00-004992 Volusia County School Board vs. Terry M. Luchterhand Status: Closed Recommended Order on Monday, April 9, 2001.

Summary: Respondent had just cause to terminate Petitioner`s employment due to his intoxication at work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 00-4992

)

TERRY M. LUCHTERHAND , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was held in this case on March 7, 2001,

with video teleconference sites located in Tallahassee, Florida,

and Daytona Beach, Florida, before the Division of

Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner : Thomas Gonzalez, Esquire

Kelly L. Soud, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200

Post Office Box 639

Tampa, Florida 33601

For Respondent : Terry M. Luchterhand, pro se

111 Seton Trail

Ormond Beach, Florida 32176

STATEMENT OF THE ISSUE

The issue is whether Petitioner had just cause to terminate

Respondent's employment for being under the influence of alcohol

while on duty.

PRELIMINARY STATEMENT

By letter dated October 19, 2000, Petitioner Volusia County

School Board (Petitioner) advised Respondent Terry M.

Luchterhand (Respondent) that his employment was terminated.

The letter alleged that Respondent had violated Petitioner's

policy relative to the conduct of employees regarding illegal

drug and alcohol abuse.

On or about December 11, 2000, Respondent requested a

formal hearing. Petitioner referred this case to the Division

of Administrative Hearings on December 18, 2000.

A Notice of Hearing by Video Teleconference dated

December 28, 2000, scheduled the case for hearing on

February 13, 2001. Subsequently, Petitioner filed a Motion for

Continuance. An order dated January 26, 2001, granted this

motion and rescheduled the case for hearing on March 7, 2001.

On March 5, 2001, Petitioner filed three proposed exhibits.

The exhibits included the following: (a) School Board Policy

415 with Respondent's Signature; (b) U. S. Department of

Transportation Breath Alcohol Testing Form dated July 20, 2000;

and (c) Letter of Recommendation of Termination.

During the hearing, Petitioner presented the testimony of

eight witnesses. Petitioner offered the above-referenced three

exhibits for admission into evidence. Petitioner's exhibits

were admitted with the exception of the second exhibit, U.S.

Department of Transportation Breath Alcohol Testing Form, dated

July 20, 2000. The undersigned reserved ruling on the

admissibility of the numerical results of the two breath alcohol

tests contained in the breath alcohol testing form. For reasons

set forth below, the numerical test results are hereby excluded

as uncorroborated hearsay. 1

Respondent testified on his own behalf. He offered one

exhibit that was accepted into evidence.

The Transcript was filed on March 23, 2001. Petitioner

timely filed its Proposed Recommended Order on April 2, 2001.

Respondent filed a letter on April 5, 2001, which was read

and considered. The undersigned issued a Notice of Ex Parte

Communication regarding this letter on April 6, 2001.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner

employed Respondent as a facilities maintenance technician at

Pathways Elementary School.

2. Respondent's job required him to maintain the school's

heating and air conditioning equipment and all electrical

equipment. Respondent's position was safety-sensitive because

his work occasionally exposed him to as much as 220 volts of

electricity.

3. Respondent was aware of Petitioner's personnel policy

regarding illegal drug or alcohol abuse. This policy is set

forth in policy No. 415, which states as follows in relevant

part:

It is the intention of the School Board of

Volusia County to maintain a drug-free

workplace and school environment for its

employees and students . . . .

An employee of the school board shall not

manufacture, distribute, dispense, possess

or use alcoholic beverages on school

grounds, on school board property, or at

school board activities (on or off school

board property) at which students are

present . . . .

* * *

Disciplinary action, including, but not

limited to termination of employment and

referral for prosecution, if appropriate

will be taken against any employee who

violates this policy. . . . Procedures shall

be developed to effectuate the intent of

this policy. The procedures shall include

provisions for drug testing applicants for

employment and employees. Employee testing

may be part of a routinely scheduled

fitness-for-duty medical examination or

based upon reasonable suspicion that an

employee is violating the terms of this

policy. . . .

Respondent signed a document on October 12, 1998, acknowledging

his receipt of policy No. 415. Respondent admits he had a

responsibility to make sure that he was not under the influence

of alcohol at work.

4. On July 20, 2000, the school's secretary was making

photo identification badges for school staff members. The

secretary radioed Respondent and requested that he come to the

office to have his picture taken. During this conversation, the

secretary noticed that Respondent's speech was slurred. Because

Respondent's voice did not sound right, the secretary asked the

school's resource teacher to be present when Respondent arrived.

5. In order to take the picture, the secretary had to

place the camera fairly close to Respondent's face. The

secretary smelled alcohol on Respondent's breath. She also

observed that Respondent was sweating profusely and that his

complexion was very pale.

6. Upon Respondent's arrival at the office, the resource

teacher smelled a strong odor of alcohol in the room. The

resource teacher noticed Respondent's slurred speech. She also

observed that Respondent appeared ill because he was pale and

sweating profusely.

7. The school secretary called the assistant principal to

tell him that she had observed Respondent in an intoxicated

state. The assistant principal, in turn, telephoned

Respondent's immediate supervisor regarding Respondent's

observable intoxication. The assistant principal made this call

around 1:00 p.m.

8. Subsequently, the assistant principal observed two

bottles of vodka and several bottles of mouthwash in

Respondent's vehicle. The vehicle was parked in the school's

parking lot.

9. Respondent's immediate supervisor first called

Petitioner's professional standards investigator who agreed to

meet the supervisor at Pathways Elementary School. The

supervisor and the investigator wanted to observe Respondent's

behavior firsthand.

10. Arriving at the school, the supervisor noted that

Respondent's speech was slurred. Upon her subsequent arrival,

the investigator noted Respondent's disheveled clothing, his

confused conversation, and the smell of alcohol about his

person. Based on her training and experience and her

observations of Respondent, the investigator concluded that

Respondent was under the influence of alcohol.

11. Respondent freely agreed to submit to a sobriety test.

The supervisor transported Respondent to Deland, Florida, for a

breath alcohol test. They arrived at the testing center about

3:00 p.m. After taking two breath alcohol tests, Respondent

signed a document setting forth the numerical results.

12. As a result of Respondent's intoxication on the job,

and in light of Petitioner's drug-free workplace policy,

Petitioner gave Respondent another work assignment pending

completion of an investigation. After the investigation was

complete, Petitioner voted to terminate Respondent's employment.

Petitioner's decision was consistent with its policy of

terminating employees upon their first violation of the

prohibition against using alcoholic beverages on school

property.

13. Respondent presented testimony that he is now enrolled

in an intensive alcohol-treatment program. He admits that he

"has a problem with alcohol." Respondent's testimony that he

was not intoxicated from using alcohol while at work on July 20,

2000, is not persuasive.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

15. Petitioner has the burden of proving by a

preponderance of the evidence that it has just cause for

terminating Respondent's employment.

16. Despite the inadmissibility of Respondent's breath

alcohol test results, Petitioner met its burden of proving that

Respondent was intoxicated at work on July 20, 2000, because lay

witnesses presented persuasive testimony about his observable

intoxication. See Eberhardt v. State , 550 So. 2d 102, 105 (Fla.

1st DCA 1989) review denied , 560 So. 2d 234 (Fla. 1990). The

credible testimony of the secretary, the resource teacher, the

supervisor, and the investigator constitute competent evidence

of Respondent's impairment. Accordingly, Petitioner had just

cause to terminate Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order finding just cause for

terminating Respondent's employment.

DONE AND ENTERED this 9th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 2001.

ENDNOTE

1/ On July 20, 2000, Respondent signed the breath alcohol

testing form setting forth the numerical results of two breath

alcohol tests, indicating that they were accurately recorded on

the form. Petitioner may have been competent to determine that

the recorded results on the document correctly reflected the

numerical readings on the breath machine after each of the

breath alcohol tests. However, he is not and never has been

competent to verify the accuracy and reliability of the breath

machine or its recorded results. This is especially true in

light of Respondent's testimony that the test results were not

accurate.

Petitioner presented testimony at the hearing that its

professional standards investigator participates in the on-site

random drug testing of Petitioner's employees four times a year.

On those occasions, the investigator accompanies a technician

who performs breath alcohol tests using a portable machine.

This same investigator was present at the testing center when

Respondent was tested on July 20, 2000. Nevertheless, the

investigator was not qualified to testify about the reliability

of the breath-testing machine used to test Respondent's breath

or the validity and accuracy of his numerical test results.

More importantly, Petitioner did not present the testimony, in

person or by deposition, of the breath alcohol technician who

performed Respondent's breath alcohol tests.

During the hearing, Petitioner argued that the U.S. Department

of Transportation Breath Alcohol Testing Form dated July 20,

2000, was admissible as an exception to the rule against hearsay

under Section 90.803(6), Florida Statutes. That section relates

to records of regularly conducted business activities ". . . if

kept in the course of a regularly conducted business activity

and if it was the regular practice of that business activity to

make such memorandum, report, record, or data compilation

. . . ." Section 90.803(6), Florida Statutes. The breath

alcohol testing form at issue here does not meet these

conditions.

Petitioner argues in its Proposed Recommended Order that the

numerical results of the two breath alcohol tests are admissible

because they corroborate otherwise admissible evidence of

Respondent's intoxication under Section 120.57(1)(c), Florida

Statutes, which states as follows:

(c ) Hearsay evidence may be used for the

purpose of supplementing or explaining other

evidence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

In this case, no witness testified about the exact content of

alcohol in Respondent's breath. Therefore, the numerical test

results are not admissible pursuant to that statute.

It should also be noted that the document in question does not

meet the criteria for self-authentication and admissibility

under Sections 316.1934(5) and 327.354(5), Florida Statutes.

These sections set forth the conditions under which breath

alcohol test results are admissible as an exception to the

hearsay rule in Section 90.803(8), Florida Statutes, for public

records, without further authentication, and as presumptive

proof of the results.

COPIES FURNISHED:

Thomas Gonzalez, Esquire

Kelly L. Soud, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200

Post Office Box 639

Tampa, Florida 33601

Terry M. Luchterhand

111 Seton Trail

Ormond Beach, Florida 32176

William E. Hall, Superintendent

Volusia County School Board

Post Office Box 2118

Deland, Florida 32721-2118

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.