11-005284 Emerald Coast Utilities Authority vs. A. J. Stovall, Ii Status: Closed Recommended Order on Tuesday, January 31, 2012.

Summary: Respondent violated Petitioner's policy against using illegal drugs or alcohol in the workplace. Accordingly, his employment with Petitioner is subject to discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5284

)

A. J. STOVALL, II , )

)

Respondent . )

)

RECOMMENDED ORDER

A f inal hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on December 13 , 2011, in Pensacola ,

Florida.

APPEARANCES

For Petitioner: John Edmund Griffin, Esquire

C arson and Adkins

2930 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

For Respondent: A. J. Stovall, II , pro se

8351 Calvert Street

Pensacola, Florida 32514

STATEM ENT OF THE ISSUE

The issue is whether the termination of Respondent ' s

employment was in accordance with the personnel policy and

procedure established by Emerald Coast Utilit ies Authority

(ECUA).

PRELIMINARY STATEMENT

On August 4, 2011, Respondent was in volved in an accident

while driving ECUA ' s boom truck. The nature of the accident was

a failure to completely lower the boom at the Perdido Landfill

which led to the boom hitting power lines and bringing them down

on the private road exiting the landfill.

As was the policy of ECUA, Respondent was required to

undergo a drug test after having been involved in an accident.

Respondent tested positively for cocaine in his bloodstream and

was notified that he was subject to a predetermination/liberty

interest hearing to be conducted by ECUA.

On September 22, 2011 , a predetermination/liberty interest

hearing was held in ECUA ' s Board Room. Respondent participated

in the hearing and presented information for consideration .

By certified letter dated September 28, 2011 , Respondent

was notified that his employment with Petitioner was terminated.

The letter stated that ECUA ' s action was based on violations of

ECUA Human Relations Policy Manual, s ection F - 4( 29 ) and (33) .

The letter further advised Respondent of his right to appeal

Petitioner ' s employment action and request a formal hearing

before an Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

By letter dated October 7, 2011, Respondent timely filed a

request for hearing. The case wa s forwarded to DOAH .

At the hearing, Petitioner presented the testimony of

Mike Emmons, ECUA Sanitation Supervisor; Rose Carter, an

employee of Lab oratory Corp oration of America (LabCorp) ;

Carol J. Law , Ph.D., president of Drug Free Workplaces;

Cynthia S. Sutherland, ECUA Human Resources Manager; and Randy

Rudd, ECUA Deputy Executive Director of Shared Services; and

offered 18 exhibit s , all of which were admitted into evidence.

Respondent testified on his own behalf and offered one exhibit ,

which was admit ted into evidence.

FINDINGS OF FACT

1. ECUA was created in 1981 pursuant to c hapter 81 - 376,

Laws of Florida. By law, it provides utility services

throughout Escambia County, Florida.

2. Respondent was employed by Petitioner in May 2010. On

May 3, 2 010, Respondent signed a written acknowledgement of

ECUA ' s drug - free workplace program and agreed to be tested

according to s ection 440.101 - .102, Florida Statutes , and ECUA ' s

Drug and Alcohol Policy. Respondent also acknowledged, in

writing, receipt of th e ECUA Employee Handbook on May 10, 2010.

Until the incident described in this o rder, Respondent was

considered by his direct supervisor to be an excellent employee.

3. The handbook is a summary of Petitioner ' s human

resource policies. Specific human resource policies are

contained in Petitioner ' s Human Resource Policy Manual. Th e

manual states, in relevant part:

Section F - 4 Disciplinary Offenses

(29) Use of or Being Under the Influence of

a ny Controlled Substance as defined in

Section 893.03, Flori da Statutes or Federal

regulation , Not Pursuant to a Lawful

Prescription While on Duty; or Possession,

Sale,

" Illegal drug " means any controlled

substance as defined in Section 893.03,

Florida Statutes or Federal regulation which

is not possessed, sold, d istributed, or

dispensed in accordance with law.

* * *

(33) Violation of ECUA Rules or Policies o r

State or Federal Law.

The failure to abide by ECUA rules,

policies, directives or state or federal

statutes. . . .

* * *

CHAPTER G DRUG AND AL COHOL ABUSE POLICY

It is a condition of employment with the

Escambia County Utilities Authority for an

employee to refrain from reporting to work

or working with the presence of drugs or

alcohol in his or her body.

* * *

If an employee tests posit ive for alcohol

or drugs, his employment may be

terminated . . . .

* * *

Section G - 2 Definitions

B. " Drug abuse " means the use of any

controlled substance as defined in Section

893.03, Florida Statutes, as amended from

time to time, not pursuant to lawful

prescription. The term " drug abuse " also

includes the commission of any act

prohibited by Chapter 893.03, Florida

Statutes, as amended from time to time. The

use of illegal drugs, or being under the

influence of illegal drugs on the job, by

ECUA employees is strictly prohibited.

Section G - 5 Rehabilitative/Corrective

Action

B. Any employee found to have possessed,

used or been under the influence of illegal

drugs or alcohol while on duty shall be

subject to disciplinary action, up to and

includ ing dismissal . . . .

* * *

E. Any employee who tests positive for

alcohol or who tests positive for illegal

drugs on a confirmation test shall be

subject to disciplinary action, up to and

including dismissal . . . .

4. On August 4, 2011, Respond ent was driving an ECUA

vehicle, a knuckle boom truck used for picking up large garbage

items, while performing his job duties for Petitioner. After

making a trip to the Perdido Landfill, Respondent failed to

completely lower the boom on the truck. As he dr o ve the truck

from the landfill, the boom made contact with some power lines

and brought them down. While there was no damage to the ECUA

truck, the damage to the power lines was estimated to be $3,000.

Power was disconnected to the downed lines and n o injuries

occurred.

5. Respondent called his supervisor, Mike Emmons, who went

to the scene of the accident, secured the area, and called his

supervisor, Randy Rudd, to report the downed power lines.

Mr. Emmons also called Carrie Langley, the ECUA Huma n Resources

Director. He did not witness any behavior to indicate

Respondent was under the influence of alcohol or drugs. Since a

vehicle accident had occurred, and in accordance with ECUA

policies, Respondent was required to undergo a urine test for

dru gs and alcohol.

6. After Respondent signed a consent form for the drug and

alcohol test, Mr. Emmons drove Respondent to LabCorp, ECUA ' s

occupational testing services company. LabCorp is a licensed

facility under state and federal law to obtain urine sam ples for

drug testing purposes.

7. Respondent was seen by a LabCorp technician , who was

well - qualified to obtain and process urine samples. The

technician checked Respondent ' s identification and had him empty

his pockets prior to the test. The technic ian gave Respondent a

sample cup with a temperature strip on it. The temperature

strip helps ensure that the liquid in the cup is close to body

temperature indicating the liquid is urine and has not been

adulterated.

8. Respondent took the cup into th e bathroom and urinated

into it. Respondent returned the sample to the technician. In

the presence of Respondent, the technician checked the

temperature of the sample which was normal. The technician then

split the sample into two test tubes, sealed eac h tube, labeled

them, and had Respondent initial each tube. The technician

recorded her activity in processing the sample on a custody and

control form which Respondent then signed, acknowledging the

sample - taking process. Again in the presence of Respon dent,

both the custody and control form and the two samples were

placed in a sample bag which was sealed with an evidence sticker

and placed in a locked specimen box for transport to a licensed

drug testing facility in North Carolina. There was no evidenc e

that appropriate and thorough procedures were not followed in

the collection and processing of Respondent ' s urine sample.

9. Respondent ' s sample arrived at LabCorp ' s testing

facility at Research Triangle Park in North Carolina on

August 5, 2011. Sampl e A was used for initial testing and

Sample B was frozen to preserve it for later testing if

required. The sample was tracked through the testing process by

number and the name of Respondent is not known to the technician

performing the tests.

10. The f irst test performed on Respondent ' s Sample A was

an immunoassay test. The sample was initially tested with

various cut - off levels for the types of drugs tested, ranging

from 15 nanograms per milliliter (ng/mL) for Cannabis to

2000 ng/mL for Opiates. The cut - off levels are used to limit

the possibility of a positive result due to secondhand exposure.

Respondent ' s sample tested presumptive positive for

Benzo y lecgonine, a metabolite which demonstrates the presence of

cocaine in the subject ' s system. Since the sample was positive,

it was sent for gas chromatography/mass spectrometry (GCMS)

confirmation testing. GCMS tests with greater specificity for

the presence of Benzoylecgonine. Respondent ' s sample tested

positive at a level of 506 ng/mL , a significant amount above the

screening threshold of 300 ng/mL . The results were reported to

ECUA ' s medical review officer and to ECUA.

11. Upon learning of the positive test results,

Respondent, at his own expense, requested that the second sample

be tested by anot her lab. The sample was sent to another

LabCorp testing facility in Raritan, New Jersey. The second

sample also tested positive for cocaine.

12. As an explanation for the positive test for cocaine,

Respondent testified that his dentist had given him ane sthetics

for some serious dental work that may have included cocaine.

Respondent produced his medical records, but no cocaine or

cocaine derivative (including the metabolite for cocaine) was

listed among the anesthetics given by the dentist. Septocaine,

one of the anesthetics used, is not cocaine or a cocaine

derivative according to Dr. Carol Law, from LabCorp. Respondent

further attempted to explain the presence of cocaine in his

urine by stating that the dentist had given him some anesthetics

for pain that he did not put on the charts because they were

illegal substances, such as cocaine. This testimony is not

credible, and no credible evidence was produced at hearing to

demonstrate any of the samples were adulterated, mixed up, or

improperly tested. Given these facts, Petitioner has

established that Respondent tested positive for cocaine in

violation of ECUA drug policy.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See Administrative Law Judge Services Contract

effective March 3, 2006; § 120.65(7), Fla. Stat. (201 1 ).

14. The ECUA Human Resource Policy Manual contains

provisions, set forth above, that prohibit an employee from

using controlled substanc es. Respondent had notice of and knows

about these policies, by virtue of his acknowledgement of

receipt of the handbook and policies, as well as his testimony.

15. Because Respondent violated the above - referenced

policies of ECUA and violated state law regarding the use of

controlled substances, in this matter cocaine, Respondent ' s act

violated s ections F - 4(29) and (33) of the ECUA Human Resources

Policy Manual.

16. Respondent provided no reasonable explanation for the

presence of cocaine in his system following his work - related

accident and required urine test incident to the accident. His

allegation that his dentist administered cocaine or a cocaine

derivative to him is not supported by any evidence of record.

Accordingly, Respondent ' s testimony on t his point is not deemed

credible.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Executive Director of ECUA find that

Respondent violated sections F - 4(29) and (33) of the ECUA Human

Resources Policy Manua l and impose such discipline on Respondent

as deemed appropriate.

DONE AND ENTER ED this 31st day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 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 31st day of January , 2012 .

COPIES FURNISHED :

John Edmund Griffin, E squire

Carson and Adkins

2930 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

A. J. Stovall, II

8351 Calvert Street

Pensacola, Florida 32514

Richard C. Anderson, Director

Human Resources and

Administrative Services

Emerald Coast Utilit ies Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant to p aragraph 7(m) o f the contract between ECUA and

DOAH, all parties have the right to submit written argument

within 10 days of the issuance of this Recommended Order with

the Executive Director of the ECUA as to any appropriate penalty

to be imposed. The Executive Directo r will then determine the

appropriate level of discipline to be imposed upon the

Respondent.