The Issue The issue is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of November, 2011.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Since 1990, Respondent has operated a recreational club in Broward County, Florida. Horse riding is among the activities offered at the club. Horses owned by Respondent and stabled on the club's premises are used by club members. Respondent has sold approximately six horses during the time he has operated the club. Two of these sales were made to Orlando "Pete" Trilla and his wife. The first of these two sales to the Trillas was made on or about December 31, 1994, when Respondent sold a quarter horse named Chance to the Trillas for $1,800.00. Pursuant to the Trillas' instructions, Respondent delivered Chance to Troy Doniny's stables. Respondent provided the Trillas with all of the paperwork that he (Respondent) had regarding Chance, including a report of a negative Equine Infectious Anemia (EIA) Laboratory Test administered August 20, 1993, and a report of a subsequent negative EIA Laboratory Test administered within 12 months of the date Respondent relinquished possession of Chance to the Trillas. (Respondent, who does not sell horses on a regular basis, did not retain copies of the paperwork he provided the Trillas.) The Trillas had difficulty handling Chance. In or about October of 1995, they asked Respondent if they could exchange Chance for another horse. The Trillas subsequently entered into an agreement with Respondent, which provided that the Trillas were to receive a Tennessee Walker named Walker from Respondent in return for Chance plus $1,000.00. On or about October 30, 1995, Respondent, through his agent, Daryl Woods, delivered Walker to the Trillas at the Trillas' residence in Palm Beach County, Florida. 3/ At the time of delivery, the Trillas were provided with all of the paperwork that Respondent had regarding Walker, including a report of a negative EIA Laboratory Test administered within the previous 12 months. 4/ (Respondent did not retain copies of the paperwork he provided the Trillas.) After receiving Walker, the Trillas relinquished possession of Chance to Woods. Chance returned to Respondent's club on Wood's trailer. The Trillas were dissatisfied with Walker. They complained to Respondent that Walker had "bad feet" and asked that Respondent return Chance, as well as the money that they had paid to obtain Walker. Respondent refused. The Trillas subsequently filed a civil action against Respondent. A trial was scheduled. The Trillas' lawsuit was dismissed when they failed to appear at trial.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing all charges against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1996.
The Issue Whether Respondent raced animals that were impermissibly medicated or determined to have prohibited substances present, resulting in a positive test for such medications or substances in violation of section 550.2415(1)(a), Florida Statutes (2016),1/ as alleged in the administrative complaints; and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. Respondent is the holder of Pari-Mutuel Wagering Individual Occupational License No. 1572955-1021, which authorizes her to train greyhounds in Florida pursuant to section 550.105. Respondent has been licensed by Petitioner since 2009. At all times relevant to the charges at issue in these proceedings, Respondent was subject to chapter 550 and the implementing rules codified in Florida Administrative Code Chapter 61D-6. The Administrative Complaints As noted above, Petitioner served Respondent with four administrative complaints charging her with a total of seven counts of violating statutes and rules governing pari-mutuel racing by impermissibly medicating or administering prohibited substances to racing greyhounds for which she was the trainer of record for races held at the PBKC on specific dates between September 27, 2016, and January 28, 2017. DOAH Case No. 17-4870 On November 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-049902 and 2016-051419. This administrative complaint was assigned DOAH Case No. 17-4870. Count I of this administrative complaint, DBPR Case No. 2016-049902, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for dimethyl sulfoxide. Count II of this administrative complaint, DBPR Case No. 2016-051419, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4871 On November 30, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-053062 and 2016-053069. This administrative complaint was assigned DOAH Case No. 17-4871. Count I of this administrative complaint, DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Count II of this administrative complaint, also part of DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Count III of this administrative complaint, DBPR Case No. 2016-053069, charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. DOAH Case No. 17-4872 On December 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2016-056707. This administrative complaint was assigned DOAH Case No. 17-4872. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4873 On February 16, 2017, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2017-006845. This administrative complaint was assigned DOAH Case No. 17-4873. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. The Alleged Violations and Respondent's Defenses Racing Greyhound Urine Sample Collection and Testing PBKC is a facility operated by a permit holder authorized to conduct pari-mutuel wagering in Florida under chapter 550. Respondent trained and raced greyhounds at PBKC between September 27, 2016, and January 28, 2017, the time period relevant to these consolidated proceedings. All violations charged in the administrative complaints are alleged to have occurred at PBKC. To enforce the statutes and rules prohibiting the impermissible medication or administration of prohibited substances to racing greyhounds, Petitioner collects urine samples from racing greyhounds immediately before races in which they are participating. At the PBKC, urine samples from racing greyhounds are collected in a restricted area called the "ginny pit." Jessica Zimmerman, chief veterinary assistant for Petitioner, described Petitioner's urine sampling process. The samples are collected by veterinary assistants using clean cups that are unsealed immediately before being used to collect the samples. When each urine sample is collected, the veterinary assistant checks the identification number tattooed on the greyhound's ear and completes a PMW 503 form.5/ Here, the evidence establishes that the urine samples collected that have given rise to this proceeding were collected pursuant to this process.6/ The PMW 503 form shows the pari-mutuel wagering facility for which it was prepared——in these consolidated cases, for the PBKC——and lists the date, race, and post number of the greyhound; the greyhound's name and tattoo number; the time the sample was collected; the trainer's name; the collector's initials; and a unique sample number. Here, the completed PMW 503 forms and other evidence established that Respondent was the trainer of record for the following greyhounds that participated in specified races held on specific dates and from which urine samples were taken: ATASCOCITA ACURA, tattoo no. 6328024A, urine specimen no. 105889, twelfth race on September 27, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108583, second race on October 15, 2016; ATASCOCITA EDGE, tattoo no. 65280114G, urine specimen no. 108633, ninth race on October 19, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108304, tenth race on October 19, 2016; RCK MOHICAN, tattoo no. 65640124A, urine specimen no. 113568, eighth race on November 26, 2016; ATASCOCITA HAPPY, tattoo no. 65573124J, urine specimen no. 125184, ninth race on January 28, 2017. Once a urine sample has been collected, the container is sealed with tape to maintain the integrity of the sample, and a tag on which the sample number is written is attached to the container holding the collected urine sample.7/ The urine samples are placed in a freezer at a restricted area at Petitioner's office and held there until they are shipped to the University of Florida Racing Laboratory ("UF Lab")8/ for testing for the presence of impermissible medications or prohibited substances. Petitioner is in constant possession of the samples until they are shipped to the UF Lab. The containers in which the samples are shipped are securely locked. Here, the evidence established that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were collected, sealed, stored, and shipped to the UF Lab pursuant to the above-described protocol. Once the samples are received at the UF Lab, laboratory staff inspect the samples to ensure that the evidence tape has adhered to the sample cup, cross-check the sample numbers with those on the accompanying PMW 503 form, identify any discrepancies with respect to date and sample number and record them on a discrepancy form,9/ and log the samples into the Laboratory Information Management System. Thereafter, the samples are assigned an internal alphanumeric number and moved into a limited-access area, where they are stored while laboratory staff perform testing. The samples are stored in this area until they either are confirmed as positive for an impermissible medication or a prohibited substance——in which case they are moved to a specific freezer for storage——or confirmed as negative for a medication or prohibited substance and thereafter discarded. As part of the sample testing process, an aliquot is taken and tested for an impermissible medication or a prohibited substance. If the test initially indicates a positive result for an impermissible medication or a prohibited substance, a confirmatory test is performed to determine the quantity of the medication or substance in the sample. The confirmatory testing process entails running calibrated samples, positive controls to ensure that the extraction process was accurate, and negative controls to ensure that there is no carryover of the medication or substance through the confirmatory testing process. If the confirmatory testing process yields a positive result for an impermissible medication or prohibited substance, the documentation is subjected to a two-step supervisory review, followed by generation of a Report of Positive Result, which is transmitted to Petitioner. Here, the evidence establishes that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were logged, stored, and tested at the UF Lab pursuant to this protocol. The Association of Racing Commissioners International has adopted the Uniform Classification Guidelines for Foreign Substances ("ARCI Guidelines"). Classes range from class I drugs, which are stimulants without therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Caffeine is a central nervous system stimulant and class II drug. Under rule 61D-6.007(3)(a), levels of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of caffeine at a urinary concentration greater than 200 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theobromine is a diuretic, smooth muscle relaxant, and class IV drug. Under rule 61D-6.007(3)(b), levels of theobromine at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of theobromine at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theophylline is a bronchodilator, smooth muscle relaxant, and class III drug. Under rule 61D-6.007(3)(b), levels of theophylline at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or a prohibited substance. Conversely, levels of theophylline at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or a prohibited substance. Dimethyl sulfoxide is an anti-inflammatory agent and class IV drug. Dimethyl sulfoxide is a non-threshold drug, which means that it is not permitted to be in a racing greyhound's body at any concentration. Therefore, the detection of any concentration of dimethyl sulfoxide in a urine sample is reported to Petitioner as an impermissible medication or a prohibited substance. Pursuant to section 550.2415(1)(c), the finding of a prohibited substance in a race-day specimen taken from a racing greyhound constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race. Urine Specimen Test Results Urine Specimen No. 105889 - ATASCOCITA ACURA As noted above, urine specimen no. 105889 was collected by Petitioner's veterinary assistant from ATASCOCITA ACURA, tattoo no. 6328024A, before the twelfth race on September 27, 2016. UF Lab gas chromatography-mass spectrometry testing of urine specimen no. 105889 showed a urine concentration of 210 micrograms per milliliter of dimethyl sulfoxide. The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting this test result for urine specimen no. 105889. As discussed above, dimethyl sulfoxide is a non- threshold drug. Accordingly, the finding of 210 micrograms per milliliter of dimethyl sulfoxide in urine specimen no. 105889 establishes that ATASCOCITA ACURA carried an impermissible medication or a prohibited substance in its body during the twelfth race on September 27, 2016. Urine Specimen No. 108583 – ATASCOCITA DALT As noted above, urine specimen no. 108583 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the second race on October 15, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 4.343 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 728 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 1.578 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting these test results for urine specimen no. 108583. The findings of urine concentrations of 4.343 +/- 0.03 micrograms per milliliter of caffeine, 728 +/- 90 nanograms per milliliter of theobromine, and 1.578 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA DALT carried these impermissible medications or prohibited substances in its body during the second race on October 15, 2016. Notwithstanding that the test results for urine specimen no. 108583 showed the presence of theobromine and theophylline in ATASCOCITA DALT during the second race on October 15, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the second race on October 15, 2016. Urine Specimen No. 108633 – ATASCOCITA EDGE As noted above, urine specimen no. 108633 was collected by Petitioner's veterinary assistant from ATASCOCITA EDGE, tattoo no. 65280114G, before the ninth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 822 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 625 +/- 80 nanograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting these test results for urine specimen no. 108633. The findings of urine concentrations of 822 +/- 90 nanograms per milliliter of theobromine and 625 +/- 80 nanograms per milliliter of theophylline establish that ATASCOCITA EDGE carried these impermissible medications or prohibited substances in its body during the ninth race on October 19, 2016. Urine Specimen No. 108304 – ATASCOCITA DALT As noted above, urine specimen no. 108304 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the tenth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108304 showed a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine. This concentration exceeds the non-reportable level for this substance established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting this test result for urine specimen no. 108304. The finding of a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine establishes that ATASCOCITA DALT carried this impermissible medication or prohibited substance in its body during the tenth race on October 19, 2016. Urine Specimen No. 113568 – RCK MOHICAN As noted above, urine specimen no. 113568 was collected by Petitioner's veterinary assistant from RCK MOHICAN, tattoo no. 65640124A, before the eighth race on November 26, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.532 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 3.434 +/- 0.09 micrograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.374 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated December 13, 2016, reporting these test results for urine specimen no. 113568. The findings of 8.532 +/- 0.03 micrograms per milliliter of caffeine, 3.434 +/- 0.09 micrograms per milliliter of theobromine, and 8.374 +/- 0.08 micrograms per milliliter of theophylline establish that RCK MOHICAN carried these impermissible medications or prohibited substances in its body during the eighth race on November 26, 2016. Notwithstanding that the test results for urine specimen no. 113568 showed the presence of theobromine and theophylline in RCK MOHICAN during the eighth race on November 26, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non- reportable level during the eighth race on November 26, 2016. Urine Specimen No. 125184 – ATASCOCITA HAPPY As noted above, urine specimen no. 125184 was collected by Petitioner's veterinary assistant from ATASCOCITA HAPPY, tattoo no. 655731245, before the ninth race on January 28, 2017. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration greater than 1.25 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 988 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 2.129 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated February 10, 2017, reporting these test results for urine specimen no. 125184. The findings of urine concentrations of greater than 1.25 micrograms per milliliter of caffeine, 988 +/- 90 nanograms per milliliter of theobromine, and 2.129 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA HAPPY carried these impermissible medications or prohibited substances in its body during the ninth race on January 28, 2017. Again, it is noted that notwithstanding that the test results for urine specimen no. 125184 showed the presence of theobromine and theophylline in ATASCOCITA HAPPY during the ninth race on January 28, 2017, at concentrations above the non- reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the ninth race on January 28, 2017. Respondent's Defenses Respondent denied having administered any impermissible medications or prohibited substances to the racing greyhounds that are the subject of these proceedings. Respondent also questioned, on three grounds, the accuracy of the test results showing the presence of impermissible medications or prohibited substances in the greyhounds that are the subject of these proceedings. First, Respondent disputes whether the urine specimens that yielded the positive test results were taken from the greyhounds that are the subject of these proceedings. She noted that under Petitioner's previous practice, when a urine sample was taken from a dog, the trainer was able to be present to verify that the animal from which the sample was collected was trained by him or her. She testified that now, under Petitioner's current sampling practice, the trainer is not able to be present so cannot verify the identity of the animal from which the sample is taken. This argument is not persuasive.10/ As previously discussed, Zimmerman described the process by which urine samples are collected from racing greyhounds for prohibited substances testing. As part of the urine sampling protocol, the identity of the greyhound from which the sample is collected is determined pursuant to an identification number tattooed on the dog's ear and that identification number is recorded both on the PMW 503 form and on the urine sample card that is transmitted to the UF Lab for testing. As previously noted, the evidence shows that this protocol was followed in collecting urine samples from the racing greyhounds that are the subject of these proceedings. Apart from mere conjecture,11/ Respondent did not present any evidence to show that the urine specimens for which positive test results were obtained were not collected from the greyhounds specifically identified herein, on the dates and at the times pertinent to these proceedings. Respondent presented evidence to show that conditions at the PBKC made it possible for racing greyhounds to ingest foods and beverages that could cause urine specimens from those animals to test positive for impermissible medications or prohibited substances. Specifically, Respondent testified that foods, such as chocolate, and beverages, such as coffee, sodas, and Red Bull, are available to purchase at the PBKC; that PBKC personnel consume these foods and beverages at many locations within the facility; that these foods and beverages are often left unattended in areas where they are accessible to the racing greyhounds; and that the greyhounds sometimes consume these foods and beverages. Jamie Testa corroborated Respondent's testimony. She echoed that PBKC personnel consume food and beverages in the PBKC facility and leave unfinished food and beverages in various locations, including in the weigh-in area, that are accessible to the greyhounds. She recounted one occasion on which she observed a veterinarian at the PBKC spill coffee and not clean up the spill, leaving it accessible for consumption by greyhounds. She described these conditions at PBKC as pervasive and continuing. In her words, "it's not just from one day. It's every day." On cross-examination, Testa acknowledged that greyhounds are muzzled during the weigh-in process, although she nonetheless asserted that this "doesn't mean that the dogs cannot pick up anything that's on the ground." However, she conceded that she did not witness the greyhounds that are the subject of these proceedings consuming food or beverages during the weigh-in or at any other times on the dates and at the times relevant to these proceedings. Arthur Agganis also corroborated Respondent's testimony that PBKC personnel often consume food and beverages in close proximity to the racing greyhounds, and that food and coffee is sometimes spilled on the ground. Agganis testified that on one occasion he observed a greyhound eat food off of the ground. On cross-examination, Agganis acknowledged that he did not witness any food or spilled coffee at the PBKC on the dates relevant to these proceedings. Respondent also presented an exhibit consisting of eight photographs ostensibly taken inside the PBKC.12/ The photographs depict vending machines from which chocolate bars and other snacks and sodas can be purchased, employees eating food, and unattended soda containers and beverage cups placed on tables and on the floor. On cross-examination, Respondent acknowledged that she took some, but not all, of the photographs, and some of the photographs were provided to her by other persons. She did not identify which photographs she took and which were provided to her by other persons. She also did not identify the specific locations within the PBKC facility in which the photographs ostensibly were taken; she did not identify the persons who took the photographs; and she did not present any testimony by these persons to establish that the photographs were, in fact, taken in the PBKC or that they accurately depict conditions within the PBKC. She also did not present any evidence establishing that the photographs were taken on the dates and at the times when the greyhounds that are the subject of these proceedings raced. In fact, she acknowledged that none of the photographs were taken on those dates, but instead were taken during a timeframe spanning from three months to one week before the final hearing. Respondent's argument that the positive test results are due to the greyhounds that are the subject of these proceedings having ingested foods or beverages at the PBKC rather than having been purposely administered those substances, is unpersuasive. Respondent did not present any evidence to show that the conditions described in Testa's and Agganis' testimony or portrayed in the photographs accurately depicted the conditions present at the PBKC on the specific dates and at the specific times during which the greyhounds that are the subject of these proceedings raced. Most important, even if the evidence showed that these conditions existed at the PBKC on the dates and at the times the greyhounds that are the subject of these proceedings raced, no evidence was presented showing that the greyhounds actually ingested anything at the PBKC that may have caused the positive test results. To the contrary, Respondent, Testa, and Agganis all acknowledged that they did not witness the greyhounds that are the subject of these proceedings ingest any foods or beverages at the PBKC on the dates and at the times pertinent to these proceedings. Respondent also argues that the urine samples taken from the greyhounds that are the subject of these proceedings could have been collected in contaminated containers, resulting in false positive test results for impermissible medications or prohibited substances. Specifically, Respondent testified: "I was able to see two people, like the females from the State, the ones who do——who collect the urine with their coffee cup." Testa also testified that on occasion, she observed veterinary assistants collecting urine samples by placing a urine sample collection cup on the sand in the ginny pit, which could cause cross-contamination of the urine sample. Respondent's testimony that she observed Petitioner's veterinary assistants collect urine samples from greyhounds using coffee cups is neither credible nor persuasive. In fact, Respondent herself testified that trainers do not have access to the ginny pit, so are unable to observe the urine collection process. These contradictions render Respondent's testimony incredible. Further, there is no evidence showing that Petitioner's veterinary assistants placed the urine collection cups on the sand in the ginny pit when collecting urine samples from the greyhounds that are the subject of the proceedings on the pertinent dates and at the pertinent times. Rather, the evidence establishes that Petitioner's veterinary assistants consistently follow an established protocol in collecting urine specimens for testing, which includes using clean, sealed cups that are unsealed immediately before the sample is collected, and then resealed with evidence tape and tagged with the sample number. The credible, persuasive evidence shows that Petitioner's veterinary assistants followed this protocol in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to these proceedings. There is no credible, persuasive evidence showing that this protocol was not followed by Petitioner's veterinary assistants in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to this proceeding. Findings of Ultimate Fact Regarding Violations Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting a positive test for dimethyl sulfoxide. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Aggravating or Mitigating Factors Petitioner presented evidence proving that Respondent was disciplined in 2011 for two violations involving the administration of class III drugs to racing greyhounds. These violations are relevant to determining the applicable penalty ranges in rule 61D-6.012. The violations charged in the administrative complaints filed on November 28 and 30, 2016, and December 28, 2016, occurred sufficiently close together in time such that Respondent was not informed of the violations in these complaints in time to enable her to take corrective measures. However, by the time the administrative complaint dated February 16, 2017, was filed, Respondent was on notice of the violations charged in the previously served administrative complaints, so she had sufficient time before the January 28, 2017, race to take appropriate corrective measures. This constitutes an aggravating factor in determining appropriate penalties. The evidence establishes that the caffeine level in RCK MOHICAN on November 26, 2016, was approximately 42 times the permissible limit for that substance established in rule 61D- 6.007(3)(a). As noted above, caffeine is a class II drug, which means that there is a high potential that its administration would affect the greyhound's performance. This constitutes an aggravating factor in determining appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter final orders in these proceedings as follows: For DOAH Case No. 17-4870, finding that Respondent committed two violations of section 550.2451(1)(a) and imposing a penalty consisting of a $1,500 fine and suspending Respondent's license for 75 days; For DOAH Case No. 17-4871, finding that Respondent committed three violations of section 550.2415(1)(a) and imposing a penalty consisting of a $1,750 fine and suspending Respondent's license for 60 days; For DOAH Case No. 17-4872, finding that Respondent committed one violation of section 550.2415(1)(a) and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days; and For DOAH Case No. 17-4873, finding that Respondent committed one violation of section 550.2415 and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days. DONE AND ENTERED this 27th day of December, 2017, in Tallahassee, Leon County, Florida. S Cathy M. Sellers 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 27th day of December, 2017.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Of Administrative Hearings this 7th day of September, 1990.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 18th day of August, 1995.
The Issue Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Jeffrey Jones reported for work while under the influence of cocaine on or about September 27, 1995. If so, whether Petitioner Jones should be terminated as an employee of the Seminole County School Board. Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Sylvia Foster reported for work while under the influence of cocaine on or about January 8, 1996. If so, whether Petitioner Foster should be terminated as an employee of the Seminole County School Board.
Findings Of Fact Facts Common to Both Respondents Petitioner, Seminole County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate control and supervise all public schools and personnel in the Seminole County School District. Paul J. Hagerty is the Superintendent of Public Schools for Seminole County, Florida. Respondent, Jeffrey Jones, at all relevant times, was an employee in the Transportation Department of the Seminole County School District, including September 27, 1995. His position is bus driver/courier. Respondent, Sylvia Foster, at all relevant times, was an employee in the Transportation Department of the Seminole County School Board, including January 8, 1996. Her position is bus driver. Respondents, Jeffrey Jones and Sylvia Foster, are members of the bargaining unit, the Bus Driver Association, who entered into a collective bargaining agreement with their employer, the Seminole County School Board. Article XXXIII of the collective bargaining agreement provides that Seminole County School Board will implement and abide by all aspects of the Federal Omnibus Transportation and Employee Testing Act. The Federal Omnibus Transportation and Employee Testing Act was applicable to bargaining unit members who hold a Commercial Driver's License (hereinafter CDL). Corning MetPath has a contract with Seminole County School Board to conduct urine sampling. In addition to taking urine samples from school bus drivers, Corning MetPath collects hundreds of other types of sampling at its facility in Longwood, Florida, for other clients. Prior and following entering into a contract with Corning MetPath, the Seminole County School Board did not provide blind test samples for quality control before contracting with Corning MetPath to perform federally required drug testing. John Richert, the director of Petitioner's "Anti-Drug and Alcohol Program", initiated the sampling designated by receipt of a list of persons who were to take the sample for the quarter. Once every three months, John Richert sent a packet of materials containing names of individuals who were to submit to urine testing by the week to Jean Crampton, Director of Transportation. Upon receipt of that list, Jean Crampton, who supervised the bus drivers, selected each person to be tested that week and provided them with a time and date to report for testing. That information was not provided by John Richert, but was left up to Mrs. Crampton. The Director of Transportation was responsible for passing on the list of sample providers, and ultimately for recommending termination of an employee whose test result was verified as positive. Anita Callahan operates the Corning MetPath facility in Longwood, Florida, and is an employee of Corning Clinical Laboratories. During most times of operation, Anita Callahan operates the collection facility by herself, without assistance. Each month, this facility conducts or takes between 500 and 760 samples. Prior to the relevant time, Anita Callahan received training in urine collection from her employer, and she relied on two Corning MetPath office manuals provided for use by personnel for reference. Neither manual contained copies of the Federal Regulations that apply to the specific procedures required under the federal testing act. The regulations call for the collection of urine samples, as follows: An employee is to report to the testing facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The employee must be identified to the technician by photo identification. The employee selects a sealed box containing a urine sample collection cup and two sample bottles from a large box. The employee is directed to wash his/her hands. The employee is directed to a bathroom to give a urine sample. The collection room is to have no other water source operating and the toilet is to contain a bluing agent. The sample is brought to the technician and the temperature is checked. To initiate the chain of custody, a portion of the urine sample is then poured into each of the collection bottles. The employee then dates and initials the seals and places them on each sample bottle. The technician then places the specimen bottles in a separate plastic bags and places them into the box from which they were originally packed, along with the original and three copies of the completed and signed Federal Drug Testing and Control Form. The box, which becomes the shipping box to transmit specimens to the laboratory in New Jersey, is sealed. The specimens are sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. Anita Callahan did not always strictly follow this procedure because she did not want to be touching the hands, paper or pen of people who had not washed their hands after obtaining the sample. Anita Callahan did not wear gloves when collecting and handling samples. In other respects the practices and procedures used at the Corning MetPath facility varied from the procedures its personnel were to follow: At times, there was other water sources in the collection area and collection closet, including running water in the bathroom sink and a water fountain in the hall. The sample containers that were used were sometimes unsealed and opened before the sample providers arrived. At times, the toilet in the collection closet did not contain a bluing agent. The sample containers were, at times, themselves visibly contaminated. Some drivers were not given a choice as to the sample container that was to be used. At times, if she was busy, Anita Callahan directed drivers to leave samples on the counter to be split and sealed outside the presence of the driver, at a later time. More than one person providing a sample was allowed in the sampling area during collection. Unless sample containers are clean and then sealed, all hands are washed and surfaces are kept clean, contamination is possible. Unless the sample containers are split in front of the sample provider, signed by both the technician and the provider, and sealed in front of the provider, a proper chain of custody has not been initiated and the possibility of mislabeling exists. If a collection site does not strictly follow those procedures set out in the Federal Regulations as to collection, chain of custody and testing, the test result is not scientifically reliable. Facts Relating to Case No. 95-5532 Respondent, Jeffrey Jones, was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida on September 27, 1995, prior to beginning work, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Jeffrey Jones was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form.) The Respondent was identified. The Respondent selected a box containing the urine sample collection cup and the two samples bottles from a box. The Respondent washed his hands. The Respondent went to the bathroom as directed and returned with a urine sample. The temperature of the samples was checked. A portion of the urine sample was poured into each of the collection bottles. The Respondent then dated and initialed the seals which were to be placed on the specimen bottles, referred to as split samples. The specimen bottles were then placed in separate plastic bags and placed into the box from which they were originally packed along with the original and three copies of the Federal Drug Testing and Control Form. The box, which becomes the shipping box in which the specimens are shipped to the laboratory in New Jersey, was sealed. The Respondent then signed the copy of the Federal Drug Testing and Control Form which acknowledges that the urine sample is his urine sample. j. The specimens were then sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. At the time Jeffrey Jones was obtaining his urine sample he dropped his key chain in the toilet and then retrieved it. He did not inform the technician of this event. The first sample bottle remained sealed until it was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Shilpa Joshi. The urine sample of Jeffrey Jones (second bottle) was sealed upon collection at the Corning Clinical facility at Longwood, Florida and remained sealed until it was opened for confirmation testing at LabOne in Overland Park, Kansas. Laboratory analysis of urine for the presence of drugs/controlled substance, as prescribed by 49 C.F.R. Subsection 40.29 is to be done in two phases. The initial test (screening) shall employ immunoassay and the second phase (confirmation testing) shall employ gas chromatography/mass spectrometry (GC/MS). The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Jeffrey Jones was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The GC/MS process for analysis of urine for the presence of controlled substances is generally accepted in the scientific community. Laboratory analysis of the urine sample submitted by Jeffrey Jones, by Corning Clinical Laboratories, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. The second sample was then sent to LabOne for confirmation testing. Laboratory analysis of the urine sample submitted by Jeffrey Jones to LabOne of Overland Park, Kansas, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. There is no substance that will cause a person's urine to test positive for benzoylecgonine, a metabolite of cocaine, other than cocaine. Both Corning Clinical Laboratories and LabOne were properly certified as required by 49 C.F.R. Subsection 40.39. Murray Lappe, M. D., was the designated medical review officer (MRO) for the drug testing of Jeffrey Jones. The MRO did not contact Jeffrey Jones or otherwise communicate with Mr. Jones after the putative positive test result. Jean Crampton, Director of Transportation was informed by telephone from Corning Labs that Jeffrey Jones had tested positive for cocaine in his urine. Neither Jean Crampton, nor anyone else in the School Board, contacted Respondent Jones about his result to inquire into possible alternative medical explanations for the result. Jean Crampton believed that alternate medical explanations was the province of the MRO and should have already happened. False positive test results can occur for cocaine either in certain prescription medications, creams, and certain consumer goods, such as teas and drinks, although such teas and drinks have been banned for sale in the U. S. Respondent Jones, prior to and at the time of taking the urine screening, was a care-giver for his two elderly parents, both of whom lived with him, were bedridden, and required extensive medications. There were times that Respondent Jones' father provided headache and toothache medicine to him. The supervisors of Jeffrey Jones were trained to recognize signs of drug or alcohol abuse. The supervisors of Jones, who saw him daily, saw no evidence of drug or substance abuse in his work performance. Facts Relating to Case No. 96-0506 Respondent Sylvia Foster was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida, after her first run, on January 8, 1996, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Sylvia Foster was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The Respondent was identified by her School Board Badge. The technician selected a box containing the urine sample collection cup and the two sample bottles from a box and gave it to the Respondent. The Respondent washed her hands. The Respondent went to the bathroom, as directed, and returned with an empty urine sample. She was not able to urinate. The Respondent drank some water and returned to the bathroom. She returned with a urine sample. The technician was across the hall with another person on whom she was conducting a diabetic time test. Respondent was directed to leave her urine sample on the counter and leave; Respondent had previously signed and initialed the documents and labels. Respondent left the sample and departed. The technician later split the sample, sealed them and placed them into the box with the documentation for shipping to the laboratory in New Jersey. The specimens were then sent by courier to the Corning lab in Teterboro, New Jersey for analysis. The urine sample shipped under the name of Sylvia Foster from the Corning Clinical facility at Longwood, Florida, remained sealed until the first sample bottle was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Isidoro Lomotan. The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Sylvia Foster was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The laboratory analysis of the urine sample submitted under the name of Sylvia Foster, by Corning MetPath, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. Sylvia Foster, on January 9, 1996, the day after submitting her urine sample at the Corning MetPath facility, complained to her supervisors that she was taking a lot of different prescription medications and was worried about the result. Murray Lappe, M. D. was the designated MRO for the drug testing of Sylvia Foster. Someone who identified himself as working with the MRO contacted Sylvia Foster, by telephone, after the putative positive test result. The person on the telephone informed Sylvia Foster that she had a drug problem and needed help. The person on the telephone did not make any inquiry into Respondent Foster's medical condition or history, nor that she would be able to produce information and medical records to substantiate an alternate medical explanation. Jean Crampton, Director of Transportation, was informed by telephone from Corning MetPath that Sylvia Foster had tested positive for cocaine in her urine. Neither Mrs. Crampton, nor anyone else in the School Board, contacted Respondent Foster about possible alternative medical explanations for the result. The supervisors of Sylvia Foster, who saw her daily, did not see any evidence of drug or substance abuse in her work performance. Respondent Foster's testimony as to sequence of events is credible.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED tht the School Board dismiss the Superintendent's request to terminate the employment of Jeffrey Jones and Sylvia Foster, and the Respondents should be reinstated to their former positions. DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-5532 and 96-0506 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6 (except as to the year), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 (as to Jeffrey Jones only), 24, 25, and 27. Rejected as against the greater weight of the evidence: paragraphs 23 and 26. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4 (except as to the year), 5, 6, 7, 8, 9, 10, 11, 12, 16, 17 (except for the year), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 (in part), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 (in part), 55 (in part), 56, 53 [No. 3], 54 [No. 2], 55 [No. 2], 56 [No. 2]. Rejected as irrelevant and immaterial: paragraphs 13, 14, 15, 45. Rejected as against the greater weight of the evidence: paragraphs 29 (in part), 54 (in part), 55 (in part). COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Lake Mary, Florida 32773 Thomas F. Egan, Esquire 56 East Pine Street, Suite 300 Orlando, Florida 32801 Dr. Paul Hagerty, Superintendent 1211 South Mellonville Sanford, Florida 32771 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
The Issue Whether Respondent raced a horse that was impermissibly medicated in violation of section 550.2415(1)(a), Florida Statutes (2015), and implementing administrative rules1/ as alleged in the Amended Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. At all times material, Ms. Pompay held a pari-mutuel wagering professional individual occupational license, number 1001817-1021, issued by the Division. At all times material, Ms. Pompay was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D. Under section 550.2415(1)(a), an animal that has been impermissibly medicated or determined to have a prohibited substance present may not be raced. It is a violation of the statute for a person to impermissibly medicate a horse which results in a positive test for such medications based on samples taken immediately after the race. Rule 61D-6.002(1) provides: "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the horses . . . he/she enters to race." Ms. Pompay was the trainer of record for the horse named R Bling Shines who raced at Gulfstream Park on February 20, 2016. R Bling Shines won her race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division obtain urine and blood samples from racehorses. Ms. Pompay was the trainer of record for the horse named Run Saichi who raced at Gulfstream Park on May 13, 2016. Run Saichi finished second in his race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. Rule 61D-6.005, entitled "Procedures for Collecting Samples from Racing Animals" was in effect when R Bling Shines and Run Saichi were sent to the equine detention barn for the collection of "urine, blood or other such samples" as authorized by the rule. The term "other such samples," as used in the rule, means hair and saliva. The rule does not refer to the "processing" of whole blood samples into blood serum. The University of Florida Laboratory determined that the post-race blood sample taken from R Bling Shines tested positive for a blood serum overage of the permitted medication "betamethasone." The University of Florida Laboratory determined that the post-race blood sample taken from Run Saichi tested positive for a blood serum overage of the permitted medication "mepivicaine." On February 20, 2016, the Equine Detention Barn Procedures Manual (2010 Manual) was in effect for all equine detention barn facilities. The 2010 Manual was in effect between June 2010 and April 7, 2016. At the time the 2010 Manual became effective, rule 61D-6.005 (2001) was in effect. On November 25, 2015, the Recommended Order issued in Case No. 15-5037 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1., Florida Statutes, the Division could not base agency action on blood serum samples obtained pursuant to it. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On December 15, 2015, the Recommended Order issued in consolidated Case Nos. 14-4716 and 15-2326 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1. the Division could not base agency action on blood serum samples obtained pursuant to the unadopted rule. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On April 7, 2016, the 2016 Guidelines were distributed to all equine detention barn facilities to become effective as of that date. The 2016 Guidelines superseded and replaced the 2010 Manual. At the time the 2016 Guidelines became effective, rule 61D-6.005 (2015) was in effect. The 2016 Guidelines were in effect on May 13, 2016, when Run Saichi raced at Gulfstream Park. The 2010 Manual prescribed detailed procedures for collecting blood samples from race horses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, and mailing of the specimen to the laboratory for testing. The 2010 Manual was applicable to every horse racing facility within the State of Florida. It had been in effect in its then- current form between 2010 and April 2016 and, by its own terms, was mandatory. It provided that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the 2010 Manual. It described seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and described detailed procedures in this "strict sequence of events that must be followed." The 2016 Guidelines do not prescribe the detailed procedures for collecting blood samples from racehorses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, freezing the sample and mailing of the specimen to the laboratory for testing. However, since the date the 2016 Guidelines were put into effect, the procedures followed by Division employees in the testing barn for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample and the mailing of the specimen to the laboratory have been the same as those prescribed by the 2010 Manual. At the time of the implementation of the 2016 Guidelines, there were no "established procedures pursuant to applicable law and administrative rule" to process whole blood into blood serum other than the procedures set forth in subsection 4.6 of the 2010 Manual. In addition, at the time of the implementation of the 2016 Guidelines, there were no "testing laboratory SOPs" or "protocols" in place for detention barn personnel to follow. According to the laboratory director, the laboratory’s SOPs and protocols do not begin to operate until the moment the samples arrive at the laboratory in Gainesville. The Division published the 2010 Manual under the direction of its deputy director and distributed it to every employee who worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2010 Manual was not made available to the general public unless a copy was requested as a public record. The 2010 Manual was an official publication of the Division used at all horse racing facilities in the State of Florida and was last updated on June 25, 2010. During the approximate six-year period that the 2010 Manual was in effect, not one owner’s witness went to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division published the 2016 Guidelines under the direction of its deputy director and distributed it to every employee that worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2016 Guidelines were not made available to the general public unless a copy was requested as a public record. Since the 2016 Guidelines took effect, not one owner’s witness has gone to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division uses various forms in connection with blood and urine sampling. The forms catalog the specimens and, if the procedures set forth in the 2010 Manual and the 2016 Guidelines are followed, demonstrate that the horse was in the testing barn at the time the blood and urine samples were taken. The Division’s Form RL 173-3 is a self-adhesive sequentially numbered bar-coded, three-part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (blood, urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card is completed, appropriately signed, and sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen (blood label), the numbered portion designated for the urine specimen (urine label), and the numbered portion containing information about the animal and trainer that was required to be signed by the witness (card) under rule 61D-6.005 (2001) and "may" be signed by the witness under rule 61D-6.005 (2015). In the sampling procedures followed in this case, the blood labels were not affixed to the collection tubes. The blood labels, from which the card portion was "detached," were affixed to the evergreen blood tubes. This was consistent with the governing rule, as well as the 2010 Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed on February 20, 2016, were in compliance with the procedures set forth in the 2010 Manual. The sampling procedures followed on May 13, 2016, were the same as those followed on February 20, 2016. As stated in subsection 4.4 of the 2010 Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with" between the time the sample is sealed at the detention barn and the time the sample is received by the University of Florida Laboratory. The same purposes are served by sealing the serum specimen. The procedures prescribed in the 2010 Manual for the collection of whole blood and the processing of the whole blood into serum were followed when the blood samples from the horses trained by Ms. Pompay were taken on February 20, 2016, and May 13, 2016. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in subsection 4.6 of the 2010 Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the 2010 Manual provided: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. The opening of the blood tubes, the pouring of the serum from the blood tubes into the evergreen tube, and the sealing of the evergreen tube was witnessed by two Division employees: a chief veterinary assistant or detention barn supervisor who pours the serum from the blood tubes to the evergreen tubes and another employee who observes the process. In the proposed recommended orders referred to in paragraphs 14 and 15 above, a specific finding of fact was made that the 2001 version of rule 61D-6.005 did not make reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape or the freezing of the specimen. The state veterinarian who took the blood sample from R Bling Shines and Run Saichi signed PMW Form 504, a Daily Record of Sample Collection, indicating that this was done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it (under the observation of another detention barn employee). Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. There is no signature indicating the time the state veterinarian leaves the samples at the detention barn or the time the chief veterinary assistant opens the collection tubes and transfers the serum. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the taking of the urine and blood samples. In fact, since the change in rule 61D-6.005 in June 2015, no owner’s witness has refused to sign the sample tag. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the sealing of the urine specimen in its container, but before the whole blood was processed into blood serum, the blood serum was poured into the serum container, and the serum container was sealed. The pouring of the collection tubes into specimen containers takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an authorized witness to remain until the serum specimens were sealed. The sampling procedures set forth in the 2010 Manual and the sampling procedures in use under the 2016 Guidelines are important to the Division, to the trainers, and to the public. These sampling procedures affect the substantive rights of the trainers as they are the "absolute insurer" of the horse’s condition when it races. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in subsection 4.6 of the 2010 Manual were never discussed at a rule-making hearing. These procedures are not part of rule 61D- 6.005, adopted in 2001, nor are they part of rule 61D-6.005 as amended in 2015. Until it was superseded by the 2016 Guidelines, the 2010 Manual applied to every state-licensed horse racing facility in the State of Florida. It was a policy attributable to the Division. Amendments to rule 61D-6.005, effective June 15, 2015, to eliminate all references to the sealing of the blood serum specimen, left the 2010 Manual provisions establishing policy on extracting and sealing the serum specimen without support in statute or adopted rule. After the amendments to the rule, the provisions of the 2010 Manual requiring extraction and sealing of the serum specimen were generally applicable Division policy that created rights important to a trainer. These provisions constituted an unadopted rule. The established procedures pursuant to applicable law and administrative rule referenced by the 2016 Guidelines, which Division employees are required to follow, are the procedures that were set forth in the 2010 Manual. These procedures for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample, and the mailing of the specimen to the laboratory survive as de facto policies of the Division notwithstanding the "repeal" of the 2010 Manual. The de facto Division policy regarding extraction and sealing of serum specimens affect rights important to trainers and has the direct and consistent effect of law. Division employees do not have the discretion not to follow the de facto Division policy regarding extraction and sealing of serum specimens. The de facto Division policy regarding extraction and sealing of serum specimens constitutes an unadopted rule.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 30, 1989, certified as a law enforcement officer in the State of Florida. He holds Law Enforcement Certificate Number 31895. At all times material to the instant case Respondent was employed as a sergeant by the Miami-Dade County Police Department. During his employment, Respondent was a member of the Miami-Dade County Police Department's Tactical Narcotics Team. As a team member, he came into contact with and handled controlled substances, including cocaine, in discharging his duties. Respondent's employment with the Miami-Dade County Police Department was involuntarily terminated after his urine tested positive for cocaine. The test was part of a regularly scheduled biannual physical examination he was required to undergo by the Miami- Dade County Police Department. The examination was conducted the morning of January 24, 2002, at Mount Sinai Medical Center in Miami Beach, Florida. Respondent gave the urine sample that tested positive for cocaine approximately 8:00 a.m. that morning. Respondent had almost a month's advance written notice of the examination. The written notice he received listed "all the tests" he would be given during the examination. Respondent could have requested that the examination be rescheduled (by "go[ing] through [his] station"), but he did not make such a request. The urine sample that Respondent gave as part of the examination was tested and analyzed by Toxicology Testing Service, Inc. (TTS). TTS received Respondent's urine sample "intact" (in two sealed and labeled containers) the afternoon of January 24, 2002. One of the containers was then unsealed and its contents tested and analyzed. The other container was "kept frozen." TTS's initial screening of the contents of the unsealed container indicated the presumptive presence of benzoylecgonine, a metabolite produced when (and only when) cocaine is ingested and metabolized in the body. TTS then performed confirmatory testing using gas chromotography-mass spectrometry analysis. Gas chromotography-mass spectrometry analysis is an exceptionally reliable and accurate method of confirmatory testing.2 The gas chromotography-mass spectrometry analysis, which was done on February 1, 2002, confirmed the presence of benzoylecgonine in Respondent's urine specimen at the level of 575 nanograms per milliter, a result consistent with, and indicative of, Respondent's having ingested cocaine prior to the collection of his urine specimen. There was no umetabolized "parent cocaine" detected in the specimen.3 Neither did testing reveal the presence of cocaethylene (the metabolite formed in most, but not all, persons when cocaine is ingested together with alcohol) or ethyl ecgonine ester (a metabolite which is a "breakdown" product of cocaethylene). It is undisputed that, in conducting its testing and analysis, TTS followed required testing protocol designed to ensure reliable results. The results of TTS's testing and analysis were reported to the Miami-Dade County Police Department. After receiving these results, the Miami-Dade County Police Department commenced an internal affairs investigation of the matter. Lieutenant Cynthia Machanic was assigned the task of heading up the investigation. As part of the investigation, Lieutenant Machanic asked Respondent to give a sworn statement explaining "how he would [have] come to have a positive drug test." Respondent had not at any time knowingly ingested cocaine. He therefore had to resort to speculation and conjecture to provide the explanation Lieutenant Machanic sought. He did not remember having participated on the Tactical Narcotics Team, or having engaged in any other job- related activity, in which he would have come in contact with cocaine, close in time to his January 24, 2002, biannual examination. The "only logical, plausible explanation" he could come up with was that, on the evening of January 22, 2002, while attending a bachelor party for a fellow Miami-Dade County police officer at the Play Pen South, a topless nightclub, one of the dancer's at the nightclub, with whom he had gotten into an argument over payment for a "lap dance," had "put something in [his last] drink [that evening] which caused [him] to test positive for cocaine." He had not seen anyone, including any of the nightclub's dancers, "put anything in [any of his] drink[s]" that evening, but he had left his last drink unattended before consuming its contents and he felt, at the time he was questioned by Lieutenant Machanic, that it was possible that the drink could have been tampered with when out of his sight. This last drink, a 12-ouncce beer, had been his eighth of the evening. In addition to these eight beers, he had consumed four shots of scotch while at the bachelor party. Two dancers and a bartender at the Playpen South also gave statements during the investigative process. Following the completion of the internal affairs investigation Respondent's employment with the Miami-Dade County Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 31st day of August, 2004.
