STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-1898

)

JULIANNA L. NOLAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on February 25, 1998.

APPEARANCES

For Petitioner: Craig A. McCarthy

General Counsel's Office Medical Quality Assurance Allied Health

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Cathy L. Lucrezi

Cathy L. Lucrezi, P.A. 2256 Heitman Street

Fort Myers, Florida 33901 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to conform to the minimal standards of acceptable and prevailing nursing practice by testing positive for cannabinoids in a pre-employment drug screen, in violation of Section

464.018(1)(h), Florida Statutes, and, if so, what penalty Respondent should receive.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 5, 1996, Petitioner alleged that Respondent failed a urine test due to presence of cannabinoids, thus committing unprofessional conduct by testing positive for drugs on a pre-employment drug screen, in violation of Section 464.018(1)(h), Florida Statutes.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence 15 exhibits. Respondent called one witness and offered into evidence eight exhibits. All exhibits were admitted except Petitioner Exhibits 2, 3, 7, 10, and 11, of which all but Petitioner Exhibits 10 and 11 were proffered.

The court reporter filed the transcript on April 27, 1998. The parties filed their proposed recommended orders by May 15, 1998.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a practical nurse, holding license number PN 0892481. Respondent has practiced 18 years as a licensed practical nurse without prior discipline. Respondent's license is active, although she is not currently employed as a nurse due

   to what appears to be a serious case of diabetes, which has necessitated the amputation of part of one of her legs.

2. In August 1995, Respondent applied for a nursing job with The Pines of Sarasota. She was hired on August 24, 1995, and her first day of work was August 30, which was an orientation program that took place on a Wednesday.

3. Respondent was hired to work 16 hours a week, consisting of weekends only. Her first regular day of work was September 2, 1995, which was a Saturday. Respondent reported to work that day and worked her regular shift.

4. Respondent was dissatisfied with the working conditions. She complained that all of the other staff took off for a break and left her alone on the unit.

5. It is unclear if Respondent worked, or was supposed to work, on September 3. However, she was due to work on September 9, but she did not show or call in. On September 11, Respondent mailed a short letter of resignation.

6. The evidence is clear that The Pines required that Respondent take and pass a urine test for drugs. The evidence is vague and conflicting as to when Respondent took this test. Testifying by telephone due to a problem with the service of a witness subpoena, a technical director of the laboratory that conducted the urinalysis offered the only direct testimony on Petitioner's behalf concerning the urinalysis. Respondent

   offered the only direct testimony on her behalf concerning this matter.

7. Petitioner's witness testified that the urine sample was collected on Wednesday, August 30, and analyzed the next day. However, he was not the person who collected the sample; he supervised technicians who did the actual work. Respondent testified that she went to the laboratory and gave the urine sample on Wednesday, September 6.

8. Respondent's ability to cross examine Petitioner's witness from the laboratory was impeded by his presence by telephone, as was the strength of his testimony. He testified from some documents that counsel did not appear to have available to them. Petitioner was unable to authenticate and introduce into evidence various documents present at the hearing and purportedly involving the subject drug test.

9. There are some unresolved issues concerning the urine test. First, no one at the laboratory checked any photo identification of Respondent prior to taking the sample or gave her a copy of the laboratory documentation. These omissions raise the possibility of confusion in identification of the subject and the test results.

10. Second, the laboratory did not appear to report the results to Respondent or promptly to The Pines. The Pines and Respondent litigated an unemployment compensation case in November 1995, but no one mentioned the failed drug test. The

    Pines filed a complaint with Petitioner, which led to the investigation that led to this case, in January 1996. The apparent failure of the laboratory to notify promptly The Pines and Respondent of the positive results undermines the credibility of their handling of the sample and test results and effectively prevented Respondent from obtaining a retest of the sample or, if practical, a second test.

11. It is more likely than not that Respondent had consumed marijuana and thus failed the urine test. However, for the reasons already stated above, Petitioner has failed to prove these material facts by clear and convincing evidence.

    CONCLUSIONS OF LAW

    
    

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

13. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Clear and convincing evidence is of such weight as to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, of the truth of the material

    allegations. Slomowitz v. Walker, 429 So. 2d 727, 800 (Fla. 4th DCA 1983).

15. Section 464.018(1)(h) requires that nurses conform to the minimal standards of acceptable and prevailing nursing practice.

16. For the reasons previously stated, Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of violating Section 464.018(1)(h) by consuming marijuana.

17. Respondent's request for attorney's fees and costs is denied.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing the administrative complaint.

DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998.

COPIES FURNISHED:

Craig A. McCarthy General Counsel's Office

Medical Quality Assurance Allied Health

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Cathy L. Lucrezi

Cathy L. Lucrezi, P.A. 2256 Heitman Street

Fort Myers, Florida 33901

Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Marilyn Bloss, Executive Director Board of Nursing

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001898

Orders for Case No: 97-001898