STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1250

)

LUCILLE MARIE ROYCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 11, 1979, in Milton, Florida. 1/

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: T. A. Leonard, Jr., Esquire

Lindsay & Andrews, P.A. Post Office Box 586 Milton, Florida 32570

ISSUE

At issue herein is whether or not the Respondent, Lucille Marie Royce, is guilty of alleged illegal possession of Marijuana, Librium and Darvocet capsules as alleged by the Petitioner's Administrative Complaint dated May 14, 1979, charging that the Respondent, on or about October 20, 1978, was arrested at her home by officers of the Santa Rosa County Sheriff's Department and found to be in illegal possession of Marijuana and the above-mentioned controlled substances, in violation of Subsection 464.21(d), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found.

1. On October 20, 1978, officers of the Sheriff's Office of Santa Rosa County, Florida visited the Respondent's premises in Santa Rosa County and, pursuant to an authorization to search her (Respondent's) premises, found and seized approximately sixteen items as reflected on Petitioner's Exhibit 14, which is an inventory of items received from Respondent's residence on October

   20, 1978. Among these items were Marijuana, three Darvocet 100 tablets and one Librium tablet. The Respondent was placed under arrest; however, the charges of possession of paraphernalia and possession of controlled substances wore nolle prossequi. 2/

   
   

2. Rosa Lee Wier, a Deputy Sheriff of Santa Rosa County, testified that she received a call on or about October 20, 1978, to the effect that there were Marijuana plants growing on the outside of Respondent's residence. Deputy Weir visited Respondent's neighborhood and observed what appeared to be Marijuana plants growing in the front and side of Respondent's residence. Deputy Weir returned to the Sheriff's Office and received assistance from two other deputies who returned to the scene and inquired of Respondent the reason the "flowers" were growing in her front yard. Respondent credibly testified that she did not know what kind of "flowers" there were growing in her front yard but that she suspected that they were Marijuana plants which had been planted by Navy student pilots who were living in the apartment building next door. Following the deputies' discovery that the plants were in fact Marijuana plants, they requested, and obtained, a voluntary search release from Respondent to search her premises for other controlled drugs. Based on the ensuing search, several packets of Marijuana, three Darvocet 100 tablets and one Librium tablet were found.

   
   

3. The Respondent is a Registered Nurse and has been since 1977. She has been a Licensed Practical Nurse since 1966. Prior to the subject incident, she has not been involved in any disciplinary actions by the Petitioner. Respondent, since 1977, was employed as a Charge Nurse in the Emergency Room at Santa Rosa Hospital. Respondent's supervisor on the three to eleven shift,

   Leilanim Fobtanilla, testified that Respondent was a good nurse who renders good health care. In this regard, character letters are introduced reflecting the fact that the Respondent is a person of unquestionable character. (Respondent's Exhibits 1 and 2.)

   
   

4. Respondent's supervisor testified that it was not unusual for nurses to withdraw medications intended for patients and and up taking such medications home when patients refuse to take it. According to Ms. Fobtanilla, this situation usually occur when patients refuse to take prescribed medication and the nurse, being busy, forgets to return the medication to the medication drawer. (TR 40-42.) In this regard, Respondent testified that this exact situation occurred to her on October 19, 1978, when she withdrew three Darvocet

   100 tablets and one Librium capsule which had been prescribed for a patient who refused to take the medication. Respondent testified that she put the medication in her uniform because she would never leave medication lying around in the Emergency Room due to the large number of patients milling around therein. Respondent took the medication home and while changing clothes, noted that she bad taken the medication home. She put the medication in her purse to return it to the hospital the following day. In this regard, Respondent's testimony was credible and was not attached by Petitioner's counsel.

   
   

5. Respondent testified that she inherited the residence at which she is now living from a former patient for whom she had served as a private duty nurse, Elton E. Nichols. Respondent testified that Mr. Nichols and she became lovers while she was caring for him as a private duty nurse. Mr. Nichols died of cancer on September 12, 1978, and willed the property to Respondent based on their relationship. Respondent testified credibly that she underwent a period of grief following Mr. Nichols' demise and that it was months before she could pull herself together to try to rid herself of his personal effects. It was

   noted that the subject incident occurred on October 20, 1978, which, of course, is approximately five weeks subsequent to Mr. Nichols' death.

   
   

6. Additionally, Respondent credibly testified that she has a metabolic disease which prevents her from taking drugs, even for a cold. She testified that she has no use for drugs and per instructions from her physicians, cannot take any narcotics. Respondent testified that she has never used drugs nor has she sold them. In these circumstances, it is the undersigned's considered opinion that the above facts do not warrant disciplinary action as contemplated by Subsection 464.21(1)(d), Florida Statutes, and I shall, therefore, recommend that the Administrative Complaint filed herein be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice visions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Petitioner, Board of Nursing, is derived from Chapter 464, Florida Statutes.

   
   

10. Insufficient evidence was offered to establish that the Respondent was guilty of the possession of a controlled substance as set forth in Chapter 464, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY.

RECOMMENDED this 31st day of October, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ Pursuant to leave, the parties were allowed through October 22, 1979, to submit proposed recommendations, which were received and considered by me in preparation of this Recommended Order.

2/ My reading of Chapter 464, Florida Statutes, leads me to conclude that the mere fact that criminal charges brought against Respondent were nolle prossequi

is not a bar to the administrative proceedings herein pursuant to Chapters 120 and 464, Florida Statutes.

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

T. A. Leonard, Jr. Esquire Lindsay & Andrews, P.A. Post Office Box 586

Milton, Florida 32570

Docket for Case No: 79-001250

Orders for Case No: 79-001250