STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1500

)

MICHELLE MARIE LAHANSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Melbourne, Florida, on June 6, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Tracey S. Hartman, Senior Attorney

Department of Professional

Regulation Northwood Centre

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792 For Respondent: no appearance

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent violated certain disciplinary provisions governing the practice of nursing and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 26, 1990, Petitioner alleged that Respondent, while employed as a nurse at a hospital, unlawfully removed from the hospital two packages of Darvocet N-100's and also tested positive for cannabis use, which is in violation of Sections 464.018(1)(h) and 464.018(1)(i), Florida Statutes.

At the hearing, Petitioner called two witnesses and offered into evidence six exhibits, which were all admitted into evidence. Respondent made no appearance.

A transcript was filed on June 26, 1991. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Continually since September 29, 1980, through the present, Respondent has been licensed as a registered nurse, holding license number RN 1198172. There is no evidence of any prior discipline involving Respondent.

   
   

2. Respondent was employed by Indian River Memorial Hospital from 1987 through the time in question. On September 2, 1989, Respondent was about to leave the hospital at the end of her shift. She laid down her purse, which was lying open on a counter. Another nurse noticed that two hospital pharmacy bags were inside the purse and that they contained at least eight pills of Darvocet N-100's.

   
   

3. Darvocet N-100 is propoxyphene napsylate which is, according to the 1991 Physician's Desk Reference, a "mild narcotic structurally related to methadone" with a potency of two-thirds to equal that of codeine. It is indicated for the relief of "mild to moderate pain." Darvocet N-100 is about as addictive as codeine.

   
   

4. One of Respondent's supervisors later determined, by comparing pharmacy records to medical charts for patients, that the pills had been dispensed for a patient for whom Respondent had been responsible on September 2.

   
   

5. A few days after the incident, Respondent's supervisors confronted her with the accusation. Respondent immediately returned one envelope with less than the amount of Darvocet N-100's that she had taken.

   
   

6. Respondent submitted to a urinalysis on September 12, 1989. Although showing nine negative results, including for propoxyphene, the report disclosed the presence of cannabis in Respondent's urine.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

8. Petitioner has jurisdiction over the licenses of nurses. Section

   1. Grounds for discipline include:

      
      

      1. 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.

      2. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

   
   

   Section 464.018(1).

   
   

9. Section 893.03(4)(p) identifies the active ingredient in Darvocet N-100 as a Schedule IV controlled substance. Section 893.03(1)(c)4. identifies cannabis as a Schedule I controlled substance.

10. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The misappropriation of a drug constitutes unprofessional conduct for a nurse. The same act also constitutes the unlawful possession of a controlled substance. Together, the two violations constitute a single incident for which a penalty is merited.

    
    

12. The presence of cannabis in Respondent's urine is proof of the possession of a controlled substance. Respondent's possession of cannabis constitutes a separate violation.

    
    

13. Rule 21O-10.011(j) provides that the penalty range for unprofessional conduct is from reprimand to suspension, probation, and fine for conduct of the type described in Rule 21O-10.005(1)(e). Rule 21O-10.005(1)(e)3. is the misappropriation of drugs. Rule 21O-10.011(k) provides that the penalty range for the unlawful possession of controlled substances is a $250 fine and probation to a five-year suspension followed by probation.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Nursing enter a final orders reprimanding Respondent, imposing an administrative fine of $250, and suspending her license until she completes a program for impaired nurses.

ENTERED this 3rd day of July, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 3rd day of July 1991.

COPIES FURNISHED:

Tracey S. Hartman, Senior Attorney Department of Professional Regulation Northwood Centre

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Michelle Marie Lahanse 1708 S. Park Ave.

Melbourne, FL 32901

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Judie Ritter Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

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. Some agencies allow a larger period within 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: 91-001500

Orders for Case No: 91-001500