STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1239

) THERESA KATHLEEN STEWART, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 6501 Arlington Expressway, Building B, Conference Room 205, Jacksonville, Florida, at 9:00 a.m., October 11, 1977.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1005 Blackstone Building

Jacksonville, Florida 32202

For Respondent: William Travis, Esquire

4611 Pinewood Road

Jacksonville, Florida 32210

ISSUES

1. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.:

   
   

   On January 2, 1977, Officer J.W. Carlyle of the Jacksonville Beach Police Department, Jacksonville Beach, Florida, acting in an undercover capacity, purchased from the licensee for $10.00, six capsules of what the licensee represented to him to be mescaline, which was in fact liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time the licensee threw to the ground, a vial containing six foil packets which upon analysis proved to be phenoharbitol, a controlled substance.

   
   

2. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.:

   
   

   Licensee was charged with felony of possession of a controlled substance, to wit: phenobarbital, in Case No. 77-249 CFS in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication was withheld and she was placed on probation for a period of two years, with a special

   condition that she enroll and follow through with a drug treatment program, in- patient if necessary.

   
   

3. There were several other substantive violations found in the Administrative Complaint, specifically in paragraphs 1, 2 and 5 of that complaint. These substantive paragraphs were withdrawn from consideration upon the Motion to Withdraw by the Petitioner's attorney and the agreement of the Respondent's attorney.

FINDINGS OF FACT

1. Theresa Kathleen Stewart, R.N., holds License No. 73310-2, with the State of Florida, Board of Nursing.

   
   

2. In the course of the hearing, the following factual stipulation was entered into between the parties:

   
   

3. On January 2, 1977, Officer J. W. Carlyle of the Jacksonville Beach Police Department, acting in an undercover capacity, purchased from the licensee for $10.00 six capsules of what the licensee represented to be mescaline. In fact, the substance was liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time, (January 2, 1977), the licensee threw to the ground the vial containing six foil packets which upon analysis proved to be phenobarbital, a controlled substance. The charges brought from the arrest for the possession and sale of the alleged mescaline were dropped when the chemical analysis of the substances proved them to be liver pills and/or vitamins.

   
   

4. Out of the events of January 2, 1977, the licensee was charged with a felony of possession of a controlled substance, to wit: phenobarbital, in Case NO. 77-249 CFS, in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication of guilt was withheld and she was placed on probation for a period of two years with a special condition that she enroll and follow through with a drug treatment program, in-patient if necessary.

   
   

5. Based upon the facts recited, the Petitioner claims that the Respondent has violated 464.21(1)(b)(c) and (d), F.S. which states:

   
   

   "GROUNDS FOR DISCIPLINE--

   The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:

   * * *

   (b) Unprofessional conduct which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding, actual injury need not be established."

   An examination of the facts stipulated to as the basis for consideration of this case, do not constitute a sufficient showing that the Respondent has been guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S.

   
   

6. The second substantive violation alleged by the Petitioner pertains to 464.21(1)(c), F.S., which reads as follows:

   
   

   "GROUNDS FOR DISCIPLINE.--

   The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:

   * * *

   (c) Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893."

   
   

   Again, an analysis of the facts presented did not warrant the conclusion that the Respondent is guilty of habitual intemperance or addiction to the use of controlled substances found in 893, F.S.

   
   

7. The third substantive violation asserted by the Petitioner pertains to 464.21(1)(d), F.S., whose provisions are:

   
   

   "GROUNDS FOR DISCIPLINE--

   The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:

   * * *

   (d) Engaging in the possession, sale or distribution of controlled substances as set forth in chapter 893, [for any other

   than legitimate purposes]."

   
   

   The facts agreed to in this cause establish that the Respondent was in possession of a controlled substance as set forth in 893, F.S., for other than legitimate purposes. Therefore, the licensee is held accountable for the penalties which may be imposed from such possession.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

9. Based upon an examination of the facts in this cause, the Petitioner has failed to establish a violation of 464.2l(1)(b), F.S., as alleged.

   
   

10. Based upon an examination of the facts in this cause, the Petitioner has failed to establish a violation of 464.21(1)(c), F.S., as alleged.

11. Based upon an examination of the facts in this cause, the Petitioner has established a violation of 464.21(1)(d), F.S., thereby subjecting the Respondent to the penalties inherent in such a violation.

RECOMMENDATION

At the conclusion of the factual stipulation, the parties were given an opportunity to present matters in aggravation and mitigation. Counsel for the Petitioner waived the opportunity to submit matters in aggravation. The Respondent presented mitigation. Some of the items of mitigation may be found in the Respondent's Exhibits 1 through 3 admitted into evidence. Exhibit 1 is a letter from a counselor with the Peninsula Manpower Training Skills Center in Hampton, Virginia. This letter states that the Respondent is enrolled in a horticulture class at the Vocational Technical Education Center of Hampton, Virginia, and is maintaining excellent grades and attendance standards. It also states that Respondent is working part-time at a local florist. The second Respondent's exhibit is a letter from the Commonwealth of Virginia, Department of Corrections, Division of Probation and Parole Service, District 19. This is a letter from the Probation/Parole Officer, Drug/Alcohol Specialist, who states that the Respondent is doing well in her probation period. The final Exhibit No. 3, by Respondent, is a letter from a Rehabilitation Counselor with the Drug Rehabilitation Program of the City of Hampton, Virginia, which shows that Respondent is progressing well in the drug rehabilitation program. Respondent at present lives with her husband and eighteen months old child. It is the Respondent's desire that she be given probation for the offense, in order to allow her a clean record, should she apply for a license to be a registered nurse in the State of Virginia. It is her intention to make such application if possible.

After considering the nature of the factual stipulation and the matters offered in mitigation, it is recommended that the license of Respondent to practice nursing in the State of Florida be suspended for a period of two years.

DONE and ENTERED this 25th day of October, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Julius Finegold, Esquire 1005 Blackstone Building

Jacksonville, Florida 32202

Herbert V. Kelly, Jr., Esquire 2600 Washington Avenue

First and Merchants National Bank Building Post Office Box 78

Newport News, Virginia 23607

Ms. Theresa Kathleen Stewart 5927 Madison Avenue

Newport News, Virginia 23605

William Travis, Esquire 4611 Pinewood Road

Jacksonville, Florida 32210

Docket for Case No: 77-001239

Orders for Case No: 77-001239