STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0391

)

ANNELLE C. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 31, 1994, in Tallahassee, Florida. By stipulation, Respondent Annelle C. Jones and a witness, Deputy J. C. Maney, participated by telephone.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Annelle C. Jones

(representing herself)

520 South 33rd Street N.W.

Winter Haven, Florida 33880-1809 STATEMENT OF THE ISSUES

An administrative complaint dated December 14, 1993, alleges that Ms. Jones violated section 464.018(1)(i), F.S. The issue for disposition is whether that violation occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Ms. Jones responded to the Administrative Complaint with a request for formal administrative hearing and the case was forwarded to the Division of Administrative Hearings.

Shortly thereafter, Petitioner filed a motion for summary recommended order based on Ms. Jones' admission that she was convicted of "manufacture of cannabis." The motion was denied in an order entered April 5, 1994. Petitioner then moved for leave to amend the administrative complaint to allege a violation of section 464.018(1)(c), F.S. instead of the violation of subsection (1)(i).

Without objection, the motion was granted.

Arrangements were made for the hearing to be conducted by telephone conference, with agreement by both parties.

After several continuances and abeyances, the Petitioner moved for restatement of the original administrative complaint. The motion was granted, over Respondent's objection, at the formal hearing. Her objection, never filed in writing, was that the amended complaint would be harder to prove.

In support of its allegation, the Petitioner presented testimony of Deputy Maney, Polk County Sheriff's Department. Petitioner's exhibits A through G were received in evidence without objection. Ms. Jones testified in her own behalf and her one exhibit, a composite marked Respondent's exhibit #1, was received in evidence.

After the hearing, Petitioner filed a proposed recommended order with proposed findings of fact. Those findings are substantially adopted here.

FINDINGS OF FACT

1. Respondent, Annelle C. Jones, is now, and has been at all relevant times, a licensed practical nurse, having been issued license number PN 1091101. Ms. Jones resides in Winter Haven, Polk County, Florida.

   
   

2. On September 28, 1992, a final judgment was entered dissolving the marriage of Gary Jenkins and Annelle Jones. It was an acrimonious divorce and he vowed to "get even".

   
   

3. That same evening, September 28th, the Department of Health and Rehabilitative Services sent a child protective services worker to Ms. Jones' home to interview her child about a report they received that she used marijuana. The next day, September 29, 1992, Deputy J. D. Maney of the Polk County Sheriff's office went to Ms. Jones' residence on a tip that she was growing marijuana. She admitted him into her residence and gave permission for his search.

   
   

4. On a bed in the bedroom, Deputy Maney found a purse which Ms. Jones identified as hers. She agreed to dump out the contents, and in the bottom, mixed with sand and dust, was a flattened small marijuana butt. Deputy Maney found marijuana leafy material on the window sill. In the back yard he found seven marijuana plants growing in cut-off milk jugs. They were alive, but barely alive. There were some dead plants that had been stripped and tossed under an oak tree. Deputy Maney did a field test on the plants, confirming they were marijuana, and arrested Ms. Jones.

   
   

5. Ms. Jones was released on her own recognizance and was given a drug screen, the result of which was negative. She was later tried and was found guilty of one count of manufacture (growing) marijuana.

   
   

6. The sentence imposed on April 2, 1993, was three years probation, with conditions that Ms. Jones avoid alcohol or illegal drugs and maintain employment. After consistently producing negative drug test results and otherwise complying with probation conditions, Ms. Jones has been released from probation and is in the process of obtaining her master's degree in social work.

   
   

7. Ms. Jones vehemently denies using illegal drugs, and there is no direct evidence that she has used them. She also claims that the plants and residue found at her home were her ex-husband's. That bare allegation is not enhanced

   by any corroborative evidence or explanation from Ms. Jones. She did not explain, for example, why she did not dispose of the marijuana at any time prior to the deputy 's search. She asserted to the deputy and at the hearing that she knew why he was at her home since HRS had already been there on a tip that she was growing marijuana. Yet even after HRS came, the plants still remained. She also did not explain the presence of the marijuana in her purse.

   
   

8. Marijuana (cannabis) is a controlled substance under chapter 893, F.S. Pursuant to section 893.03(1), F.S. it has no currently accepted medical use in treatment in the United States. Ms. Jones did not claim that her possession was for a legitimate purpose.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to sections 120.57(1), F.S. and 455.225(4), F.S.

   
   

10. The Board of Nursing is authorized to revoke, suspend or otherwise discipline the license of a practical nurse who commits the following violation of Section 464.018(1), F.S.:

    
    

    1. 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.

       
       

11. As required, the petitioner has proven by clear and convincing evidence that Ms. Jones committed the alleged violation by her possession of marijuana for other than legitimate purpose. See Ferris v. Turlington, 510 So 2d 292 (Fla. 1987).

    
    

12. Ms. Jones' chagrin at the agency's need to prove a violation of section 464.018(1)(i), F.S. rather than section 464.018(1)(c), F.S. is misplaced. The violation of Section 464.018(1)(c), F.S. is described as:

    
    

    Being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

    
    

    Crimes involving illegal drugs, and not simply the use of illegal drugs, have been held to directly relate to the practice of a medical profession. See Rush

    v. Department of Professional Regulation, 448 So 2d 26 (Fla. 1st DCA 1984).

    
    

13. Counsel for Petitioner recommends that Ms. Jones be disciplined with a six-month suspension, probation, fine of $1000 and a reprimand. The mitigating factors described in rule 61F 7-8.006(4), F.A.C., suggest that a less severe penalty is appropriate. There is no evidence of other violations by Ms. Jones. No patients were harmed or threatened. She has successfully satisfied the terms imposed by the court for her crime and she is working to make a new life after dissolving a bad marriage.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a final order be entered finding that Annelle C. Jones violated section 464.018(1)(i), F.S. and that the following penalties be imposed: reprimand and $100.00 fine.

DONE AND RECOMMENDED this 28th day of December, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1994.

COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, FL 32308

Harold D. Lewis, Esquire

Agency for Health Care Administration

325 John Knox Road Tallahassee, FL 32303

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Joseph S. Garwood, Sr. Atty. Agency for Health Care Admin. 1940 N. Monroe Street Tallahassee, FL 32399-0792

Annelle C. Jones

520 33rd Street, N.W.

Winter Haven, FL 33880-1809

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA BOARD OF NURSING

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. CASE NO. 93-08630

DOAH CASE NO. 94-0391

ANNELLE C. JONES,

Respondent.

/

FINAL ORDER

Respondent, ANNELLE C. JONES, holds Florida license number LPN 1091101 as a licensed practical nurse. Petitioner has filed an Administrative Complaint seeking disciplinary action against the license and the matter proceeded to formal hearing pursuant to Section 120.57(1), Florida Statutes.

This matter appeared before the Board of Nursing on February 10, 1995, in Tallahassee, Florida, for consideration of the Recommended Order pursuant to Section 120.57(1), Florida Statutes. Petitioner was represented by Laura P. Gaffney, Attorney at Law. Respondent was not present but had been properly notified of the hearing. The parties did not file Exceptions to the Recommended Order. However, pursuant to Section 120.57(1)(b)10, Florida Statutes, the Board made a complete review of the record.

The Recommended Order is attached to and made a part of this Final Order as outlined further with the Exceptions.

FINDINGS OF FACT

The Board accepts the findings of fact in paragraphs 1-8 in the Recommended Order and adopts them as its own.

CONCLUSIONS OF LAW

The Board accepts the Conclusions of Law in paragraphs 9-12 in the Recommended Order and adopts them as its own.

BOARD EXCEPTIONS TO THE FINDINGS OF MITIGATION

The Board rejects the Hearing Officer's finding of fact/conclusion of law paragraph 13, in that there was no competent substantial evidence in the record to support the mitigation suggested by the Hearing Officer:

1. Exhibit E, page 10, the licensure information shows Ms. Jones was originally licensed December 21, 1992.

   
   

2. Exhibit G shows that Ms. Jones was placed on felony probation April 2, 1993, for three years.

   
   

3. The transcript testimony ended at page 27, and there was no evidence or testimony that Ms. Jones was "working to make a new life," other than being divorced and on probation.

Instead the Board finds that there is competent, substantial evidence in the record that Ms. Jones was licensed for four months when she entered a plea to cultivation of marijuana. She was placed on three years probation and remained compliant through November, 1993, in that drug screens were negative. No counseling reports, evaluations, or documents evidencing termination of probation appear in the record.

The Hearing officer acknowledged her requirement to follow the Board's rules in reaching a disposition at page 29 of the transcript.

The Board's disciplinary guidelines include Rule 59S-8.006(1)(d):

Suspension until evaluation by and treatment in the Intervention Project for Nurses. In cases involving substance abuse, chemical dependency, physical or mental conditions which may hinder the ability to practice safely, the Board finds participation in the IPN under a stayed suspension to be preferred and most successful punishment.

Rule 595-8.006(3)f states:

-Conviction of felony under Emergency suspension

Chapter 893, controlled by department. There-

substances after, Board action in (455.245, 464.018(1)(i), F.S.) accordance with these

guidelines including drug treatment or IPN participation and fine from $250 -$1000.

Rule 595-8.006(3)(j) states:

Unlawful possession of controlled From $250 -$1000 fine substances and probation with con-

(464.018(1)(i), F.S.) ditions or IPN participation to five year suspension followed by probation with conditions

Based on the findings of fact, Ms. Jones not only had unlawful possession of controlled substances but also entered a plea to felony possession of a Chapter 893 controlled substance. There was no evidence that Ms. Jones ever had an emergency suspension. Section 455.245, Florida Statutes, (1993), mandated:

The department shall issue an emergency order suspending the license of any person licensed under chapter 458, Chapter 459, Chapter 460,

Chapter 461, Chapter 462, Chapter 463, Chapter

464, Chapter 465, Chapter 466, Chapter 474, or Chapter 484 who pleads guilty to, is convicted or found guilty of, or who enters a plea of nolo contendere to, regardless of adjudication, a felony under Chapter 409 or Chapter 893. . .

Mitigation, if any were even warranted, occurred by virtue of no emergency suspension order being in place from April, 1993, to the present.

DISPOSITION

Based on the Findings of Fact and Conclusions of Law, the Board finds Ms.

Jones to be guilty of violating Section 464.018(1)(i), Florida Statutes.

Pursuant to Section 120.57(1)(b)10, Florida Statutes, the disciplinary guidelines cited above, the Board's Exception to Paragraph 13 of the Recommended Order, and Section 464.018(2), Florida Statutes, the Board orders the following:

The license of Annelle Jones is suspended; however, the suspension will be lifted upon her evaluation by the Intervention Project for Nurses for substance abuse. It is the duty of the licensee to contact the IPN at P.O. Box 47530, Jacksonville, Florida 32247-7530, (904) 348-2720. If the licensee is in need of treatment, her license will be suspended but such suspension shall be stayed as long as participates in the IPN. The licensee must comply with all conditions of the IPN Advocacy Contract or she will be in violation of the Board Order. The Board delegates the authority to suspend to the Director of the IPN and the Chairman of the Board. Reinstatement will require payment of any fines previously imposed by the Board and that she appear before the Board to demonstrate her present ability to engage in the safe practice of nursing, which shall include a demonstration of two years continuous sobriety. If the licensee is not in need of treatment, no further action will be required with the IPN.

Ms. Jones must pay a $1000 administrative fine prior to release from the Intervention Project for Nurses. If no treatment is warranted, the licensee must pay an administrative fine of $1000 within six months. Failure to pay the fine in a timely manner will require the licensee to show cause at the next

Board meeting why the license should not be suspended. The licensee has the responsibility to document financial hardships prior to the due date of the fine payment.

Pursuant to Section 120.68, 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 a filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this Final Order is filed.

This Final Order shall become effective upon filing with the Clerk of the Agency.

DONE and ORDERED this 30 day of March, 1995.

BOARD OF NURSING

Betty A. Taylor, RN, MSN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to Annelle Jones, 520 33rd Street, NW, Winter Haven, Florida 3380-1809 and by interoffice mail to Joseph Garwood, Esquire, Agency for Health care Administration, 1940 N. Monroe Street, Tallahassee, Florida 32399-0773 and Mary Clark, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, this 12th day of April, 1995.

Brandon L. Moore

Docket for Case No: 94-000391

Orders for Case No: 94-000391