21-000302TTS Marion County School Board vs. Joshua Crill Status: Closed Recommended Order on Monday, May 24, 2021.

Summary: Petitioner proved Respondent engaged in misconduct by testing positive for marijuana on a urine drug screen.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARION C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 21 - 0302TTS

J OSHUA C RILL ,

Respondent .

/

R ECOMMENDED O RDER

On March 26, 2021, Yolonda Y. Green, an Administrative Law Judge

(ÑALJÒ) with the Division of Administrative Hearings (ÑDOAHÒ) , conducted a

hearing pursuant to section 120.57(1), Florida Statutes (2020) , via Zoom

conference technology.

A PPEARANCES

For Petit ioner: Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, F lorida 32789

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, F lorida 33761 - 1526

S TATEMENT OF T HE I SSUE

Whether Petitioner, Marion County School Board (ÑPetitionerÒ or Ñ School

BoardÒ), had just cause to terminate Re spondent, Joshua Crill (ÑRespondentÒ

or ÑMr. CrillÒ) , for misconduct in office as alleged in the Administrative

Complaint.

P RELIMINARY S TATEMENT

On November 30, 2020, Dr. Diane Gullett, Superintendent of Schools of

Marion County , filed an Administrative Co mplaint against Respondent

alleging Respondent produced a urine sample that tested positive for

marijuana. T he Superintendent alleged RespondentÔs positive urine drug

screen constitutes misconduct in office and amounts to just cause to warrant

disciplinary action. The Superintendent recommended that Respondent be

terminated from his employment with the School Board . Respondent timely

filed a request for formal administrative hearing to dispute the allegations in

the Administrative Complaint, which was refer red to DOAH on January 25,

2021, for assignment of an ALJ .

The case was assigned to the undersigned for a hearing. The case was

initially scheduled for March 30, 2021 , and was ultimately rescheduled for a

hearing on March 26, 2021. The final hearing comm enced as scheduled.

At the final hearing, Petitioner presented the testimony of Jaycee Oliver

(Executive Director of Employee Relations), and offered Exhibits 1 through

11, which were admitted into evidence. PetitionerÔs Exhibit 8 was admitted

over Respon dentÔs objection. Respondent testified on his own behalf and

presented the testimony of Shameka Murphy (Principal of Legacy

Elementary School). Respondent offered Exhibit 1, the deposition transcript

of Dr . Gullett, which was admitted into evidence.

Resp ondent initially listed Robert Hensel and Heather Guest as

witnesses. I nstead , the parties entered a stipulation regarding the testimony

of the witnesses, which is reflected below in the Findings of Fact. The parties

also filed their Joint Prehearing Stipu lation including facts upon which they

both agree, which have also been incorporated into the Findings of Fact below

to the extent they are relevant.

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

April 28, 2021 . The parties timely f iled Proposed Recommended Orders

(ÑPROÒ) , which have been considered in preparation of this Recommended

Order.

This proceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline. See McCloskey v. DepÔt of

Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to statutes

are to Florida Statutes (20 20 ), unless otherwise noted.

F INDINGS OF F ACT

Based on the testimony and exhibits offered at the hearing and the

stipulated findings of fact in th e Prehearing Stipulation, the following

Findings of Fact are made.

1. Petitioner is the constitutional entity authorized to operate, control,

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

Const.; s ee also § 1001.32(2), Fla. S tat. Petitioner is authorized to discipline

instructional staff. See § 1012.22(1)(f), Fla. Stat.

2. At all times relevant to the allegations in the Administrative

Complaint, Mr. Crill was employed as a teacher at Legacy Elementary

School , pursuant to a pr ofessional services contract.

3 . On October 20, 2020, Mr. Crill reported he was involved in an incident

at school . Specifically, a student in his classroom was climbing a bookcase .

Mr. Crill intervened to prevent the student from harming himself , when t he

student scratched Mr. CrillÔs arm causing a deep laceration and bleeding.

4. Mr. Crill was concerned about possible infection , and thus, he was

referred to a workersÔ compensation doctor who provides treatment to School

Board employees who are injured wh ile working. As part of the evaluation for

the possible workersÔ compensation - related injury, and consistent with School

Board policy, Mr. Crill submitted to a routine urine drug screen.

5 . The Medical Review O fficer (ÑMROÒ) , Dr. Stephen Kracht, provided a

report on the urine drug screen to the School Board , which found that the

urine sample tested positive for marijuana.

6. Mr. Crill did not challenge the administration of the test or seek a

second test to confirm the results of the first test. Mr. Cri ll also d id not

challenge the accuracy of the results of the drug screen as reported by the

MRO.

7 . Mr. Crill acknowledged that he used cannabidiol (Ñ CBD Ò) products to

treat pain related to wear and tear to his shoulder resulting from his military

service in the United States Marine Corp s (ÑUSMCÒ) before his employment

with the School Board. 1 At no point prior to his positive drug screen did

Mr. Crill notify his supervisor or the Board that he was using CBD. He only

used Ibuprofen before using the CBD prod ucts.

8. Mr. Crill pointed to his use of Tropic Twist for the positive test result.

Tropic Twist is an over - the - counter product and , according to the packaging,

is THC 2 infused.

9. Mr. Crill explained that he was introduced to Tropic Twist by a family

fri end during a gathering that took place before his injury. The family friend

gave Mr. Crill the Tropic Twist package of gummies. Mr. Crill did not fully

examine the package but he recalled that the package had a hemp leaf on the

front and appeared similar t o other CBD products that he previously used .

The packaging also had the phrase ÑTHC InfusedÒ on the front underneath

the package l abel , next to the hemp leaves. However, Mr. Crill testified that

he did not see the language regarding ÑTHC InfusedÒ on the p ackage.

1 Mr. Crill served in the U SMC from 2011 through 2015.

2 T HC ( tetrahydrocannabinol ) , is the primary psychoactive component of cannabis

(marijuana).

10. Throughout his testimony at hearing, Mr. Crill maintained that he

had no knowledge that the gummies contained the active ingredient for

marijuana , and as a result, he unintentionally ingested the THC . However,

he acknowledged that he regularl y consumed the Tropic Twist product .

11. Mr. Crill testified that he does not use marijuana or any other illegal drug s .

12. Mr. Crill has no prior history of testing positive for marijuana on a

drug screen. He submitted to a pre - employment drug screen w hen he began

working with the School Board, which returned negative. He also submitted

to a drug screen prior to being hired at Legacy Elementary School.

13. The School Board maintains a drug - free workplace policy. Petitioner

alleges Respondent violated po licy 6.33, entitled Ñ Alcohol and Drug - Free

Workplace . Ò

14. Pursuant to p olicy 6.33, section II.A., which constitutes notice to all

employees of School Board, Ñas a condition of their continued employmentÒ

with the School Board, all employees are required to fully comply with the

provisions of the Drug - f ree Workplace Policy.

15. Policy 6.33, s ection II.B. , provides that Ñit is a condition of employment

for an employee to refrain from reporting to work or working wit h the

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

1 6 . Policy 6.33, s ection IV.B ., provides that Ñ [e] mployees on duty or on

School Board property will not manufacture, distribute, dispense, possess or

use illegal drugs; nor will they be under the influence of such drugs.Ò

1 7 . Policy 6.33, s ection IV.B. , includes marijuana within a list of

substances which are considered illegal, pursuant to section 202 of the

Controlled Substances Act, 21 C.F.R. §§ 1300.11 through 1300.15.

1 8 . Policy 6.33, s ection VI.B.2. , provide s:

Circumstances under which testing may be

considered include but are not limited to the

following:

* * *

2. Accidents on the job causing personal injury to

self or others.

1 9 . The School Board is also a party to a collective bargaining agreement,

that governs, in part, terms and conditions of employment for Mr. Crill.

20 . According to Dr. Gullett, the recommended disciplinary action is

terminat ion when employees violate the School Board Ôs Drug - Free Workplace

Policy .

21 . Dr . Gullett issued a n Administrative Complaint recommending

Mr. CrillÔs termination due to his testing positive for marijuana on the urine

drug screen .

2 2 . Mr. Crill timely requested a hearing to challenge the proposed

termination and the School Board referred the matter to DOAH for an ALJ to

issue a recommended o rder based on those disputed facts .

2 3 . Mr. Crill did not exhibit any signs of being under the influence of

marijuana , no r did his principal , Shameka Murphy, observe any indication

that Mr. Crill was under the influence. Ms. Murphy did not observe any bas is

to order Mr. Crill to take a reasonable suspicion drug screen, which would be

required if she believed that he was under the influence of drug s or alcohol.

2 4 . The parties also stipulated that Mr. Hensel and Ms. Guest, who were

principals at some point during Mr. Crill Ôs tenure work ing with the School

Board, never had a basis to suspect that Mr. Crill was under the influence of

drugs or had reason to direct him to submit to a reasonable suspicion drug

screen.

Ultimate Finding s of Fact

2 5 . The greater w eight of the evidence demonstrates that Mr. Crill tested

positive for marijuana on a urine drug screen following an incident that

occurred while working .

2 6 . Petitioner proved by a preponderance of the evidence that Mr. Crill

violated School Board policy , namely: T he Alcohol and Drug - Free Workplace

Policy 6.33, Section II.B. , by having the presence of drugs in his body while

working as demonstrated by the positive urine drug screen .

C ONCLUSIONS OF L AW

2 7 . DOAH has jurisdiction over the subject matter of an d parties to this

case, pursuant to sections 1012.33(6), 120.569, and 120.57(1), Florida

Statutes.

2 8 . Petitioner seeks to terminate RespondentÔs 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. Cropsey v. Sch. Bd. of Manatee Cty. , 19 So. 3d 351 (Fla. 2d DCA

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

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

29 . The preponderance of the evidence standard requires proof by Ñthe

greater weight of the evidence,Ò BlackÔs Law Dictionary 1201 (7th ed. 1999),

or evidence that Ñmore likely than n otÒ tends to prove a certain proposition.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

30 . Petitioner alleges that Respondent violated School Board p olicy 6.33 ,

s ection II.B. , by having the presence of drugs (marijuana) or alcohol in his

body. Petitioner further alleges that RespondentÔs conduct constitutes

misconduct in office and he is , therefore, subject ed to termination of his

employment.

31 . Florida Administrative Code R ule 6A - 5.056 sets forth that just cause

is required for suspension and dismissal of school personnel. J ust cause

means cause that is legally sufficient based on each charge , which includes

misconduct in office.

3 2 . Rule 6A - 5.056(2) defines m isconduct in o ffice , in pertinent part, as

follows:

(2) ÓMisconduct in OfficeÔ means one or more of the

following:

* * *

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

3 3 . As stated in the Findings of Fact above, Petitioner proved Respondent

violated School Board p olicy 6.33 when he reported to work with the presence

of marijuan a in his body. As a result of his violation of the adopted S chool

B oard policy , RespondentÔs conduct constitutes misconduct in office.

3 4 . Petitioner also established just cause for terminating Respondent due

to his misconduct in office .

3 5 . Respondent doe s not dispute that his urine screen returned positive

for an active ingredient of marijuana . Instead, Respondent argues that his

use of the Tropic Twist caused the positive drug test, which he did not know

contained THC .

3 6 . Respondent argues in his PRO as follows:

29. The application of the School BoardÔs Drug - Free

policy, as described by the Superintendent, to the

facts of this case created an irrebuttable

presumption RespondentÔs employment must be

terminated. Under the interpretation of the policy

a dvanced by the Superintendent there are no facts

Respondent could present that could lead to

anything other than termination.

30. The School [Board] made no individualized

determination Respondent knowingly and/or

intentionally used a product leading to t he positive

test for marijuana. The School [Board] made clear

the only relevant factor for recommendation to

terminate RespondentÔs employment was the

positive result for marijuana.

3 7 . The plain language of policy 6.33 states that employees of the [Schoo l

Board] must refrain from workin g with the presence of drug s or alcohol in his

or her body. There is no indication of a required element of intent or

knowledge.

3 8 . Mr. Crill cites Recc L i America Inc. v. Hall, 692 So.2d 153 (Fla.1997) , in

support of h is challenge. However, Recc L i is not applicable here because the

workers Ô compensation statute contained language that precluded rebuttal of

t he presumption that a positive drug screen caused an in jury if the workplace

was designated Ñdrug - free.Ò

3 9 . Even if Resp ondentÔs argument that he did not intentionally or

knowingly ingest marijuana , the uncontradicted evidence , and what is

relevant here, established that Respondent consumed the Tropic Twist ,

which was infused with THC, and later tested positive for marijuan a .

Respondent also posed an analogy that his circumstances are similar to

marijuana hidden within a brownie . However, that was not the circumstance

here. Respondent testified that he was given the Tropic Twist package,

looked at it long enough to see the h emp le af , and later consumed the

gumm ies inside the package. U nlike the brownie example, information about

the contents of the package were readily visible and available to Respondent.

Therefore, RespondentÔs argument is not persuasive .

40 . Instead , Respo ndentÔs arguments offer compelling mitigating factors

in this case for Petitioner to apply disciplinary action other than

termination. 3 For instance, Respondent has been routinely tested for drugs

between 2011 through 2019, with negative results. Responden t uses CBD

products to alleviate pain that resulted from military service. He credibly

testified that he does not use illegal drugs. Moreover, Respondent has been

employed with Petitioner from 2015 through 2019, nearly five years, and

there is no evidence that his principals, including his current principal, had

3 The undersigned acknowledges that the remedy of susp ension is also available under the

applicable rule. Further, the parties made no argument that the School BoardÔs discretion to

impose a different penalty is foreclosed, or that the School Board may not consider mitigating

circumstances.

any reason to suspect that he was, at anytime, under the influence of drugs.

Finally, there is no evidence of any prior disciplinary action against

Respondent.

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

finding that Respondent , Joshua Crill, engaged in misconduct in office and

there is just cause to terminate Respondent, or impose other disc ipline

consistent with Florida Administrative Code Rule 6A - 5.056 (2).

D ONE A ND E NTERED this 24th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 24th day of May, 2021.

C OPIES F URNISHED :

Mark Herdman, Esquire Mark E. Levitt, Esquire

Herdman & Sakellarides, P.A. Allen, Norton & Blue, P.A.

Suite 110 Suite 100

29605 U.S. Highway 19 North 1477 West Fairbanks Avenue

Clearwater, Flor ida 33761 - 1526 Winter Park, Florida 32789

Dr. Diane Gullett, Superintendent Matthew Mears, General Counsel

Marion County School Board Department of Education

512 Southeast Third Street Turlington Building, Suite 1244

Ocala, Florida 34471 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 15 1 4

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.