20-001528 Marion County School Board vs. Michael Hickman Status: Closed Recommended Order on Wednesday, September 2, 2020.

Summary: School Board established just cause to terminate teacher for testing positive for marijuana, even though teacher had a valid medical marijuana registry card.

P RELIMINARY S TATEMENT

Dr. Heidi Maier, then - Marion County Superintendent of Schools, filed a

Complaint against Respondent on December 10, 2019 , recommending

termination of Respondent’s employment with the Board. Respondent timely

filed a Petition for Admin istrative Hearing to contest the recommendation of

termination, which was referred to the Division of Administrative Hearings

( “ Division ” ) on March 24, 2020 , for the assignment of an administrative law

judge , pursuant to the Board’s contract with the Divis ion .

The case was originally scheduled for final hearing live in Ocala, Florida

on August 5, 2020 , and was rescheduled via Zoom conference. The final

hearing commenced as scheduled on August 5, 2020 .

At the final hearing, Petitioner offered the testimo ny of Jaycee Oliver,

executive director of employee relations, and introduced Exhibits 1 through 9

and 12, w hich were admitted in evidence.

Respondent testified on his own behalf and did not introduce any exhibits

into evidence .

A one - volume Transcript o f the hearing was filed with the Division on

August 18, 2020 . The parties timely filed Proposed Recommended Orders

which have been considered by the undersigned in preparation of this

Recommended Order.

Unless otherwise noted, all references to the Florid a Statutes are to the

2019 version.

F INDINGS OF F ACT

1. Pet itioner is the constitutional entity authorized to operate, control,

and supervise the public schools within Marion County. See Art. IX, § 4(b),

Fla. Const.; § 1001.32 (2), Fla. Stat. Petitioner i s authorized to discipline

instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat.

2. At all times relevant hereto, Respondent was employed as a Student

Services Manager at Belleview High School in Marion County, pursuant to a

profe ssional services contract with the Board.

3. On November 5, 2019, following an incident in which Respondent

intervened in a physical altercation between students, Respondent complained to administration that he may have been injured.

4. Respondent was refe rred to a doctor who provides treatment to Board

employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen.

5. The results of the drug screen were positive for THC and marijuana

metabolites. Respondent does not dispute either the test administration or

results.

6. Respondent is approved by the State of Florida through the medical

marijuana use registry to obtain medical marijuana for his person al medical

treatment. Respondent obtained his medical marijuana card in October 2018,

and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991.

7. The Board maintains Alcohol an d Drug - Free Workplace Policy 6.33.

Section II.B. of that policy provides that “it is a condition of employment for

[a Board] employee to refrain from reporting to work or working with the

presence of drugs or alcohol in his or her body.”

8. Section IV.B. includes marijuana within a list of substances use of

which is considered illegal, pursuant to s ection 202 of the Controlled

Substances Act, 21 C . F . R ., §§ 1300.11 through 1300.15. However, this section

notes that “when the use of a controlled substance is pursuant to the

instructions of a physician, the employee shall immediately notify his/her

supervisor.”

9. At no time prior to his positive drug screen did Respondent notify his

supervisor that he was using medical marijuana.

10. Respondent has been employ ed by the Board since 2010. He began as

a physical education coach at Horizon Academy, where he was subsequently

promoted to a dean’s position. After the dean’s position at Horizon Academy

was eliminated, Respondent transferred to Emerald Shores Elementary

where he served as a dean. The record does not establish the date on which

Respondent transferred to Belleview, but Respondent served as a dean of

students at Belleview until he was placed on unpaid administrative leave on

January 13, 2020. Respondent was placed on paid administrative leave on

January 29, 2020, where he remains pending the outcome of this case.

C ONCLUSIONS OF L AW

11. The Division has jurisdiction over the subject matter of and parties to

this case, pursuant to section s 1012.33(6) , 120.569 , and 1 20.57(1), Florida

Statutes .

12. Petitioner seeks to terminate Respondent ’s employment, and has the

burden of proving the allegations set forth in its Complaint by a

preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence applicable to the loss of a license or

certification. C ropsey v. Sch. Bd. of Manatee C ty. , 19 So. 3d 351 (Fla. 2d DCA

2009), rev. denied , 29 So. 3d 1118 (Fla. 2010); Cisne ros v. Sch. Bd. of Miami -

Dade C ty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

13. Florida Administrative Code Rule 6A - 5.056 sets forth criteria for

suspension and dismissal of school personnel. Subsection (2) defines

Misconduct in Office in pertinent part, as follows:

(2) ‘Misconduct in Office’ means one or more of the

f ollowing:

* * *

(c) A violation of the adopted school board rules[.]

14. Respondent violated School Board Rule 6.33 when he reported to work

with the presence of marijuana in his body. See Marion C ty. Sch. Bd. R . 6.33

§ 2.B.

15. Respondent does not con test that he violated the applicable rule when

he tested positive for marijuana. Rather, Respondent argues that because he

took marijuana under the State of Florida’s recognized constitutional and

statutory medical marijuana provisions, he should not be te rminated from

employment. Respondent’s position is not supported by the statute governing

use of medical marijuana in Florida.

16. Article X, Section 29 of the Florida Constitution, adopted in 2016,

authorizes the use of medical marijuana to treat a “debil itating medical

condition” by a “qualifying patient” upon the recommendation of a physician who issues a certification to the patient. See Art. X, § 29, Fla. Const.

17. The Legislature enacted section 381.986, Florida Statutes, to

implement the constitutio nal provisions. The statute establishes the entire

regulatory scheme for administering the medical marijuana program,

including the definition of qualifying medical conditions, qualifying

physicians, the physician certification, establishing a medical mari juana use registry, issuance of identification cards to qualifying patients, and establishing medical marijuana treatment centers.

18. The plain language of the statute specifically recognizes the authority

of the Board to continue to enforce its Alcohol a nd Drug - Free Workplace

policy. See § 381.986(15)(a), Fla. Stat. (“This section does not limit the ability

of an employer to establish, continue, or enforce a drug - free workplace

program or policy.”) . Further, the statutes provides, “ [t] his section does not

require an employer to accommodate … any employee working while under

the influence of marijuana.” § 381.986(15)(b), Fla. Stat.

19. Essentially , Respondent’s argument is that it is unfair to terminate

him for taking medical marijuana that is legal under F lorida Law. 1

20. Respondent seeks an equitable remedy which the undersigned is not

authorized to provide. See Biltmore Constr. Co. v. Fla. Dep’t of Gen. Servs. ,

363 So. 2d 851, 853 - 54 (Fla. 1st DCA 1978) (“While an administrative agency

may exercise quasi - judicial power when authorized by statute, it may not

exercise power which is basically and fundamentally judicial such as the

grant of an equitable remedy.”) .

21 . Petitioner established just cause for terminating Respondent as

specified in the Complaint.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Marion County School Board enter a final order

upholding the charges against Respondent Michael Hickman , and terminate

Respondent, or impose other discipline consistent with Florida

Administrative Code Rule 6A - 5.056. 2

1 it penalizes him Respondent additionally argues that the Board’s position is unfair because

for use of medical marijuana to treat chronic pain, but would allow him to continue teaching

under the influence of opio i d pain medications, which he took for years prior to the

availability of medical marijuana.

2 The undersigned notes t hat the remedy of suspension is also available under the applicable

rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances.

D ONE A ND E NTERED this 2nd day of September , 2020 , in Tallahassee,

Leon County, Florida.

S UZANNE V AN W YK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 2nd day of September , 2020 .

C OPIES F URNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

(eServed)

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Dr. Diane Gullett, Superintendent

Marion County School Board

512 Southeast 3rd Street

Ocala, Florida 34471

Richard Corcoran

Commission er of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written excepti ons 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.