STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0624

)

MARK C. ALSAKER, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 9, 1988, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tobi C. Pam, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mark C. Alsaker, pro se

2972 Southwest 17th Street Fort Lauderdale, Florida 33312

BACKGROUND

In an administrative complaint filed on November 13, 1987, petitioner, Department of Professional Regulation, Board of Nursing, charged that respondent, Mark C. Alsaker, a registered nurse, had violated Subsections 464.018(1)(f), (g), and (j), Florida Statutes (1987). It is alleged that, after being administered a random urinalysis on June 9, 1987, respondent tested positive for Opiates and that he was then on Board imposed probation and was prohibited from consuming any controlled substances. The complaint alleges further that, by virtue of the foregoing, respondent violated a Board order, engaged in the possession of a controlled substance for other than a legitimate purpose and was unable to practice nursing with reasonable skill and safety by reason of his use of drugs. On June 3, 1988 petitioner filed an amended administrative complaint adding a second charge that respondent tested positive for Opiates after another random urinalysis was administered on September 23, 1987.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on February 9, 1988, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 11, 1988, the final hearing was

scheduled on June 9, 1988 in Fort Lauderdale, Florida. The case was transferred from Hearing Officer Don W. Davis to the undersigned on June 8, 1988.

At final hearing, petitioner presented the testimony of George C. Goldschmidt, a DPR investigator, and Paul F. Anderson, a medical laboratory technologist who was accepted as an expert in toxicology. It also offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent testified on his own behalf.

The transcript of hearing was filed on June 23, 1988. Proposed findings of fact and conclusions of law were filed by petitioner on July 7, 1988. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order. The issue is whether respondent's license as a registered nurse should be disciplined for the reasons set forth in the administrative complaint, as amended.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida.

   
   

2. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test.

   
   

3. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances.

   
   

4. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability.

   
   

5. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR

   investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine.

   
   

6. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence.

   
   

7. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

9. Because respondent's professional license is subject to revocation in this proceeding, the Board must prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. The statutory provisions which Alsaker is alleged to have violated are set forth in Subsection 464.018(1)(f), (h) and (j), Florida Statutes (1987), and read as follows:

    
    

    464.018 Disciplinary actions.--

    (1) The following acts shall be grounds for disciplinary action set forth in this section:

    * * *

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

    * * *

    (h) Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any dental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the secretary or his designee that

    probable cause exists to believe that the licensee is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public.

    The department shall be entitled to a summary procedure provided in s. 51.011. A nurse affected by the provisions of this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of nursing with reasonable skill and safety to patients.

    * * *

    (j) Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

    
    

11. As to the last cited provision, there is clear and convincing evidence that, by testing positive for marijuana on two occasions, Alsaker knowingly violated a lawful order of the Board, to wit, the order of November 8, 1984. Therefore, Count I of the complaint has been sustained. In reaching this conclusion, the undersigned has, in the absence of any contradictory evidence, accepted the reliability of the testing results.

    
    

12. It is charged further that Alsaker engaged in "unprofessional conduct" and that he is "unable to practice nursing with reasonable skill and safety to patients by reason of . . . use of . . . drugs." 2/ There is no evidence that Alsaker's consumption of an undisclosed amount of marijuana on two occasions deviated from the "minimal standards of acceptable and prevailing nursing practice." Indeed, there is no record evidence to show what the "minimal standards" are, and the statutory language itself suggests that the improper conduct must occur in a professional setting rather than during off-duty hours when the license is not used. Finally, there is no evidence that Alsaker's use of marijuana on two occasions has rendered him unsafe or unfit to safely practice nursing. The only evidence on this issue is respondent's testimony that his job has been performed complaint-free and in a safe and skillful manner. While admittedly self-serving, this testimony was not contradicted. Therefore, Counts II and III must fail.

    
    

13. In her proposed order, counsel recommends that Alsaker's license be suspended until he demonstrates to the Board his ability to practice safely and that it then be placed on two years' probation. Since there has been no showing

that Alsaker's ability to safely and skillfully practice nursing has been impaired, a suspension of his license is not warranted. However, his license should be placed on probation for two years, and respondent should be required to regularly attend either Narcotics Anonymous or Alcoholics Anonymous meetings during that period of time. He should also be required to submit to random urinalysis tests under such terms and conditions as the Board finds necessary.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection

464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary.

DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.

ENDNOTES

1/ Respondent's license had been previously suspended by an order dated August 24, 1983.

2/ Although the administrative complaint alleged that Alsaker engaged in the possession of a controlled substance for other than a legitimate purpose, no statutory provision proscribing this conduct was cited, and agency counsel did not refer to this ground in her proposed order. Accordingly, it is assumed the allegation has been abandoned.

APPENDIX

Petitioner:

1. Covered in finding of fact 1. 2-4. Covered in finding of fact 2. 5-7. Covered in finding of fact 3. 8-12. Covered in finding of fact 4. 13-17. Covered in finding of fact 5.

COPIES FURNISHED:

Tobi C. Pam, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Mark C. Alsaker

2972 Southwest 17th Street Fort Lauderdale, Florida 33312

Ms. Judie Ritter Executive Director Room 504

111 East Coastline Drive Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 0086358

DOAH CASE NO.: 88-0624

MARK ALSAKER,

Respondent.

/

ORDER

Respondent, Mark Alsaker, holds Florida License No. 1174892 as a registered nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board

pursuant to 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

The Board of Nursing met on August 18, 1988, in Orlando, Florida, to take final agency action. The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board accepts and adopts the Findings of Fact contained in the Recommended Order.

CONCLUSIONS OF LAW

The Board accepts and adopts the Conclusions of Law contained in the Recommended Order.

PENALTY

Respondent rejects the recommended penalty of two years probation as too lenient and hereby orders that the license of Mark Alsaker is suspended for one year and thereafter until such time as the licensee personally appears before the Board and can demonstrate his competency to safely engage in the practice of nursing. Such demonstration shall include but not be limited to an in depth psychological evaluation from a psychiatrist, psychologist or other licensed mental health counselor experienced in treatment of substance abuse and confirmation of attendance at Alcoholics Anonymous or Narcotics Anonymous or other counseling. As stated reasons for its increase of the recommended penalty, the Board relies upon Respondent's history of substance abuse as well as his violation of a Board order while on probation for a similar offense.

Within (30) thirty days the licensee shall return his license to the Board office, 111 Coast Line Drive, East, Suite 504, Jacksonville, Florida 32202 or shall surrender the license to an investigator of the Department of Professional Regulation.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE and ORDERED this 6th day of October, 1988.

Jeanne Stark, Chairman Florida Board of Nursing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to Mark C. Alsaker, 2972 S.W. 17th Street, Fort Lauderdale, Florida 33312, by United States Mail, this 6th day of October, 1988.

Judie Ritter Executive Director

FILED October 6, 1988, Florida State, Board of Nursing.

Docket for Case No: 88-000624

Orders for Case No: 88-000624