaluate individuals to determine whether there is a reasonable suspicion that an individual is under the influence of alcohol or drugs. Dr. Kenney went to Heron Creek, unaware of the identity of the teacher to be evaluated. Dr. Kenney went to Dr. Bolander's office where he was waiting with Ms. Johnson. Dr. Kenney explained to Ms. Johnson why he was there, and Ms. Johnson had no objection to Dr. Kenney performing the evaluation. Apparently the School District, likewise, had no objection to Dr. Kenney, despite the fact that he had made known he favored Ms. Johnson in the past by hiring her. While there were no formal written consents or agreements to the selection of the evaluator, the evidence clearly establishes that the parties mutually agreed to the choice of Dr. Kenney as the evaluator.3/ Dr. Kenney spent at least 30 minutes conducting a thorough evaluation of Ms. Johnson. He testified that he was concerned from the beginning about the signs of impairment. He noted the following indicators: slurred speech, bloodshot and glassy eyes, disheveled appearance, difficulty in organizing thoughts, and confused answers to reasonably straightforward questions. For example, Dr. Kenney testified that he asked Ms. Johnson about what her teaching assignment was--what she was teaching at that time. He also asked her what her lesson plans were for that day. Ms. Johnson was unable to focus and respond to these reasonable questions directed to a teacher at the start of a teaching day. Dr. Kenney could not confirm the smell of alcohol on Ms. Johnson's breath, but he testified that he would not expect to be able to smell alcohol on someone's breath because he has a very poor sense of smell. Thus, he focuses more keenly on the other indicators of alcohol consumption, because he knows he cannot rely on that one indicator. However, Dr. Bolander confirmed what had been reported to him by the School District staff in the human resources department: that as of the time period from 8:30 a.m to 9:30 a.m., the smell of alcohol was noticeable on Ms. Johnson's breath. Dr. Kenney's opinion at the conclusion of his evaluation was that there was a reasonable suspicion that Ms. Johnson was under the influence of alcohol and possibly drugs also. As such, Dr. Kenney requested that Respondent undergo reasonable suspicion alcohol and drug testing at a laboratory. Ms. Johnson did not object to the requested testing. To the contrary, she advised Dr. Kenney that she had no fear of being tested. Ms. Johnson testified that the reason she had no fear is because she "knew I wouldn't test positive to any of these--to any of their tests that they had." Ms. Thompson was asked to transport Ms. Johnson to a lab for a breathalyzer test for alcohol and a urine test for drugs. Ms. Thompson testified that upon opening Dr. Bolander's office door to get Ms. Johnson, she noticed a "definite smell" of alcohol released from that confined environment. Dr. Kenney left to return to his high school when Ms. Thompson came to collect Ms. Johnson at about 10:30 a.m. Ms. Thompson drove Ms. Johnson to a lab at Fawcett Memorial Hospital in Port Charlotte, Florida. At the lab, Ms. Johnson was first asked to submit to a breath test for the purpose of measuring alcohol level. The breath test was performed by Sheri Miller. Ms. Miller is a registered nurse and a certified breath test technician, who has performed at least 300 such breath tests since her initial certification in 2002. Before the test, Ms. Miller completed information on an Alcohol Testing Form, including Ms. Johnson's name and identification number (social security number) and the reason for the test to be performed--a reasonable suspicion test requested by an employer. Next, Ms. Miller had Ms. Johnson review the information for accuracy. Ms. Johnson signed a certification that she knew she was about to submit to alcohol testing and that the identifying information on the form was correct. To conduct the breath test, Ms. Miller used the Random Breath Testing Intoximeter, which has been approved by the U.S. Department of Transportation. Ms. Miller instructed Ms. Johnson on how to blow into the mouthpiece to give a breath sample, and Ms. Johnson did so. The results generated by the Intoximeter show that Ms. Johnson's breath sample, time-recorded at 11:28 a.m., yielded an alcohol content measurement of .074, which is a positive reading. Anything over .02 is considered positive for alcohol content, and by protocol, the lab automatically does a second breath test 15 minutes after the first test, when the first test results in a positive reading. A second breath test was performed on Ms. Johnson at 11:45 a.m. The results were still well above the positive mark, at .063. After the two tests, Ms. Miller performed a calibration check on the machine to verify its accuracy. The breath test lab report included Ms. Miller's confirmation that she performed this check: "Cal. Check okay." Finally, Ms. Miller had Ms. Johnson review the results and sign the form to acknowledge the test results shown on the form, and that because the test results were positive (.02 or higher), she was not to drive, perform safety-sensitive duties, or operate heavy machinery. After completion of the breath test, Ms. Johnson also provided a urine sample to be tested for drug content. The lab did not perform the urinalysis on site. Instead, the lab performed the sample collection function, but then the samples were transported to a lab facility in Pennsylvania for testing and issuance of a report. Ultimately, Ms. Johnson learned that the results from her urine drug panel test were negative. However, there was a discrepancy on the report. Although the report identified the donor name as Ms. Johnson, the donor ID number did not match Ms. Johnson's social security number.4/ Ms. Johnson testified that she knew the results were wrong, because the drug panel test was negative. According to Ms. Johnson, she should have tested positive for opiates, because she was taking a prescription opiate. Ms. Johnson did not elaborate, nor did she explain the inconsistency of this statement with her testimony that she had no fear of being tested for alcohol and drugs because she knew she would not test positive. Ms. Johnson denied, at the time in 2008 and at the final hearing, that she had consumed a substantial amount of alcohol before going to the School District's administrative offices on September 25, 2008; she claimed she only had one glass of wine at 8:00 p.m., the previous evening. However, she had no other explanation for the positive breath test results, the first of which was a full three hours after a staff person first noticed the smell of alcohol on Ms. Johnson's breath. Likewise, Ms. Johnson did not refute or otherwise contradict Dr. Kenney's description of her physical and mental state that morning--slurred speech, bloodshot and glassy eyes, disheveled appearance, inability to organize thoughts, or respond lucidly to reasonable questions. Ms. Johnson attempted to blame the breath test results on the fact that she had visited another walk-in clinic the previous day because of broken ribs and a reaction to a bug bite, and the physician she saw that day gave her a shot of some form of steroids for the bug bite. No competent evidence or expert testimony was offered to prove the suggestion that somehow a steroid shot would result in a positive alcohol breath test the next day, much less that it would cause slurred speech, confusion, inability to organize thoughts, glassy and bloodshot eyes, or a disheveled appearance. Ms. Johnson's denial of substantial alcohol consumption is rejected as not credible. Instead the clear and convincing evidence established that Ms. Johnson consumed enough alcohol at some point before going to the School District's administrative offices on the morning of September 25, 2008, to make the alcohol odor on her breath noticeable, to cause the other indicators of impairment found by Dr. Kenney in support of his reasonable suspicion determination, and to result in two consecutive positive breath tests more than three hours later. As in 2007, Ms. Johnson, in an impaired state, drove to the School District's administrative offices, then drove to Heron Creek and proceeded to her classroom, fully intending to teach the gathering middle-school students. As in 2007, it was fortuitous that Ms. Johnson did not cause serious injury or worse, to herself or others, because of her driving under the influence. And it was fortuitous that Ms. Johnson's time in the classroom with her students on September 25, 2008, was brief. Dr. Bolander testified that because of the September 25, 2008, incident, plus Ms. Johnson's attendance and reporting issues that were significant in the beginning of the 2008-09 school year, prior to the incident, and continued after the incident, he recommended that her employment be terminated. In lieu of termination, Ms. Johnson agreed to enter into a "Last Chance Agreement" with the School District, whereby she was suspended for five days without pay. Thereafter, she took FMLA leave for 12 weeks, during which she went through intensive physical therapy and alternative pain management therapy to reduce her use of pain medications. She returned to Heron Creek to teach for the final nine weeks of the 2008-09 school year. Dr. Bolander credited Ms. Johnson with an excellent attendance record during this nine-week period. He also indicated that her performance as a teacher was good during this time. A single performance evaluation for Ms. Johnson was offered into evidence, completed halfway through this nine-week period. Ms. Johnson was deemed "proficient" in all categories. While Ms. Johnson benefited from the leave, in that she was able to undergo intensive therapy that she said would not have been possible while she was teaching, it would not be fair to conclude, as Respondent suggests, that her problems, including the incidents underlying the charges at issue here, should be attributed to the School District for failing to recognize her need for FMLA leave at some point before she requested it. As Ms. Johnson admitted, she was well aware of the availability of FMLA leave, having used it previously to take leave when her mother was experiencing a serious medical problem. Ms. Johnson was invited back to the School District to teach for the 2009-10 school year. However, over the summer of 2009, Ms. Johnson had another accident, falling and severely breaking her leg. This injury triggered another round of multiple doctor visits, a surgery that did not go well, and a second surgery, which was as successful as possible. Nonetheless, Ms. Johnson testified that she suffered a permanent injury as a result of this accident to compound the permanent injury she said she had from her 2004 car accident. Ms. Johnson testified that as soon as she obtains clearance from her physician, she would like to return to teaching. In contrast to Ms. Johnson's testimony addressing her 2009 FMLA leave experience, during which she worked on physical therapy and alternative pain management techniques that enabled her to reduce her use of pain medication, no similar testimony was offered with respect to how Ms. Johnson has dealt with the new challenge presented by her accident in the summer of 2009. Ms. Johnson did not really speak to how she has managed in the two years since she had a successful nine-week period of teaching, other than to recount the new medical problems caused by her 2009 accident, another parade of doctors and second opinions, and the subsequent surgeries from which she said she will never fully recover. Ms. Johnson's experiences are unfortunate, and one can certainly sympathize with her plights; however, the limited information and absence of explanation leave some concerns, given her track record for dealing with these issues in the past.5/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a final order be entered by the Florida Education Practices Commission finding that Respondent, Audrey Lynette Johnson, violated sections 1012.795(1)(d), (1)(f), (1)(g), and (1)(j) and Rule 6B-1.006(3)(a); and imposing the following as the penalty for such violations: (1) suspension of Respondent's educator's certificate for two years; and (2) imposition of a two-year probationary period following the two-year suspension, subject to such terms and conditions, including participation through completion in a Professional Recovery Network Program, as the Education Practices Commission deems appropriate. DONE AND ENTERED this 28th day of June, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 June, 2011.
The Issue The issues are whether Respondent is in violation of section 464.018(1)(j), Florida Statutes (2020),1 by being unable to practice nursing with reasonable skill and safety; and, if so, the appropriate penalty. 1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. See McClosky v. Dep’t of Fin. Serv., 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that a proceeding is governed by the law in effect at the time of the commission of the acts alleged to constitute a violation of law).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The Department of Health, Board of Nursing, is the state agency charged with regulating nursing in the State of Florida, pursuant to chapters 456 and 464, Florida Statutes. Mr. Kemp is a combat veteran who participated in Operation Desert Storm. In 2004 or 2005, he earned a nursing degree from Virginia College and became licensed in the State of Florida as a licensed practical nurse (“LPN”). Mr. Kemp suffers from post-traumatic stress disorder (“PTSD”), anxiety, and depression. Three or four years ago, Mr. Kemp participated in an outpatient, substance abuse treatment program in Gulf Breeze, Florida. He successfully completed the program but was diagnosed with alcohol abuse disorder. During the Summer of 2020, Mr. Kemp was employed as the Assistant Director of Nursing at a healthcare facility called The Waterford at Creekside (“Creekside”). Belinda Kaye Bass was Creekside’s Director of Nursing and had known Mr. Kemp for approximately 10 years due to previously working with him at Southern Oaks Nursing Home. On approximately Tuesday, June 30, 2020, Mr. Kemp called Ms. Bass to tell her that he was having issues with his father. Mr. Kemp did not report for work the next day, and Ms. Bass became concerned when she was unable to reach him by telephone.3 Because she was already scheduled to leave Creekside’s campus for business purposes on July 2, 2020, Ms. Bass decided to visit Mr. Kemp’s home that morning in order to check on him. Mr. Kemp was at home that morning and had been drinking liquor prior to Ms. Bass’s arrival. At some point during her visit, she was alone in a room of the house and noticed a box containing a bottle of morphine on the floor. Upon picking it up, she discovered that the morphine belonged to a Creekside resident. When Mr. Kemp returned to the room, Ms. Bass asked him about the morphine, and he responded by telling her to leave and accused her of attempting to set him up. Ms. Bass thought that Mr. Kemp was acting paranoid and seemed impaired.4 Ms. Bass returned the morphine to Creekside and called the police. The seal on the morphine bottle was intact, and the police declined to pursue charges against Mr. Kemp. Creekside fired Mr. Kemp on July 3, 2020, for “gross misconduct.” Pursuant to its authority under section 464.018(1)(j), the Department ordered Mr. Kemp to undergo an evaluation of his mental and physical condition.5 Part of that evaluation was a phosphatidyl ethanol (“PEth”) test 3 Mr. Kemp testified that he had told an unidentified person in authority at Creekside on approximately June 30, 2020, that he was resigning because his workload was excessive. Ms. Bass was unaware of Mr. Kemp’s resignation, and her testimony on this point is credited. 4 Mr. Kemp denied that Ms. Bass found a resident’s medication in his home and asserted that Ms. Bass and his ex-wife were conspiring against him. Mr. Kemp’s testimony on this point is not credited. 5 Section 464.018(1)(j) subjects LPNs to discipline for “[b]eing unable to practice nursing 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. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the nurse is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a nurse to submit to a mental or physical examination by physicians designated by the department. If the nurse refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the nurse resides or does business.” of Mr. Kemp’s blood. PEth levels are used to determine if someone drinks heavily or engages in binge drinking. A “normal” or “healthy” PEth level is 20 nanograms per milliliter. Mr. Kemp’s blood contained 317 nanograms per milliliter, and that amount is 15 to 16 times what is considered to be a healthy level. Mr. Kemp’s evaluation also consisted of a two-hour assessment by Dr. Jordan Iserman6 on November 2, 2020. Dr. Iserman considered Mr. Kemp’s PEth test result to be an indication of “pretty serious heavy binge drinking.”7 Dr. Iserman also evaluated Mr. Kemp based on the criteria for severe alcohol use disorder set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (“the DSM-5”).8 If a person satisfies at least two of the 11 criteria set forth in the DSM-5, then that person is thought to suffer from severe alcohol use disorder. Dr. Iserman thought that several of the DSM-5 criteria applied to Mr. Kemp, but two seemed particularly applicable to Mr. Kemp. For example, the DSM-5 indicates that one sign of severe alcohol use disorder is that the person in question has given up important social, occupational, or recreational activities. Dr. Iserman believes that criterion applies to Mr. Kemp because he was “more than comfortable just deciding he wasn’t going back to work.” Also, rather than giving Creekside a two weeks’ notice, he just stopped coming to work. 6 Dr. Iserman is licensed to practice medicine in Florida and is a board-certified psychiatrist and addictionologist. He has been qualified to render opinions regarding addiction medicine in at least 50 other legal proceedings, and the undersigned found him to be qualified to render opinion testimony regarding addiction medicine and related disorders. 7 In addition, a test of Mr. Kemp’s hair indicated that he had been using marijuana. 8 Using the criteria set forth in the DSM-5 to diagnose severe alcohol disorder is an accepted practice in addiction medicine. The DSM-5 also identifies “tolerance” as an indicator of severe alcohol use disorder. In other words, someone with an alcohol use disorder requires markedly increased amounts of alcohol in order to achieve intoxication. Dr. Iserman believes this criterion applies to Mr. Kemp because his PEth test indicated he has a high tolerance for alcohol. As for why someone with depression, PTSD, and severe alcohol use disorder would be unable to practice nursing with reasonable skill and safety, Dr. Iserman explained that alcohol use disorder exacerbates the symptoms of PTSD: Well, actually when you talk about someone with post-traumatic stress disorder, that is a very troubling syndrome whereby the person is continuously revisited by traumatic, sometimes near-death experiences, that have transpired in the past or they had seen a loved one shot and killed in front of them, something tremendous like that. And these people have terrible problems resting, sleeping, they become emotionally numb, they don’t want to have anything to do with people. And so clearly, and many times what they will reach for first is some alcohol because that’s going to numb them up. All right? But that only makes the depression and the anxiety from the post-traumatic stress disorder worse because the hallmark symptom of alcohol withdrawal is anxiety. So you’re sort of – it’s a downward spiral here with one acting on the other, each one acting on the other, to make them both worse. As for how alcohol use disorder affects someone suffering from depression, Dr. Iserman explained that: if you’re already depressed and then you’re drinking alcohol, you’re only – you can only expect that you’re going to intensify the level of depression that you had previously. And you know, does that push a person to the point where they – they’re not in their right mind and they decide to blow their brains out or drive their car into a tree or whatever it is? Certainly could. Dr. Iserman also described how severe alcohol use disorder and depression can impact an LPN’s ability to safety administer medication to patients: Well, if you go back to, you know, how alcohol impairs a [person’s] coordination, focus, and everything like that, I mean, LPNs are passing out medications to different individuals, some of them with morphine and things like that. They could very easily make a medication error and give the wrong person someone else’s medication which could have very serious if not lethal effects on the person that they gave it to by mistake. And it clearly would impair their ability to think clearly, focus, concentrate, not to mention the physical repercussions. * * * Well, if depression is – again, if it’s controlled, then they should be able to perform their chosen profession. Okay? If it’s not, depressed people don’t have a lot of motivation, they don’t have a whole lot of – it can affect them cognitively, emotionally, physically. It will totally destroy motivation, willingness to be [sic] significantly focused in on what it is that they’re supposed to do. They don’t have the motivation. They don’t have the energy. They don’t have [the] oomp to, you know, exert that type of energy. In sum, Dr. Iserman opined that Mr. Kemp is unable to practice nursing with a reasonable degree of skill and safety. Mr. Kemp testified that he has substantially curtailed his alcohol consumption since the PEth test described above. He asserts that he stopped drinking liquor in February or March of 2021 and has since restricted his alcohol consumption to 32 ounces of beer three or four days a week. As for why he supposedly made this change, Mr. Kemp explained that: I was going through a lot, and I noticed that I was drinking a little too much. I was a caregiver for my mom. My mom had passed, my nephew had passed. So, yeah – and I was going through a divorce. So yeah, I noticed that I was drinking too heavy and I talked to some of my family members, and they told me that I need[ed] to slow it down, and that’s what I did. Mr. Kemp’s assertions that he has curtailed his alcohol consumption and restricted himself to beer did not change Dr. Iserman’s opinion that Mr. Kemp is unable to practice nursing with reasonable skill and safety: A: Well, because as I indicated before, it doesn’t really make any difference about, you know, what the source of the alcohol is. If he says all I’m drinking is beer, well, how much beer is he drinking? Okay? And, you know, I suppose you could go back and do another PEth test, but the fact remains that the behavior hasn’t changed. Okay? I mean, this is not an individual, number one, who sees himself as having a problem and so, therefore – you know, that’s the great thing about substance abuse, denial. I didn’t do that. I don’t have a problem. You know, [why] are you coming at me with this stuff? Okay? It allows them to basically continue to go ahead, you know, act out, you know, mistreat[ing] other people plus themselves, or whatever it is that they do, and basically not be bothered by it all. And if they’re in denial, they’re not going to do anything about it. Q: In your experience, do people with alcohol abuse disorder tend to minimize their reports of how much alcohol they drink? A: Oh, routinely. Q: Okay. At his deposition, Mr. Kemp stated that he drinks a quart of beer at a time three to four times a week. If Mr. Kemp’s reports are true, would your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients change? A: No. Q: Why not? A: Well, again, I would say using myself as an example, I know that if I put away a quart of beer three to four times a week, I would not be doing very well. Any by the way, there’s an unwritten rule, if you talk to somebody and you ask them how [much] they drink – now, this is not scientific, and I can’t show it to you in a book. It goes with, you know, experience with this stuff. Whatever [a] person tells you that they drink, double it and you might be at the lower end of what they’re really doing. Mr. Kemp underwent additional testing on June 15, 2021, and a second PEth test returned a result of 243 nanograms per milliliter. That result and other results (or lack thereof) from a second round of testing also had no impact on Dr. Iserman’s opinion regarding Mr. Kemp’s ability to practice nursing with reasonable skill and safety: Q: Based on Mr. Kemp’s [second] PEth test results, has your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients changed? A: No. Q: Is the PEth test result consistent with someone who drinks a quart of beer three to four times a week? A: I’m thinking he’s drinking more than that. Q: Did – you mentioned that Mr. Kemp also tested positive for an ETG test; is that correct? A: Ethyl glucuronide. And actually, when we did the original hair test, he came up positive for marijuana. Now, when we sent him back for the updated PEth test and the urinalysis, we also sent [him] back for another hair test. He arrived there freshly shaven, so there was no hair to test. However, we also have what are called nail tests. Okay? And they can sometimes trace these things back even further. Mr. Kemp refused that test. Q: Okay. And what does that indicate to you? A: Well, it would indicate that if I had nothing to hide or anything to be concerned about, you know, my fingernails will grow back. I don’t know why I would refuse that test. * * * Q: Did [Mr. Kemp] take a urinalysis on June 15, 2021 as well? A: Yes. Q: And was that positive? A: For ethyl glucuronide, yes. * * * Q: Does it show – does it tell you how – when the last time someone consumed alcohol? A: Unlike the phosphatidyl ethanol, the hair testing, the nail testing, and things like that which can go back – nails can go back sometimes almost a year, okay, but ethyl glucuronide does not hang around that long. It is probably going to be gone I would say within a week. Q: So that positive test would mean that Mr. Kemp had consumed alcohol in the last week, for instance? A: Recently. I mean, he would have to have had something recently. As for a treatment recommendation, Dr. Iserman would refer Mr. Kemp to the Interventional Project for Nurses (“IPN”), which could lead to an in-patient treatment program of at least 30 days. After completion of such a program, Dr. Iserman would recommended toxicology monitoring, peer meetings such as those in a 12-step program, psychiatric treatment, and participation in a nurses’ support group. The findings set forth above amount to clear and convincing evidence that Mr. Kemp is unable to practice nursing with reasonable skill and safety.
Conclusions For Petitioner: Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Walter Lindsey Kemp, Jr., pro se 855 Limoges Way Pensacola, Florida 32505
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: (a) finding Walter Lindsey Kemp, Jr., L.P.N. violated section 464.018(1)(j); (b) imposing a $250 fine; and (c) suspending Mr. Kemp’s licensed practical nursing license until such time that he enters into a monitoring contract with IPN and complies with any and all terms and conditions imposed by IPN.9 DONE AND ENTERED this 4th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2021. Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Walter Lindsey Kemp, Jr. 855 Limoges Way Pensacola, Florida 32505 Deborah McKeen, BS, CD-LPN Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Joe Baker, Jr., Executive Director Department of Health, Board of Nursing 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 9 Section 456.072(4) provides that “[i]n addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, under this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case.”
The Issue The issues in this case are whether Respondent violated Subsection 464.018(1)(j), Florida Statutes (2006),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Penansky has been licensed as an A.R.N.P. in Florida, having been issued license number ARNP1302962 in 1982. From 1993 through August 2006, Ms. Penansky was employed as an A.R.N.P. at the Dover Clinic of Suncoast Community Health Centers, Inc. (Suncoast). She was the primary certified nurse midwife at the facility and saw the obstetric/gynecology patients. During 2004, Carmen Laguerra, who was the office manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s breath at work and observed Ms. Penansky’s hands trembling. A couple of times, Ms. Laguerra observed that Ms. Penansky was having trouble walking at work and would put her hand on the walls to support herself. Ms. Penansky came to work at times with bruises on her arms and face. In the fall of 2004, the coordinator of medical records at the Dover Clinic asked Ms. Laguerra to observe Ms. Penansky in the medical records room. Ms. Laguerra observed Ms. Penansky murmuring to herself. Prior to 2004, Ms. Penansky had demonstrated a quiet demeanor. In 2004, Ms. Laguerra observed a change in Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and opinionated. In 2004, Yolanda Guzman, the supervisor of nurses at the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s breath and body while at work. Ms. Guzman also noticed that Ms. Penansky’s hands were trembling and that Ms. Penansky’s speech was not clear. Ms. Guzman observed bruises on Ms. Penansky’s arms and face. Ms. Guzman reported her observations to Ms. Laguerra and to Subhakrarao Medidi, M.D., who was the associate medical director at the Dover Clinic. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one time in 2004. On multiple occasions, he observed Ms. Penansky’s hands shaking. After receiving patient complaints, Dr. Medidi confronted Ms. Penansky about the smell of alcohol. Ms. Penansky denied the use of alcohol, claiming that the smell resulted from the use of mouthwash. Dr. Medidi also recalled one time, in particular, when Ms. Penansky came to work with bruises. George Hammond, the chief administrative officer at Suncoast, met with Ms. Penansky to discuss the observations of employees at the Dover Clinic. Ms. Penansky denied the use of alcohol at work. He directed Ms. Penansky to get a blood- alcohol test. She did as directed, and the result of the test was negative. Mr. Hammond directed Ms. Penansky to contact the Intervention Project for Nurses (IPN), which is the impaired practitioner program for the Board of Nursing. IPN is an independent program that monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department. Ms. Penansky contacted IPN and was referred to Martha E. Brown, M.D., for an evaluation. As part of the evaluation, Ms. Penansky underwent a drug test, which was negative for drugs and alcohol, but was considered dilute. When a drug test is dilute, it usually means that the individual tested consumed a significant amount of fluids prior to the test. Ms. Penansky advised Dr. Brown that she averaged drinking almost every day, but had stopped drinking about ten days prior to the evaluation. As a result of abstinence, Ms. Penansky told Dr. Brown that she felt better and was able to stay up later and get up earlier. Ms. Penansky advised Dr. Brown that her brother had a problem with alcohol and had not had a drink in 20 years. In a report dated November 8, 2004, Dr. Brown opined that there was suspicion for Ms. Penansky having a substance abuse problem. She recommended that Ms. Penansky enter into an abuse contract with IPN for two years with a one-year review. Ms. Penansky entered into an IPN contract in December 2004. Her participation in the program included random drug screening, joining a support group, attending Alcoholics Anonymous meetings, and being evaluated by her supervisor. During her participation in the program, she was tested for alcohol 17 times, and each time the test was negative. Ms. Penansky completed the program in one year. While Ms. Penansky was participating in the IPN program, employees at Suncoast observed positive changes in her. Ms. Penansky’s appearance and mood improved, and the tremors in her hands disappeared. On July 31, 2006, Ms. Penansky was involved in an automobile accident. As a result of the accident, she sustained some bruises to her body, which were visible to employees at the Dover Clinic. In August 2006, while Ms. Penansky was at work, Ms. Guzman again smelled alcohol on Ms. Penansky’s breath and noticed Ms. Penansky’s hands were shaky, and her speech was not normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while Ms. Penansky was at work during the same time period. In August 2006, Dr. Medidi noticed that Ms. Penansky’s hands were shaking again. Ms. Penansky denies that she had alcohol on her breath at work in either 2004 or 2006. However, both Ms. Guzman and Ms. Laguerra testified credibly that they smelled alcohol on Ms. Penansky’s breath and that the smell was different from the smell that would come from the use of mouthwash, which has a medicinal smell. Additionally, Ms. Penansky testified that in 2006 she was not using the mouthwash prior to going to work because she felt that in 2004 her fellow employees had mistaken the smell of the mouthwash for the smell of alcohol. Thus, the smell could not have come from mouthwash in 2006 because Ms. Penansky was not using it. Ms. Penansky commenced a change in her eating habits in which she had lost 50 pounds. In 2006, she was still losing weight, but not at a very rapid pace. At the final hearing, there were some allegations that the odor that Ms. Guzman and Ms. Laguerra smelled was a result of a release of ketones due to Ms. Penansky’s diet. However, the smell caused by ketones is a “sweet smell,” which is different from the smell of alcohol. Another allegation at the final hearing was that the smell could be a result of Ms. Penansky’s periodontal disease, but the smell that would result from a periodontal disease would be different from the smell of alcohol. Neither Ms. Guzman nor Ms. Laguerra had any conflict with Ms. Penansky that would cause them to make false allegations against her. In fact, both Ms. Guzman and Ms. Laguerra were highly complementary of Ms. Penansky’s work, aside from the use of alcohol and the hand tremors. The evidence is clear and convincing that in 2004 and in 2006, Ms. Penansky came to work at the Dover Clinic with alcohol on her breath while she was practicing as the primary midwife at the facility. In August 2006, the observations of Ms. Guzman and Ms. Laguerra were made known to the management at Suncoast. Suncoast elected not to require Ms. Penansky to undergo a drug screening to determine whether she had ingested alcohol. On August 3, 2006, Ms. Penansky was terminated from her position with Suncoast for her use of alcohol and directed to contact IPN. After Ms. Penansky was terminated from Suncoast, she went to work for a private physician. Her employment was uneventful, and she continued in his employ until the Department suspended her license by emergency order. Ms. Penansky did not contact IPN, and Suncoast filed a complaint with the Department. An investigation ensued. The Department required Ms. Penansky to be evaluated. In January 2007, Ms. Penansky was again evaluated by Dr. Brown. Ms. Penansky advised Dr. Brown that she had returned to drinking occasionally after she completed her program with IPN, but denied drinking on the job or drinking in large amounts. A drug screen was performed on Ms. Penansky, and the result was negative. Dr. Brown diagnosed Ms. Penansky with alcohol abuse, "rule out alcohol dependency." Credibly, Dr. Brown opined that Ms. Penansky appeared “to be either in denial or minimizing the impact alcohol has had on her life and the problems she has had at work with others smelling alcohol on her breathe [sic] multiple time [sic].” It was Dr. Brown’s opinion that in order for Ms. Penansky to be able to practice with reasonable safety and skill that she should minimally complete an intensive outpatient program and have monitoring through IPN. Ms. Penansky was also evaluated by Raymond A. Johnson, M.D., who came to the conclusion that Ms. Penansky did not have an addiction and alcohol problem. He felt that she was safe to practice nursing without treatment or monitoring by IPN. In his report dated January 22, 2007, he stated that Ms. Penansky used mouthwash multiple times a day because of periodontal disease, and he concluded that the use of the mouthwash was the reason for the smell of alcohol on her breath. His argument loses plausibility based on Ms. Penansky’s testimony at final hearing that she was not using the mouthwash in 2006 prior to going to work so that people would not mistake the smell of mouthwash for the smell of alcohol. Dr. Johnson had a psychological evaluation performed on Ms. Penansky by Nicholas Anthony, Ph.D. In his report, Dr. Anthony stated that Ms. Penansky told him that her brother was no longer allowed to use alcohol because he had been diagnosed with diabetes. Based on Ms. Penansky’s representations, he concluded that she did not have a family history for addiction. Ms. Penansky’s account of her brother’s abstinence differed when she related her family history to Dr. Brown. She did not tell Dr. Brown that her brother had stopped drinking because he was a diabetic. At the final hearing, she did not mention that her brother refrained from drinking because of diabetes. At the final hearing, Ms. Penansky testified: Well, what he [her brother] told me, in fact, what he told the whole family was, at one point he said he just felt like he was drinking too much and decided to stop. That was it. He never said anything about being an alcoholic. He never said he was diagnosed by a physician. He made a personal choice. Dr. Anthony tested Ms. Penansky using the Minnesota Multiphasic Personality Inventory-II (MMPI), The Rorschach, and the Million Clinical Multiaxial Inventory-III (MCMI). The Rorschach, otherwise known as the “ink blot” test, is not commonly used in the field of addiction psychiatry to look at substance abuse diagnoses. In the field of psychiatry, alcohol abuse and alcohol dependency are considered Axis I, or primary, diagnoses. The MMPI and the MCMI are more accurate and effective in diagnosing other Axis I disorders such as psychosis than in diagnosing substance abuse or dependency. This is due to the fact that individuals with substance abuse or dependency problems often attempt to present themselves in the best possible light when answering the test questions. The test results themselves for these individuals are often invalid because the test either misses the substance abuse or dependency diagnosis or identifies the individual’s denial or minimization tendencies. The Adult Clinical Interpretive Report for Ms. Penansky’s MMPI test states: [Ms. Penansky] approached the test items in a somewhat defensive manner. Her overcautious approach to the items suggests that she is concerned with making a good impression and is reluctant to disclose much about her personal adjustment. Interpretations of the clinical and content scale profiles should allow for her possible minimization of problems. The Adult Clinical Interpretive Report for Ms. Penansky’s MCMI test states: Unless this patient is a well-functioning adult who is facing minor life stressors, her responses suggest an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, the patient may protectively deny any unseemly traits or symptoms. This probably reflects either a broad-based concern about being appraised unfavorably by others or an active suspicion of the arcane motives of psychological inquiry. Her MCMI-II scores have been adjusted to compensate for her defensiveness, but the overall profile may remain partially distorted. An interpretation based on standard interpretive procedures is likely to be reasonably valid but may fail to represent certain features of either the patient’s disorders or her character. The BR scores reported for this individual have been modified to account for the defensiveness suggested by the prominence of Personality Patterns Scale 7 (Compulsive). Dr. Anthony interpreted the results of Ms. Penansky’s test scores as being negative for a diagnosis of alcohol abuse or dependency. Dr. Johnson relied on Dr. Anthony’s interpretation of test results in forming his opinion that Ms. Penansky was negative for a diagnosis of alcohol abuse or dependency. Dr. Brown reviewed the Adult Clinical Interpretive Reports of the MMPI and the MCMI performed on Ms. Penansky by Dr. Anthony and opined that the tests are bordering on invalid and that, given Ms. Penansky’s defensiveness on the test in answering questions, she would not use the test results as a total basis for concluding that Ms. Penansky did not have a problem with alcohol. Given Dr. Johnson’s reliance on the use of mouthwash as the explanation for the smell on alcohol on Ms. Penansky’s breath, the lack of credibility in Ms. Penansky’s account of her family history, and the defensive answers given by Ms. Penansky on her psychological testing, Dr. Johnson’s opinion concerning Ms. Penansky’s alcohol abuse lacks credibility. Current and former employees of Suncoast highly regarded Ms. Penansky’s work. Her evaluations were very good. She worked very hard, and the quality of her work was excellent. However, alcohol abuse can affect a nurse’s judgment and ability to practice with reasonable skill and safety. Alcohol may slow concentration and thinking and thereby cause a nurse to miss a diagnosis or symptom while treating a patient. Alcohol abuse may cause tremors, such as those experienced by Ms. Penansky. Although Ms. Penansky’s alcohol abuse may not have resulted in patient harm, it does not mean that it will not result in harm in the future. It is not necessary to wait for a patient to be harmed to determine whether a nurse can practice with reasonable skill and safety by reason of use of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j), Florida Statutes; imposing an administrative fine of $250; requiring her to undergo an IPN evaluation; suspending her license until such time as she undergoes an IPN evaluation; requiring compliance with all IPN recommendations, if any; and placing her on probation for three years with direct supervision. DONE AND ENTERED this 25th day of September, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 25th day of September, 2007.
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, sufficient to justify the imposition of disciplinarysanctions against her license. The resolution of this issue rests upon a determination of whether Respondent intubated the esophagus of a patient, as opposed to the patient's trachea, in the course of rendering anesthesia care; and whether Respondent then failed to provide a record justifying such a course of medical treatment.
Findings Of Fact Respondent is Saroja L. Ranpura, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0039872. Respondent was licensed in the State of Florida on April 27, 1982. She currently practices medicine in Ohio. Petitioner is the Department of Professional Regulation, Board of Medicine, the state agency charged with the regulation of physicians in the State of Florida. On August 29, 1985, Frank Snydle, M.D., performed a laparoscopy on patient C.P. at Heart of Florida Hospital in Haines City, Florida. This medical procedure was performed on an outpatient basis. As a result, C.P. came into the hospital on the day the surgery was to be performed. She met Respondent, who later provided anesthesia care to her in the course of the laparoscopy. Respondent examined C.P. at that time, prior to the surgery, and noted that C.P. had a small mouth. Later, C.P. was brought into the operating room on a stretcher and moved herself over onto the operating table. Present in the operating room at that time were Jean Allen, L.P.N., Norma Masters, R.N., and Respondent. Respondent proceeded to do an unusual procedure known as a "blind nasal intubation." The procedure requires the placement of an tube in the patient's throat through the nose, as opposed to the mouth, in order to maintain an open airway during later anesthesia administration in the process of surgery. C.P. was sedated, but awake, during this process and was intubated with a minor degree of difficulty. Prior to placement of the endotracheal tube, Respondent had the patient breath pure oxygen through a mask covering the mouth and nose. The preoxygenation process, according to Respondent, provided extra oxygen "as a reservoir and as astorage" to C.P.'s body tissues. By letting a patient breath 100 percent oxygen for three to four minutes, the resultant saturation permits a margin of four to six minutes for such an intubation to be safely completed without risk of the patient becoming hypoxic. Jean Allen, with almost 25 years of nursing experience in a surgical assistance career where she assists in 400 to 600 operations per year, observed Respondent during the entire intubation process, inclusive of the preoxygenation phase. Accepted medical practice after such an intubation requires that the person placing the tube then listen for breath sounds over each lung and over the area of the stomach. Respondent maintains that she did listen for those breath sounds with the aid of a stethoscope. The anesthesia record completed by Respondent has a notation "BEBS" for bilateral and equal breath sounds which Respondent testified that she heard with the stethoscope prior to administering additional sodium pentothal to the patient and inflating the cuff of the endotracheal tube. This testimony of Respondent is not credited in view of the testimony of Ms. Allen that she observed Respondent during this entire time and that Respondent did not listen for the breath sounds with a stethoscope prior to administering the additional sodium pentothal to the patient. Allen's testimony is also afforded the greater credibility due to her opportunity as a neutral witness to observe the events which transpired and her testimony that although she didn't observe Respondent closely after the additional sodium pentothal was administered, she maintained that she would have recalled Respondent's use of the stethoscope prior to that point. Notably, it is at that point prior to the administration of the additional sodium pentothal and inflation of the cuff of the endotracheal tube where Respondent maintains she listened for the breath sounds. Respondent, after completion of the placement of the endotracheal tube, administered additional sodium pentothal to the patient without listening for breath sounds; connected the tube to the anesthesia machine; and remarked that "it must be in place, the bag is moving" in reference to the bag on the anesthesia machine which generally inflates as the lungs of the patient deflate. While inflation or deflation of a breath bag on an anesthesia machine is one part of the procedure for checking placement of an endotracheal tube, the expert testimony of John Kruse, M.D., and David Alan Cross, M.D., establishes that this procedure alone is not a reliable method of determining proper tube placement. Frank Snydle, M.D., who had entered the operating room by this time in the sequence of events, did a manual vaginal examination of the patient, left the room, scrubbed his hands and returned. He then donned surgical gloves and gown, moved to the left side of the patient and prepared to proceed with the operation. Ms. Allen took her position at the foot of the table, between the patient's legs with an unobstructed view of Respondent. Dr. Snydle proceeded to make a small incision in the patient's abdomen through which he inserted a hollow, "Verres" needle. Carbon dioxide was then introduced to C.P.'s abdominalcavity to push the abdominal wall away from the internal organs. Next, a device known as a "trocar" and a "trocar sleeve" was inserted through the incision into the abdomen. The trocar was then withdrawn and a laparoscope was inserted into the sleeve. Built somewhat like a telescope with a built-in light source, the laparoscope permits the surgeon to look inside the abdomen and visually observe the patient's internal organs. During this procedure, Nurse Allen commented that she heard a sound like a fog horn or frogs croaking when she touched the patient's abdomen. Allen's remark is corroborated by Norma Masters and Dr. Snydle. The proof establishes, as corroborated by expert testimony of Dr. Kruse, that such sounds were associated with air, captured in C.P.'s stomach as the result of esophageal intubation, escaping from the stomach when pressure was applied. When Dr. Snydle made his first incision in the patient's abdomen, Allen observed that the blood was dark and Dr. Snydle agreed. Respondent inquired whether it could be venous blood. Snydle indicated he didn't think this was the case. Notably, the dark blood was observed, according to Respondent's medical records at 10:27 a.m. Further, Petitioner's experts, Dr. Kruse and Dr. Cross, based on their review of C.P.'s medical records, determined that the patient was initially intubated at approximately 10:15 a.m. Thus, approximately 12 minutes transpired from the beginning of the intubation process and conclusion of preoxygenation of the patient until the observation of dark bloodat the time of incision. After her inquiry regarding whether the blood could be venous, Respondent further responded that she was giving the patient 50 percent oxygen. She testified that she then increased the oxygen level to 100 percent. While the anesthesia record indicates administration of 100 percent oxygen, there is no time notation when this occurred. Blood again welled up from the incision and Nurse Allen commented that the blood appeared black. The less oxygenated blood becomes, the darker it appears. By this time, Dr. Snydle had inserted the laparoscope in C.P.'s abdomen. He observed that the internal organs were a "blueish color" ; an observation consistent with a decreasing level of oxygen in the patient's blood and an indication that the patient was hypoxic. When the patient's internal organs were discerned to be blue, Respondent asked Dr. Snydle to wait a moment and requested the assistance of Norma Masters, the circulating nurse. Masters came to the head of the operating table and was handed another endotracheal tube by Respondent. Respondent then began the process of intubating the patient with that tube through the mouth. The original nasal tube was left in place during the insertion of the second tube; an unheard of possibility, according to expert testimony, unless one tube was in the patient's esophagus and the other in the trachea. Nurse Allen's testimony establishes that the second tube, inserted via the patient's mouth, became foggy after insertion. The observation by Allen is consistent with experttestimony and establishes the fog was created by warm moist air from the patient's lungs flowing through the second tube. Respondent's testimony that she placed the second tube at the conclusion of the surgical procedure is not credited in view of the very clear, contradictory testimony of Masters and Allen that the endotracheal tube was replaced contemporaneously with the notation that the blood was dark and the patient's organs "blueish". After removal of the nasal tube and connection of the second tube to the anesthesia machine, Respondent manually squeezed the anesthesia bag to ventilate the patient. Dr. Snydle observed that the organs were turning pink again, and continued the procedure without further incident. After finishing the procedure, Snydle went out of the operating room, sat at a desk across the hall and began to write his orders. Following the procedure, the patient was wheeled to the recovery room, a short distance away. Nurses Allen and Masters did not see C.P. open her eyes during this process. Respondent's assertion that the patient opened her eyes and was responsive to commands is corroborated only by Dr. Snydle. However, while he noted in his operative report and his deposition that C.P. was awake following the operation, Snydle's observation is not credited in view of other proof establishing that his back was to the patient as she was wheeled past and that he assumed an awake state in the patient because Respondent was speaking to C.P. In view of the foregoing, Respondent's testimony that the patient was awake or responsive to commands following the surgery is not credited. After the patient was removed approximately 15 feet away to the recovery room, Respondent maintains that she informed Margaret Bloom, R.N., who was on duty there, that the patient's endotracheal tube was not to be removed, although she omitted telling Bloom about the dark blood incident. Bloom, who is also a certified registered nurse anesthetist, maintains that Respondent told her nothing about C.P.'s condition; instead, she went rapidly to the rest room in the lounge area. Bloom, left in the recovery room with the patient, then proceeded to hook up appropriate monitors and oxygen to the patient's endotracheal tube and began the process of monitoring C.P.'s vital signs. Bloom places the time of C.P.'s arrival time in the recovery room at approximately 11:05 a.m. The patient was not responsive to Bloom's spoken commands when brought to the recovery room. The patient appeared well oxygenated to Bloom; a judgement she made based on her observation of the color of C.P.'s lips and fingernails, since C.P. is a black female. Bloom rated C.P.'s circulation at twenty to fifty percent of preanesthetic pressure and determined the patient to be totally unconscious. Respondent returned to the recovery room at this time, told Bloom that she had done an "awake intubation" on the patient and that the tube should remain in place until Bloom determined that the patient was ready for it to be removed. Respondent then left the recovery room. As the result of blood tinged mucus filling the patient's endotracheal tube, Bloom removed the tube after thepatient registered breathing difficulties and attempts by Bloom to suction the mucus failed. She replaced that tube with a device known as an oral pharyngeal airway which goes in the patient's mouth and curves down the throat, holding the tongue forward. The device does not reach to the lungs. Shortly thereafter the patient began making glutteral noises and Bloom placed a venturi mask on the patient. The mask controlled the percentage of oxygen going to the patient, estimated by Bloom to be sixty to one hundred percent oxygen. The patient's breathing improved. Bloom completed replacement of the endotracheal tube with the airway device and mask shortly before Respondent again returned to the recovery room. Respondent, upset at Bloom's action in removing the endotracheal tube, proceeded to replace the oral airway device with a nasal tube. At 11:20 a.m., Bloom noted in her records that the patient's state of consciousness was unchanged. Later the patient made moaning sounds and was responsive to pain stimulation at approximately 12:20 p.m. Respondent concedes that C.P. suffered an hypoxic event at some point which resulted in damaged brain function. It is Respondent's position that such event occurred in the recovery room as the result of laryngospasm, occasioned by Bloom's removal of the endotracheal tube. Allen and Masters working in the operating room a short distance away testified that the sounds they heard emanating from the area of the recovery room were not the type of noise they associated with laryngospasm. Bloom, trained to recognize laryngospasm, testified that C.P. did not have sucha spasm. The expert testimony of David Cross, M.D., based on a study of arterial blood gases of C.P. following the surgery, establishes that the patient suffered an hypoxic episode too severe and too protracted to have been the result of a possible laryngospasm in the recovery room and that, in his expert opinion, she did not have a recovery room laryngospasm. Respondent's defense that C.P.'s survival of such a lengthy esophageal intubation in the operating room is an impossibility, is not persuasive. The opinion of Respondent's expert, Dr. Gilbert Stone, that no esophageal intubation occurred in the operating room is predicated on his belief that the tube was not changed during the surgery. Dr. Stone conceded that replacement of the tube during surgery at the time the dark blood was noticed with resultant improvement in the patient's condition permits a conclusion that esophageal intubation was the cause of the hypoxia. Testimony of Petitioner's experts, Dr. Cross and Dr. Kruse, are consistent in their conclusions that C.P. was esophageally intubated by Respondent, although they differ in their reasons for C.P.'s survival of the event. The opinion of these experts, coupled with the eye witness testimony of Allen and Masters, further support a finding of Respondent's esophageal intubation of the patient in the operating room and that she failed to recognize such intubation in a timely manner as a reasonable and prudent physician should have. The expert opinion testimony of Dr. Cross establishes that C.P. was intubated in her esophagus and survivedas a result of oxygen, going into her stomach under pressure, being forced back up her esophagus into the pharynx and then drawn by negative pressure into the lungs. This resulted in a effect similar to, but not as efficient as, the technique known as apneic oxygenation. The technique, once used to provide marginally adequate oxygen levels to maintain a patient's neurological and cardiac status, has fell into disfavor since patients suffered from respiratory acidosis due to the buildup of carbon dioxide in the lungs. Cross also pointed out that the heart can function for a much longer period of time without adequate oxygen than is possible for the brain. Cross's testimony provides an explanation for C.P.'s neurological damage without similar cardiac impairment. Cross also noted that the preoxygenation process which C.P. initially underwent after entering the operating room added to the time she was able to undergo oxygen deprivation before the onset of tissue damage. Respondent notes the discovery of a tumor in C.P.'s throat some months later as a possible contributor to the patient's hypoxic event during surgery. Another of Respondent's experts, Dr. Deane Briggs, an otolaryngologist specializing in diseases of the ears, nose and throat, treated C.P. in October of 1985, following the August, 1985 surgery. He discovered the existence of a sub-glottic tumor in the patient's throat. However, the existence of the tumor at the time of the initial surgery is not established. Testimony of anesthesiologist experts, including Respondent's own expert, Dr. Stone, do not support a finding that the tumor, if itexisted, had any effect during the operation. Further, Dr. Briggs' opinion that Respondent probably intubated the patient's right stem bronchus, as opposed to the esophagus, and that neurological damage therefore occurred in the recovery room is not credited in view of the conflict of this testimony with that of other witnesses and expert opinions. A finding that C.P.'s neurological impairment following surgery may have been exacerbated by a possible laryngospasm in the recovery room is relevant only with regard to mitigation of the severity of penalty to be imposed for Respondent's misconduct. Respondent's esophageal intubation of the patient in the operating room, and the resultant hypoxic event are established by clear and convincing evidence. The fact that C.P. suffered brain damage is undisputed by the parties. The proof clearly and convincingly establishes that the severe and protracted hypoxic episode sustained by the patient resulted not from a possible mild recovery room laryngospasm, but from Respondent's esophageal intubation of that patient in the operating room. It is concluded with respect to treatment of C.P., Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to keep medical records which justified her course of treatment of the patient, C.P. This finding is based upon the testimony of Dr. Cross that Respondent'smedical records did not justify her course of treatment, as well as the testimony of Respondent's expert, Dr. Stone. While testifying that he did not believe Respondent had intubated the patient's esophagus, Stone also acknowledged that Respondent's records would be inadequate if such had indeed occurred.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered for Respondent's violation of Section 458.331(1)(t), Florida Statutes, placing Respondent's license on probation for a period of three years upon terms and conditions to be determined by the Board of Medicine, including, but not limited to, a condition requiring Respondent's participation in appropriate continuing medical education courses; and imposing an administrative fine of $2,000. IT IS FURTHER RECOMMENDED that such Final Order impose a penalty for Respondent's violation of Section 458.331(1)(m), Florida Statutes, of an administrative fine of $500 and a letter of reprimand. DONE AND ENTERED this 28th day of August, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-28. Accepted. 29. Unnecessary to result. 30.-31. Accepted. 32.-34. Adopted by reference. 35.-61. Adopted in substance. 62. Unnecessary to result. 63.-68. Adopted in substance. 69.-87. Adopted by reference. Respondent's Proposed Findings. 1.-3. Rejected, not supported by the evidence. 4.-5. Rejected, not supported by the evidence, Further, proposed findings that records were adequate constitute legal conclusions. 6. Rejected, not supported by the evidence. COPIES FURNISHED: David G. Pius, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Sidney L. Matthew, Esq. Suite 100 135 South Monroe St. Tallahassee, FL 32302 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue The issue in this case is whether the Department of Environmental Protection ("DEP") should issue an air construction permit authorizing Oleander Power Project, L.P. ("Oleander"), to build and operate an electrical power plant in Brevard County, Florida, that includes five combustion turbines and two fuel oil storage tanks (the "Project").
Findings Of Fact Oleander seeks an air construction permit to build and operate an electrical power plant in Brevard County, Florida. Oleander provided reasonable assurances that the Project will comply with all of the conditions and emissions limitations prescribed by DEP in the Draft Permit. The Project received adequate review from the state agency responsible for regulating the Project. DEP reviewed Oleander’s application, requested and received additional information concerning the Project, and independently verified the impacts assessments contained in the application. The Project received adequate review from Brevard County. Oleander executed a Stipulated Settlement Agreement with Brevard County (the "Brevard County Agreement") in which Oleander agreed to comply with restrictions concerning the Project’s hours of operation, minimum buffers, noise, odor, vibrations, traffic, and other issues. The Brevard County Agreement provides additional assurances that the Project will not adversely impact the public. Members of the public received adequate notice of the Project and had sufficient opportunity to make public comments. On March 3, 1999, DEP held a public meeting in Brevard County to receive public comments regarding Oleander’s application. On March 26, 1999, DEP issued its Public Notice of DEP’s intent to grant the Draft Permit to Oleander. On April 8, 1999, DEP’s Public Notice was published in Florida Today. On May 13, 1999, DEP held a second public meeting in Brevard County to receive public comments concerning Oleander’s application. Members of the public had an opportunity during the administrative hearing to enter their comments on the record. The Project includes the construction and operation of five 190 megawatt ("MW") combustion turbines that will be used to generate electricity. The Project also includes the construction and use of two fuel oil storage tanks, two water storage tanks, an administrative building, a stormwater management system, and other associated and ancillary facilities. The Project is a "peaking" power plant. It will operate only during times of peak demand caused by hot or cold weather or storm events. The Draft Permit authorizes Oleander to operate the Project’s combustion turbines for a maximum of 3,390 hours per year, or approximately 39 percent of the available hours in a year. During the remainder of the year, the combustion turbines will not operate and will not have any airborne emissions. Based on the historical experience of other peaking power plants in Florida, the combustion turbines are expected to operate less than 800 hours per year. Oleander’s combustion turbines will be the most advanced turbines used in Florida for peaking service. Oleander’s turbines will be more efficient, in terms of emissions and producing power, than the turbines currently used at other peaking plants in Florida. The Project will use General Electric ("GE") Frame 7FA combustion turbines. These turbines are capable of complying with the emission limits and requirements in the Draft Permit. Oleander will hire staff or train their own staff to operate the Project in compliance with the Draft Permit. Oleander’s parent company already has a training program for its plant operators. Oleander has operated similar projects successfully. The primary fuel for the power plant will be natural gas. Natural gas is the cleanest burning of all fossil fuels. In the event that natural gas becomes unavailable, the Draft Permit authorizes use of low sulfur distillate fuel oil ("fuel oil") for the equivalent of 1,000 hours of full-load operations per year. Fuel oil contains a maximum of 0.05 percent sulfur, is 35 to 50 percent more expensive than natural gas, and imposes economic incentives for Oleander to minimize the use of fuel oil. Water needed for the Project will be provided by the City of Cocoa. Oleander will not install any on-site wells to supply water to the Project. All of the wastewater from the Project will be sent by pipeline to the City of Cocoa’s wastewater treatment plant. The Project will not discharge any industrial wastewater on-site. The Project will be built on a site that is located northeast of the intersection of Interstate 95 ("I-95") and State Road ("SR") 520 in unincorporated Brevard County (the "Site"). The Site contains approximately 38 acres of land. The Site is appropriate for use as an electrical power plant. The Site already is zoned for industrial purposes. The surrounding areas are primarily zoned for industrial uses. An existing electrical substation is located on the north side of the Site. An existing electrical transmission line corridor is located on the west side of the Site. Townsend Road is located on the south side of the Site. An existing natural gas pipeline is located nearby, on the west side of I-95, and can provide gas for the Project. Residential, commercial, and industrial development within a three kilometer radius of the Site is minimal. The Project will be compatible with those industrial and commercial land uses that are located in the area near the Site. The closest residential areas are more than 1,400 feet from the Site. The Site is compatible with the closest residential neighborhoods. The Site and adjacent off-Site areas provide a significant buffer to the closest residential areas. The Site can be developed without causing adverse impacts on residential areas. Combustion turbines currently operate at many locations in diverse population centers in Florida. For example, combustion turbines are operated within 800 feet of the Shands Hospital at the University of Florida, within 1,200 feet of Cinderella’s Castle at Disney World’s Magic Kingdom, and near the Lake Worth High School. Combustion turbines also are located near several residential neighborhoods in the state. DEP and Oleander evaluated the Project in accordance with requirements prescribed in DEP’s Prevention of Significant Deterioration ("PSD") program. As part of the PSD review, a determination was made of the Best Available Control Technology ("BACT"). A BACT determination involves a case-by-case analysis of those air pollution control technologies that are feasible and can achieve the maximum emission reductions. A BACT determination also requires an analysis of the costs, environmental impacts, and energy impacts associated with the use of each one of the proposed control technologies. A BACT determination results in the establishment of an emission limit for each pollutant of concern. In this case, DEP determined the appropriate BACT limits for the Project’s emissions of carbon monoxide ("CO"), oxides of nitrogen ("NOx"), sulfur dioxide ("SO2"), sulfuric acid mist ("SAM"), volatile organic compounds ("VOCs"), particulate matter ("PM"), and particulate matter less than ten microns in diameter ("PM10"). (PM and PM10 are referred to herein as "PM/PM10.") BACT emission limits applicable to the Project are set forth in the Draft Permit, and are incorporated by reference in this Recommended Order. DEP determined that when the Project operates on natural gas, BACT for NOx is an emission limit of 9 parts per million ("ppm"), corrected to 15 percent oxygen. This emission limit is based on the use of dry low NOx ("DLN") combustion technology utilized in the combustion turbines included in the Project. The proposed NOx emission limit of 9 ppm is the lowest emission limit in Florida for simple cycle peaking power plants and sets the standard for similar facilities throughout the United States. DEP determined that when the Project operates on fuel oil, BACT for NOx is an emission limit of 42 ppm, corrected to 15 percent oxygen. This emission limit is based on the use of DLN and wet injection technology. Wet injection technology involves the injection of either water or steam directly into the combustor to lower the flame temperature and thereby reduce the formation of NOx. The U.S. Fish and Wildlife Service ("USFWS") provided comments to DEP concerning the Project. In their comments, the USFWS suggested that the NOx emission limit should be 25 ppm when the Project is operating with fuel oil. However, the USFWS’ suggestion was based on the USFWS’ misreading of the provisions of other PSD permits. When read correctly, those permits establish the same NOx emission limit when firing fuel oil that DEP established in this case, i.e., 42 ppm. In its BACT determination, DEP considered whether a selective catalytic reduction ("SCR") system should be used to reduce the Project’s NOx emissions. SCR is an add-on NOx control system in which ammonia is injected into the exhaust gases of a combustion turbine. The exhaust gases are then exposed to a catalyst where the ammonia and the NOx react to form nitrogen and water. SCR does not represent BACT in this case and should not be required for the Project. The use of SCR would impose excessive costs on the Project, adversely impact the Project’s energy efficiency, and cause increased emissions of particulate matter and ammonia. BACT for CO and VOCs is based on the Project’s use of an advanced combustor design, i.e., DLN technology, and good combustion practices. The use of an oxidation catalyst for CO removal is not required because an oxidation catalyst is not cost effective for the Project. BACT for PM/PM10, SO2, and SAM is based on good combustion practices and the use of clean low sulfur fuels. The PSD program establishes separate ambient air quality standards for Class I and Class II areas defined in Florida Administrative Code Rule 62-204.360(4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) The Project is located in a Class II area. The Project’s impacts on ambient air concentrations will be below all applicable PSD standards ("increments") prescribed in Rule 62-204.260(2) for Class II areas. The nearest PSD Class I area is the Chassahowitzka Wildlife Refuge (the "Refuge"). The Refuge is approximately 180 kilometers from the Site. An analysis of the Project’s impacts on the Refuge is not required because the Refuge is more than 150 kilometers from the Site. The impacts from the Project on the closest Class I area are expected to be insignificant within the meaning of Rule 62-204.200(29). DEP does not require Oleander to evaluate the cumulative impacts caused by the Project and other major sources of air pollution in the relevant Class II area. However, Oleander evaluated the Project’s impacts together with the impacts of the Florida Power & Light Cape Canaveral Plant, the Orlando Utilities Commission’s Indian River Plant, and the Orlando Utilities Commission’s Stanton Energy Center. The Project itself will not have any measurable effect on the ambient conditions resulting from the operation of all of these sources. DEP has adopted primary and secondary Ambient Air Quality Standards ("AAQS") in accordance with requirements adopted by the U.S. Environmental Protection Agency ("EPA"). Primary standards are designed to create an adequate margin of safety for the protection of the public health, including the health of the young, the old, and those with respiratory diseases such as asthma. Secondary standards are designed to protect the public welfare from any known or anticipated adverse effects of air pollution. AAQS are reviewed every five years by scientists and physicians in light of the most recent scientific studies and data. In Brevard County, existing air quality is better than levels allowed under AAQS. Brevard County is classified as an attainment area. Oleander analyzed the Project’s potential impacts on ambient air quality in Brevard County in compliance with the applicable DEP requirements for such an analysis. Oleander’s analysis was based on conservative assumptions intended to over- estimate impacts from the Project. For example, the analysis assumed that the Project would operate continuously throughout the entire year, even though the Project’s annual operations will be limited to a maximum of 3,390 hours. In addition, Oleander assumed that the Project would use fuel oil for the entire year, even though the Project will be limited to firing fuel oil for a maximum of 1,000 hours per year. The Project’s maximum impacts on ambient air quality will be 0.6 percent or less of the applicable AAQS for each criteria pollutant. Oleander's analysis demonstrates a wide margin of safety for public health and welfare. The Project’s maximum potential impacts are less than the EPA "significant impact" levels. Consequently, the Project’s impacts are deemed insignificant from a regulatory perspective, and more detailed analyses of the Project’s impacts on ambient air quality are not required under applicable PSD requirements. The Project is not expected to cause any meaningful impacts on air quality in any neighborhood in Brevard County. In all neighborhoods, the Project’s impacts on air quality will be insignificant. Similarly, the Project’s impacts on soils, vegetation, wildlife, and visibility will be insignificant. The Project also will not cause any significant growth-related air quality impacts. The cumulative impacts from the Project and other sources of air pollution in the area will be insignificant. When all of these sources are considered together, the maximum impact from their combined emissions will be 50 percent or less of the applicable AAQS. The PSD program does not require Oleander to perform any ambient air quality monitoring for any pollutant prior to the time that construction of the Project commences because the Project’s air quality impacts will be less than the applicable DEP de minimis levels. Pre-construction monitoring for ozone is not required unless a facility will have VOC emissions equal to or greater than 100 tons per year. The Project’s maximum potential VOC emissions will be 64 tons per year. Therefore, the Draft Permit does not require Oleander to install any ozone monitors. DEP maintains two ambient air quality monitors in Brevard County to measure ozone concentrations. DEP also has ambient air quality monitors for ozone in Volusia, Seminole, Orange, Osceola, and St. Lucie Counties. The ambient air quality data from DEP monitors demonstrate that the ozone concentrations in Brevard County are below the applicable AAQS. Further, the data demonstrate that ozone is a regional issue because the ozone levels in the region tend to rise and fall at the same time and to the same degree. A requirement for Oleander to install an additional monitor in Brevard County would be unnecessary and unjustified. The impacts from the Project on ozone and other ambient air quality parameters are so small that the impacts could not be measured with an additional monitor. An additional monitor in Brevard County would provide no meaningful benefits when assessing whether Brevard County is meeting the AAQS for ozone and would cost between $75,000 and $100,000 a year to install and operate. Emissions from the Project will not cause any significant impact on the water quality of water bodies in Brevard County. There will be minimal, if any, "fallout" of particles into nearby waters, including the St. Johns and Indian Rivers. The maximum amount of nitrogen that could be deposited annually as a result of airborne NOx emissions from the Project is 0.0007 grams per square meter ("g/m2"). By comparison, the current nitrogen deposition rate from other sources in the area is 0.4 g/m2. Thus, the Project’s impact on nitrogen deposition in the area will be only a fraction of the deposition that is occurring already. Airborne emissions from the Project will not cause or significantly contribute to a violation of any ambient air quality standard or PSD increment. The Project complies with all applicable DEP air quality requirements, including the applicable policies, rules, and statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: DEP enter a final order granting Oleander’s application for an air construction permit for the Project, subject to the conditions and limitations contained in the Draft Permit. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 27th day of September, 1999. COPIES FURNISHED: F. Perry Odom, General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 W. Douglas Beason, Assistant General Counsel Scott A. Goorland, Assistant General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.
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.
