The Issue Whether Florida Administrative Code Rule 11D-8.003(2) is an "invalid exercise of delegated legislative authority" for the reasons alleged in the petition filed by Petitioners.
Findings Of Fact Petitioners are defendants in various pending prosecutions in Brevard County, Florida. They all were charged with driving with an unlawful breath alcohol level, after having taken breath tests pursuant to the implied consent requirement of section 316.1932(1)(a)1.a., Florida Statutes, which presently provides, in pertinent part, that "[a]ny person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages."2/ They have also been charged under the alternative theory of driving under the influence of alcohol to the extent their normal faculties were impaired. Under this theory of prosecution, the State can argue that with a breath alcohol level in excess of .08, a defendant is presumed to have been under the influence of alcohol to the extent his or her normal faculties were impaired.3/ The state of Florida intends to offer evidence in each of these cases that the defendant had an unlawful breath alcohol level at the time of the charged offense. In offering such evidence, the state will argue that it has complied with all statutory and rule prerequisites to the evidence's admissibility. Among other things, it will allege that each defendant took an "approved" infrared breath test on an Intoxilyzer 8000. Section 316.1932(1)(a)2. presently provides, in pertinent part, as follows: The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. . . . The program shall: * * * g. Have the authority to approve or disapprove breath test instruments and accompanying paraphernalia for use pursuant to the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. * * * l. Promulgate rules for the administration and implementation of this section, including definitions of terms. Florida Administrative Code Rule 11D-8.003 is an existing rule of FDLE that was adopted pursuant to the rulemaking authority granted by section 316.1932(1)(a)2. It is entitled, "Approval of Breath Test Methods and Instruments," and provides as follows: The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. The Department has approved the following breath test instrumentation for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series - including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 - Rev. March 2004. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument. The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 - Rev. March 2004. The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. Since 2001, rule 11D-8.003 has been amended twice--in 2002 and, most recently, in 2004. Before its amendment in 2002, the rule provided as follows: The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department has approved the following breath test instrument(s) for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series – including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. The determination to evaluate an evidentiary breath test instrument for use in the State of Florida will be made by the Department. Upon notification by the Department that an evidentiary breath test instrument will be evaluated, the instrument's manufacturer shall submit the following to the Department: The method of analysis upon which the instrument is based; The instrument's model designation; At least two (2) instruments for evaluation and a certificate of calibration for each instrument; A description of the instrument; The operator's/technician's manual; A schematic design of the instrument; The instrument's maintenance manual, if published; Any accessories and materials necessary to use the instrument for breath testing; The maximum and minimum temperatures at which the instrument provides accurate results; The name and description of the software used. A manufacturer whose instrument has been previously approved by the Department shall notify the Department in writing prior to making any modification or adding a new option to such instrument. The Department shall evaluate such modifications or options to an approved breath test instrument and determine whether they affect the instrument's method of analysis or analytical reliability. The Department shall conduct evaluations for approval under sections (4) and (5) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001. The Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001 (Form 34) referred to in subsection (6) of the pre-2002 version of rule 11D-8.003 read as follows: The following procedures will be used to evaluate breath test instruments for approval for use in Florida, and to evaluate any changes, modifications or new options to a previously approved breath test instrument. Only breath test instruments listed on the US Department of Transportation Conforming Products List of Evidential Breath Measurement Devices will be evaluated. All materials, equipment and supplies necessary to evaluate an instrument must be received and recorded prior to beginning the evaluation process. New instrument evaluation requirements are outlined in Rule 11D-8.003(4), FAC, and requirements for evaluations of changes, modifications, or new options will be determined by the Department based on the nature of the change, modification or new option. Results of all evaluations shall record: The purpose for and subject of the evaluation. The personnel involved and their specific role. The make, model and serial number of the instrument. The software which controls the instrument and the options and settings available. The make, model and serial numbers, and the operating conditions of any external equipment and instrumentation (such as simulators) used in the evaluation process. The testing location and operating conditions (such as room temperature). All options, changes and modifications involved in the evaluation. A conclusion to approve, disapprove, or withhold approval as inconclusive pending additional information, and the reasons for such conclusion. Each instrument evaluated must be properly calibrated by the manufacturer prior to evaluation, and a certificate of calibration must be submitted by the manufacturer. Each instrument evaluated must be operated in accordance with the manufacturer's operator/technician manual. Each instrument will be evaluated at each of the following alcohol concentrations: 0.020g/210L, 0.050g/210L, 0.080g/210L, 0.150g/210L, 0.300g/210L, and 0.400g/210L. Each instrument will also be evaluated for its capability to detect acetone interference and mouth alcohol as prescribed by the manufacturer, and for its capability to properly analyze an alcohol free sample (0.00g/210L). Each instrument evaluated will be subjected to at least fifty (50) repetitions of an alcohol free test, an acetone interference test, and a mouth alcohol test. The alcohol free test will be conducted by analyzing a 500 mL of deionized or distilled water. The water will be analyzed by gas chromatography prior to the test to verify that it contains no alcohol. All results must be 0.000g/210L; The acetone interference test will be conducted by analyzing an alcohol free simulator (deionized or distilled water) containing 3 mL of acetone stock solution. The acetone stock solution will be prepared using distilled or deionized water and adding 77 mL of reagent grade acetone per liter of water, and will be analyzed by gas chromatography prior to the evaluation to verify that it contains only acetone. The results must be 0.000g/210L and the acetone detected by the correct instrument response(s) prescribed by the manufacturer to denote the interferent. The mouth alcohol test will be conducted by first analyzing an alcohol free subject's breath sample, and another breath sample after the subject has rinsed their mouth with an alcohol solution. The first breath sample result must be 0.000g/210L, and the mouth alcohol breath sample must be detected by the correct instrument response(s) prescribed by the manufacturer to denote mouth alcohol. Each instrument evaluated will be subjected to at least fifty (50) repetitions analyzing the following concentrations of either an alcohol reference solution or an alcohol stock solution: 0.020g/210L, 0.050g/210L, 0.080g/210L,, 0.150g/210L, 0.200g/210L, 0.300g/210L, and 0.400g/210L. In order to establish the accuracy of an evaluated instrument, the results of each analysis must fall within the following ranges: 0.020g/210L range is 0.015 to 0.025g/210L; 0.050g/210L range is 0.045 to 0.055g/210L; 0.080g/210L range is 0.075 to 0.085g/210L; 0.150g/210L range is 0.145 to 0.155g/210L; 0.200 range is 0.190 to 0.210g/210L; 0.300g/210L range is 0.285 to 0.315g/210L; and the 0.400g/210L range is 0.380 to 0.420g/210L. In order to establish the precision of an evaluated instrument, the average standard deviation for the above results will be calculated and must not exceed the manufacturer's specifications for precision. Each lot of alcohol reference solution or alcohol stock solution will be analyzed by gas chromatography in accordance with the procedures in Rule 11D-8.0035(2)(a), FAC, before being used in the evaluation process. Any option that is available with the instrument will be evaluated according to the manufacturer's recommendation for utilizing that option. If an option can be evaluated according to the methods stated above, then those procedures will be followed. If an option cannot be evaluated according to the methods stated above, the manufacturer must provide the information necessary to evaluate that option, and that option will be evaluated according to the manufacturer's recommendation. The procedure for evaluating the option and the results of the evaluation will be recorded. The Department will determine whether to conduct additional tests or studies necessary to properly evaluate an instrument or any of its options, or additional evaluations for quality assurance or research purposes. The Department will record the procedures used and the results obtained. In 2001, U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) determined that CMI, Inc.'s Intoxilyzer 8000 met all of the requirements for placement on its Conforming Products List of Evidential Breath Measurement Devices (CPL) referenced in the Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001. On October 3, 2002, an amendment to the CPL was published in the Federal Register (at 67 Fed. Reg. 620191).4/ Among the "[e]vidential [b]reath [m]easurement [d]evices" added to the CPL by this amendment was the Intoxilyzer 8000. A Form 34 evaluation of the Intoxilyzer 8000 was conducted by FDLE's Alcohol Testing Program on April 30, 2002 (April 2002 Evaluation).5/ Two Intoxilyzer 8000s--one bearing Serial Number 80-000208 and the other bearing Serial Number 80- 000209--were assessed. The testing was not successfully completed. A written report of the evaluation was generated on or about July 29, 2002. It described the following "exceptions" that had occurred during the evaluation: INSTRUMENT 80-000208: The breath test affidavit failed to print completely on the first evidential breath test with external printer attached. On the second test, the affidavit printed correctly. Probable cause: software. 3. Three exceptions occurred during the mouth alcohol tests. On sample #5, the sample was introduced at the wrong time, on sample #12, the sample was introduced improperly, and on sample #35, a cell phone was used next to the instrument, causing a radio interference flag. 3. During the 0.20 simulator tests, the results were noted to be consistently dropping in value. After the 20th sample, a 0.40 simulator was attached. The results for this simulator were low and erratic. All connections were checked. It was then noted that air was being taken from the simulator. Blocking the breath tube resulted in closer to target values. This is symptomatic of a failed one-way valve. Testing was terminated at this point. INSTRUMENT 80-000209 One exception occurred during the mouth alcohol tests. On sample #48, the sample was introduced improperly. During the 0.02 simulator tests, the instrument reported interferent at simulator sample #42. During simulator sample #44, the instrument reported interferent and an alcohol reading during the subsequent airblank. Testing was suspended and the room checked for sources of interferents. The instrument was purged for 15 minutes. The instrument reported interferent when none was known to be present for two more 0.02 samples and for three 0.05 simulator samples. Mr. Toby Hall, CMI Inc., was contacted for guidance. He attributed the exceptions to software failure. Testing was terminated. Shortly after the April 2002 Evaluation, FDLE published in the May 17, 2002, edition of Florida Administrative Weekly a Notice of Development of Proposed Rules, advising that it was proposing to make the following changes to rule 11D-8.003 (with the underlined language representing proposed additions to the rule), as well as changes to other rules in rule chapter 11D-8: 11D-8.003 Approval of Breath Test Methods and Instruments. No change. The Department has approved the following breath test instrument(s) for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series – including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software approved by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2002. through (4)(e) No change. A schematic design and a mechanical drawing of the instrument; through (j) No change. (5) through (6) No change. (7) The availability or approval of new instruments, software, options or modifications does not affect the approval status or reliability of previously approved instruments, software, options or modifications. The notice indicated that, "if requested in writing and not deemed unnecessary by the agency head, a rule development workshop [would] be held [at] 10.00 a.m. [on] June 4, 2002." On May 29, 2002, while the rulemaking process was still ongoing, FDLE's Alcohol Testing Program conducted another Form 34 evaluation of the Intoxilyzer 8000 (May 2002 Evaluation), using the same two instruments (bearing Serial Numbers 80-000208 and 80-000209) that had been the subject of the April 2002 Evaluation, but they were newly calibrated by the manufacturer (CMI, Inc.) and had different software. The testing of the Intoxilyzer 8000 bearing Serial Number 80-000209 was aborted due to an "electrical short circuit" which caused it to emit smoke. The assessment of the Intoxilyzer 8000 bearing Serial Number 80-000208, however, "proceeded to completion as outlined in the Report based on work done on that date,"6/ as the parties stipulated in Admitted Fact 13 set forth in their Pre- Hearing Stipulation. That "Report" indicated, among other things, that the testing yielded the following "Analytical Results" and "Conclusion": Analytical Results All results met the requirements of FDLE/ATP Form 34 Instrument Evaluation Procedures for accuracy, and all instrumentation performed within the manufacturer's specification for precision of 0.003. All results for the acetone interferent test were 0.000g/210L and acetone was detected by the correct instrument response prescribed by the manufacturer to denote the interferent. Mouth alcohol was correctly determined by the instrumentation. Conclusion The results of this evaluation establish that the CMI, Inc. Intoxilyzer 8000 instrumentation produces accurate and reliable breath alcohol test results. Based on the results of this evaluation, the Florida Department of Law Enforcement Alcohol Testing Program approves the infrared light absorption method as it exists in the CMI, Inc. Intoxilyzer 8000 instrumentation using software version 8100.10. The CMI, Inc. Intoxilyzer 8000 instrumentation is approved for use as evidentiary breath instrumentation in the State of Florida. Pursuant to FDLE's interpretation of the version of rule 11D- 8.003 then in effect (an interpretation with which Petitioners have, in this proceeding, expressed their disagreement), the successful completion of Form 34 testing on one of the two Intoxilyzer 8000s that CMI (as required by subsection (4)(c) of the rule) had submitted was sufficient to warrant FDLE's approval of the Intoxilyzer 8000 under the then-existing version of the rule. By letter dated July 8, 2002, William Harrold, the Joint Administrative Procedures Committee's (JAPC's)7/ Chief Attorney, advised Fern Rosenwasser of FDLE's Office of General Counsel that he had "completed a preliminary review of [the proposed amendments to rule chapter 11D-8][8/] and ha[d] . . . comments for [her] consideration" regarding proposed rules 11D- 8.003(7) and 11D-8.017 (and no other matters), which comments were set forth in the letter. Significantly, Mr. Harrold did not request any further information concerning FDLE's justification for amending rule 11D-8.003(2) to list the Intoxilyzer 8000 as an FDLE-approved breath test instrument. On July 18, 2002, Ms. Rosenwasser sent Mr. Harrold the following letter in response to his July 8, 2002, letter: I write in reference to the preliminary review of [FDLE's proposed amendments to rule chapter 11D-8]. I have included FDLE's comments in each individual rule section to facilitate your review. 11D-8.003(7) This rule provision states: The availability or approval of new instruments, software options or modifications does not affect the approval status or reliability of previously approved instruments, software, options or modifications. [Comment by Mr. Harrold:] Under the "map tack" provisions of § 120.536, F.S., a specific law implemented is required for each rule provision. Provide citation to the statutory authority that authorizes this rule provision. The statement in the rule appears overly broad. If all of the new instruments, software, options or modifications were examined since the breathalyzers were first used there is a high probability that the approval status of previously approved instruments, software, options and modifications have been affected. Response: The approval of another instrument does not affect the "approval status" of a previously approved instrument. If the previously approved instrument['s] reliability is in question, then there are tests and procedures to determine such and to terminate approval status. This section merely reaffirms that approval of a new instrument does not invalidate the approval of a previous instrument. Language revised to read: (7) The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. 11D-8.017 [Comment by Mr. Harrold:] This rule provision incorporates various forms. FDLE/ATP Form 14, Breath Test Result Affidavit was not submitted with the rule package and must be supplied. Response: Form submitted in Notice of Proposed Rulemaking package. Eight days later, FDLE published in the "Proposed Rules" section of the July 26, 2002, edition of the Florida Administrative Weekly its proposed amendments to rule chapter 11D-8, as revised in the manner described in Ms. Rosenwasser's July 18, 2002, letter to Mr. Harrold (2002 Proposed Rules). The "full text of the [2002] [P]roposed [R]ules" was published, accompanied by, among other things, a statement that, if requested within 21 days, a hearing on the 2002 Proposed Rules would be held on August 21, 2002. On October 16, 2002, JAPC issued a Certification concerning the 2002 Proposed Rules, certifying that: The adopting agency has responded in writing to all material and timely written comments or written inquiries made on behalf of the Committee regarding the [2002 Proposed Rules]; That all statutory rulemaking requirements of Chapter 120, F.S. have been complied with; There is no administrative determination under subsection 120.56(2), F.S. pending on any rule covered by this certification; All rules covered by this certification are filed within the prescribed time limitations of paragraph 120.54(3)(e), F.S. They are filed not less than 28 days after the notice required by subsection 120.54(3)(a), F.S.; and [a]re filed not more than 90 days after the notice.[9/] The Certification noted that the 2002 Proposed Rules "remain[ed] subject to committee review pursuant to the provisions of section 120.545." That same day (October 16, 2002), FDLE filed with the Secretary of State the 2002 Proposed Rules, along with the following Summary of Proposed Rule[s], Justification of Proposed Rule[s], Federal Comparison Statement, and Summary of Hearing: SUMMARY OF PROPOSED RULE[S] Proposed revisions to Chapter 11D-8, F.A.C. pertain to the regulation and implementation of Florida's implied consent and alcohol testing program. The proposed revisions govern definitions based on scientific and common usage; standards for issuance and regulation of permits; evaluation and approval of breath and blood alcohol analysis methods; approval, use, and inspection of breath test instruments and records; and training requirements and qualifications. JUSTIFICATION OF PROPOSED RULE[S] The proposed revisions are necessary to accommodate approval of a new breath test instrument for use in the State of Florida that employs new technology with expanded capabilities, to implement certification of breath test instructors and approval of breath test courses by the Criminal Justice Standards and Training Commission, and to ensure the qualifications and proficiency of blood alcohol analysts. FEDERAL COMPARISON STATEMENT There are no federal requirements dealing with this topic. SUMMARY OF HEARING The proposed rules were noticed in the Florida Administrative Weekly on July 26, 2002, for a hearing to be held on August 21, 2002, if requested. FDLE received no requests for a public hearing and none was conducted. One written comment was submitted and is summarized below. Stuart I. Hyman, P.A., objects to the proposed revision because information relating to breath test instrumentation software and technical components are confidential and exempt from public records disclosure. FDLE's response restated the exemption and provided the applicable statutory authority. The Justification of Proposed Rule[s] that FDLE filed with the Secretary of State had previously been submitted to JAPC for its review and consideration. The 2002 Proposed Rules became effective November 5, 2002.10/ On November 12, 2002, the Department of State received the following letter from Ms. Rosenwasser: Please accept this request from [FDLE} for a technical change to Rule 11D-8.003(6). The change is necessary since FDLE/ATP Form 34 does in fact reflect a March 2002 revision date, and is referenced as such throughout the rules. Effective November 5, 2002, the 2001 version was replaced by the 2002 version. Information concerning the April and May 2002 Evaluations was not requested by, nor shared with, JAPC during the rulemaking process in 2002. FDLE engaged in rulemaking in 2004 to again make changes to rule 11D-8.003, including subsection (2) of the rule. These changes became effective December 9, 2004. The rule has not been amended since. Accordingly, the existing version of rule 11D-8.003 is the version that emerged from the rulemaking process in 2004.
Findings Of Fact Petitioners are defendants in criminal cases presently pending in Lee County, Florida, having each been charged with the offense of driving while under the influence of an alcoholic beverage. Subsequent to their arrests, they took a breathalyzer test on a CMI Intoxilyzer, Model 4011AS, and have been informed that the prosecution intends to introduce evidence derived from these tests at their trials. Respondent has adopted Rules 10D-42.22, 42.23, and 42.24, Florida Administrative Code, under the authority of Sections 316.1932(1)(b)1, 316.1934(3), 327.352(1)(d) and 327.354(3), Florida Statutes (1984 Supp.) Rules 10D-42.22 and 42.23 provide as follows: 10D-42.22 Chemical Breath Testing Methods - Approval. Chemical breath testing methods for determining blood alcohol content shall be approved by the Department, based on scientific principles which will establish performance requirements and methods for evidential breath testing. Evidential breath testing involves methods which measure the alcohol content of deep lung samples of breath with sufficient accuracy for evidential purposes. . . and for which instructors have been trained as stipulated in 10D-42.27. 10D-42.23 Registration - Chemical Test Instruments or Devices. All chemical breath test instruments or devices used for breath testing under provisions of Chapter 316 and 327, Florida Statutes, shall be previously checked, approved for proper calibration and performance, and registered by authorized personnel of the department, by trade name, model number, serial number and location, on forms provided by the Department. All such chemical test instruments or devices registered hereunder shall be checked at least once each calendar year (January 1 through December 31) for accuracy and reproducibility. Rule 10D-42.24 specifies the operational and preventive maintenance procedures for approved chemical breath testing instruments enumerated therein including the CMI Intoxilyzer, Model 4011AS. Before approving a chemical breath testing instrument and including it in Rule 10D-42.24, Respondent conducts a series of tests on a sample instrument provided by the manufacturer. These tests include vapor and acetone tests as well as blood breath correlations. The purpose of these tests is to determine if the instrument gives a reliable measurement of blood alcohol levels based on deep lung samples of breath. All manufacture_s and all states use a ratio of 2100 to 1 in calibrating these instruments. That is, the level of alcohol in the lungs as measured by the instrument is multiplied by 2100 to derive the blood alcohol content level. If the instrument proves reliable in determining a known blood alcohol level within acceptable tolerance levels it is added to the approved list. After an instrument is added to the approved list, each individual device must also be tested by Respondent before it can be used in this state for evidentiary purposes. The purpose of these tests is to exactly calibrate each device since there is usually a slight variation between devices from the 2100 to 1 general ratio. Required monthly preventive maintenance and annual inspection of each device insures that the specific calibration for the device is maintained, or corrected if necessary. Operators of these devices must complete a forty hour training program and also an annual six hour requalification course. Respondent's rules do not set forth or require the use of this 2100 to 1 ratio in the calibration process. However, since this is the calibration ratio used by manufacturers, Respondent does test that ratio and make adjustments in individual instrument calibrations, when necessary. The accuracy of blood alcohol level measurements obtained by using these instruments can be affected by factors such as a person's body weight and composition, individual absorption and elimination rates, the time the measurement is made in relation to the time when the person was driving, and the time elapsed since alcohol was consumed. However, by using estimates such as the "elimination rate" of a person and extrapolating back to the time of driving from the time the test is administered, blood alcohol levels which existed while driving can be estimated.
Findings Of Fact This cause comes on for consideration based upon the petition of John C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide. The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs. On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted. This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given. In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels. In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion. The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.) When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks. Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated. His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations. These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded. Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated. The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected. The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard. In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive. In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project. The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
Recommendation It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida. DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: E. G. Couse, Esquire Grace & Couse, P.A. Suite 202, Courtney Building Post Office Drawer 1647 Fort Myers, Florida 33902 L. Caleen, Jr., Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Beverly E. Myers, Esquire Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Has Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2012), by driving a vehicle while impaired, and if so, what penalty should be imposed?
Findings Of Fact Respondent, James H. Rogers, is a corrections officer certified by the State of Florida Criminal Justice Standards and Training Commission. Mr. Rogers was issued correctional certification number 41789 on September 6, 1989. Respondent was driving a vehicle in Lowndes County, Georgia, early in the morning on March 23, 2013, when he failed to stop at a red light when making a right-hand turn. Georgia State Trooper (then Cadet) Jason Fletcher and Corporal Chris Kelch were on road patrol in the area and observed Respondent’s failure to come to a complete stop. They made the decision to pull Mr. Rogers over for the observed traffic offense. Trooper Fletcher was a new cadet at the time of the stop. In fact, March 23, 2013, was during the first month of his field training, and he was accompanied by a field training officer, Corporal Kelch. At the time of the stop, Trooper Fletcher had approximately two years of experience as a police officer and sheriff’s deputy before attending trooper school. Trooper school is 32 weeks long. Trooper Fletcher had completed his classroom portion of training and was completing his field training. Corporal Kelch graduated from Trooper School in August 2007, and acted as Trooper Fletcher’s field training officer. Both men have training in traffic-related issues and field sobriety and roadside evaluation. Corporal Kelch is a certified breath-test operator for the State of Georgia. Fletcher and Kelch stopped Respondent at approximately 2:34 a.m. When they pulled Respondent over, his car was on the entrance ramp to Interstate 75. There is a limited shoulder on the road and the ramp has a downward slope. Trooper Fletcher got out of his patrol car and approached the driver’s side of Respondent’s car. Corporal Kelch also got out and was at the rear passenger side of Roger’s vehicle. When Trooper Fletcher made contact with Respondent, he immediately smelled the odor of alcohol on Respondent’s breath and noticed that his speech was somewhat slurred. While Respondent has a decidedly “southern drawl,” not all of the speech pattern heard on the audio portion of the dash-cam video of the encounter can be attributed to his accent. When Trooper Fletcher asked Mr. Rogers to exit his car, he was a little unsteady on his feet. Corporal Kelch also observed that his eyes were bloodshot and watery. Upon Respondent’s exit from the car, Corporal Kelch went over to shut the car door for safety reasons and confirmed that the car had no other occupants. Trooper Fletcher asked Respondent if he had been drinking, and Mr. Rogers responded by naming the locations he had visited that night. He admitted to having about one and one-half drinks. There are multiple field sobriety tests available to patrol officers when investigating a person for impaired driving. Some of those require a subject to walk and turn, or to stand on one leg. However, given the uneven terrain where the traffic stop was made, both officers deemed it unadvisable to use those field sobriety tests, because they are meant to be performed on a level surface. Moving to another location to conduct the field sobriety tests was not an option because it would require either leaving Mr. Rogers’ car unattended with no patrol lights to alert other drivers that it was on the entrance ramp, or allowing Mr. Rogers, a possibly impaired driver, to get back behind the wheel. Trooper Fletcher attempted to perform a horizontal gaze nystagmus test, but Mr. Rogers was unable or unwilling to follow the directions given to him, so the test was not completed. Trooper Fletcher continued to talk to Mr. Rogers during the stop, and eventually Respondent admitted that driving was not a good decision, and that he had consumed more alcohol than he had originally indicated, including both beer and mixed liquor. Although he admitted drinking both beer and mixed drinks, he could not recall what type of mixed drinks he had consumed. Based upon Respondent’s original failure to stop at the traffic light, the smell of alcohol on his breath, his slurred speech and unsteady gait, his inability to follow directions, and his admission to drinking several alcoholic drinks, both officers believed Mr. Rogers was impaired. As a result, Trooper Fletcher placed him under arrest for driving under the influence (DUI). Respondent was handcuffed and Trooper Fletcher read him the Georgia Implied Consent notice before placing him in the back of the patrol car. Mr. Rogers remained in the patrol car with his hands cuffed behind his back while the officers inventoried his car and arranged for a tow truck to remove it from the interstate ramp. Trooper Fletcher then drove to the jail. While in the car, both men were able to observe Mr. Rogers through the rearview mirror and were able to hear any sounds that he might make. The first encounter with Mr. Rogers occurred at approximately 2:34 a.m., and a breath-alcohol test was administered to him at approximately 3:51 a.m. The officers were able to observe Mr. Rogers for more than the required 20-minute waiting period before administering the test. Respondent had no access to any alcoholic beverages from the time he was stopped until the alcohol breath test was administered. There was no evidence he tried to insert anything in his mouth, or that he tried to vomit or regurgitate anything that he previously ingested. Trooper Fletcher and Corporal Kelch were able to observe him both in the patrol car and in the jail for more than 20 minutes leading up to the administration of a breath-alcohol test. In order to have a valid sample, a person must blow a minimum of 1.1 liters of deep lung air into the tube of the machine. An average male can usually exhale approximately 3.1 liters of air. Mr. Rogers’ first sample was invalid because he did not provide sufficient volume for a successful test. There was no indication that Respondent had a medical problem that would prevent him from providing enough air for the test. Ultimately, Mr. Rogers was able to provide two valid breath samples at approximately 3:51 a.m. A breath-alcohol test consists of two breath samples. The breath-alcohol test administered to Mr. Rogers had readings for breath-alcohol levels of .125 and .124g/ml. The intoxilyzer instrument was working properly at the time of Respondent’s breath samples. It had been inspected by Donald Whitaker, the area supervisor responsible for the inspection and maintenance of breath-testing instruments in Lowndes County, the day before. It remained in good working order at its next scheduled inspection. Mr. Rogers was charged with failure to obey a traffic control device and driving under the influence. In his answers to requests for admissions, Respondent admitted that on or about November 20, 2007, he was adjudicated guilty for the offense of driving under the influence by the County Court for the Third Judicial District in and for Hamilton County, Florida. He also admitted receiving a Letter of Acknowledgement from the Criminal Justice Standards and Training Commission regarding a charge of Pled Guilty to Driving Under the Influence in CJSTC Case No. 25499. No evidence was submitted to establish the meaning or significance of a “Letter of Acknowledgement.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent violated section 943.1395(7) as defined in rule 11B- 27.0011(4)(b). It is further recommended that the Commission suspend Respondent’s certification for a period of one year, followed by three years of probation, subject to such terms and conditions as the Commission may in its discretion deem appropriate. DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Charles Marcus Collins, Esquire Collins Law Firm Post Office Box 541 Monticello, Florida 32345 (eServed) Dean Register, Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas Kirwan, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed)
The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Division accepts the Findings of Fact as set forth in the Hearing Officer's Recommended Order dated October 24, 1985
Conclusions COMES NOW, the Director of the Division of Alcoholic Beverages and Tobacco and hereby enters this the Final Order of the Division in the above-styled cause pursuant to authority vested by the Beverage Law and Chapter 120, Florida Statutes, as follows:
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Respondent, Markeith Daniels (Respondent or Daniels), is a correctional officer certified by the Criminal Justice Standards and Training Commission, having been issued certificate number 254286. At the time of the events giving rise to these proceedings, Respondent was employed by the Florida Department of Corrections as a correctional officer assigned to the Dade Correctional Institution. On or about November 2, 2007, then-Deputy (now Lieutenant) Thomas Webb stopped Respondent in Apalachicola for an improper start of the vehicle he was driving. After approaching Respondent's car, Lt. Webb could smell alcohol on his breath. Lt. Webb asked if Respondent had been drinking, and Respondent indicated he had had a few beers. Lt. Webb asked Respondent to step out of the car and perform selected field sobriety tests. Lt. Webb testified that, based upon his training and experience, Respondent was under the influence of alcohol. He failed the field sobriety tests because he did not wait for complete directions to be given before starting the tests, and did not follow directions once given. For example, on the "one- leg stand" test, he did not count out loud as instructed, began counting at 4 and at the end of what was to be 30 seconds, Respondent had only counted to 22. Daniels' vehicle was searched. Lt. Webb found two bottles of Verdi Spumante, an alcoholic beverage, in the car. One bottle was unopened while the other was open and empty. Lt. Webb also found two cans of cold, Natural Lite beer in the back seat. Respondent claimed that the beer had been taken from a refrigerator at approximately 9:30 p.m., and that he had given several beers from the twelve-pack to a friend. Daniels was placed under arrest and transported to the Franklin County Jail, where his breath was tested for alcohol content. Protocols for breath alcohol testing require two samples to be given and tested. The first breath sample given by Respondent registered a reading of .121 at 4:28 a.m. The machine provides a two-minute break between breath sample attempts, and this two-minute window is recorded on the breath alcohol test affidavit as "air blanks," at 4:29 and 4:30. From the air blank recorded at 4:30, Respondent had three minutes to provide an additional sample. After three minutes, no sample had been provided, and Lt. Webb pressed the "refusal" button. Respondent would have been able to see the results from the first breath sample before being asked to give the second one. The criminal charges against Daniels were dismissed for reasons that are not clearly identified in this record.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Markeith Daniels has violated Section 943.13(7), Florida Statutes, and that Respondent's license be placed on probation for a period of one year, with terms to be determined by the Commission. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2009. COPIES FURNISHED: Sharon S. Traxler, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Markeith L. Daniels Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
