STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7857

) ROGER WILLIAM SKEBELSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 3, 1991. The Division of Administrative Hearings received the hearing transcript on June 17, 1991, and the parties filed proposed recommended orders on June 24 and July 5, 1991. The parties' proposed findings have all been adopted, in substance.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Carol C. Murphy, Esquire

Post Office Box 1084 Lakeland, Florida 33802

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated October 16, 1990, petitioner alleged that respondent "at all times material . . . a licensed registered nurse . . . employed by Kimberly Nurse Travelers and assigned to Bay Medical Center . . . [o]n or about May 12, 1989, . . . removed a pill from the medication cabinet for his own personal use . . . and ingested same"; that respondent "subsequently signed a sworn statement admitting to having removed a Darvocet N-100 from hospital stock for his own use and to having taken a Dalmane (Benzodiazepine) on or about May 11, 1990"; that respondent had no prescription for either drug "and did not record in hospital records that he had taken a medication off of the medication cart for his own use," all "in violation of Section 464.018(1)(h), Florida Statutes."

FINDINGS OF FACT

1. Respondent holds a registered nurse's license, No. RN 1992962, and has at all material times. In May of 1989, as an employee of Kimberly Nurse Travelers, an agency with whom Bay Medical Center had contracted for his services, he worked as a nurse at Bay Medical Center in Panama City, Florida.

   
   

2. While working the night shift as the triage nurse on May 12, 1989, respondent helped himself to a Darvocet N-100, a pill he ingested 20 minutes later. At the time and at hearing under oath, he said he took the pill because he had a headache.

   
   

3. Darvocet is a prescription drug, and respondent had no prescription for it. But petitioner's own witness conceded that Darvocet "is not considered a drug of choice for people that have a problem with drugs" (T.61) and should not, in the dosage respondent took, "impair someone's judgment and ability to perform." T.66.

   
   

4. A co-worker reported respondent, who was in plain view when he took the pill from the cart. Later the night of May 12, 1991, at the behest of supervising personnel, respondent supplied a urine specimen, which tested positive for benzodiazepine, possibly the residue of the 15-milligram Dalmane tablet respondent took the night before, when he was off duty.

   
   

5. Respondent's co-workers who testified found no fault with his performance as a nurse, this incident aside. But theft of the Darvocet pill, and its ingestion on duty without a prescription, violated hospital policy and fell below the minimal standards of acceptable and prevailing nursing practice.

   
   

   CONCLUSIONS OF LAW

   
   

6. Since HRS referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

7. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

   391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

   See Addington vs. Texas, 441U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

   393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

8. Section 464.018, Florida Statutes (1989) specifies the grounds on which petitioner is authorized to discipline licensees, among which is:

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

Section 464.018(1)(h), Florida Statutes (1989). A Board rule defines unprofessional conduct to include "[m]isappropriating supplies, equipment or drugs . . . ." Rule 210-10.005(1)(e)3., Florida Administrative Code.

Petitioner has proved a violation of rule and statute clearly and convincingly.

RECOMMENDATION

In the absence of aggravating or mitigating circumstances, Rule 21O- 10.011(2)(j), Florida Administrative Code, authorizes penalties for infractions of Rule 21O-10.005(1)(e), Florida Administrative Code, of reprimand, fine, probation and/or suspension. Nothing was proven in aggravation. In mitigation, it was shown that this was a first offense, apparently an isolated occurrence.

It is, accordingly, recommended that petitioner reprimand respondent, and levy an administrative fine against him in the amount of five hundred dollars ($500).

RECOMMENDED this 13th day of August, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991.

COPIES FURNISHED:

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, FL 323990-0792

Tracey S. Hartman, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792

Carol C. Murphy, Esquire Post Office Box 1084 Lakeland, FL 33802

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-007857

Orders for Case No: 90-007857