STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 99-4372

)

JANE M. SHELDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in New Port Richey, Florida, on March 13, 2000.

APPEARANCES

For Petitioner: Diane K. Keisling, Contract Attorney

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Room 3231A Tallahassee, Florida 32308

For Respondent: Leslie M. Conklin

Conklin & Stanley, P.A. Suite 202

1465 South Fort Harrison Avenue Clearwater, Florida 33756

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of testing positive for a controlled substance on a pre-employment drug screen without a prescription or valid medical reason for using

the substance, in violation of Rule 64B9-8.005(1)(e)18, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 24, 1999, Petitioner alleged that Respondent is a licensed registered nurse. The Administrative Complaint alleges that she submitted to a pre-employment drug screen and tested positive for cocaine without a prescription or valid medical reason for using cocaine. In its proposed recommended order, Petitioner requests a reprimand, $500 administrative fine, and probation.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence Petitioner Exhibits 1-9. Respondent called no witnesses and offered into evidence Respondent Exhibit 1. All exhibits were admitted except Respondent Exhibit 9.

The court reporter filed the Transcript on March 22, 2000.

FINDINGS OF FACT

1. Respondent is a licensed registered nurse, holding license number RN 1553452. She was originally licensed in Florida in 1984. Except for the complaint leading to this case, Petitioner has received no complaints against Respondent in her

   16 years of licensure. Respondent did not have a prescription for cocaine, nor a valid medical reason for the use of cocaine.

2. On April 19, 1999, the director of nursing and assistant director of nursing at the Whispering Pines Nursing Home interviewed Respondent for an opening as a registered nurse at the nursing home. Offering Respondent a job, subject to passing a urine screen, the assistant director of nursing administered the urine test.

3. The assistant director of nursing gave Respondent a collection cup and showed her to the bathroom. She told Respondent not to flush or wash her hands until she had returned the filled cup to the assistant director of nursing.

4. Because Respondent had appeared for her interview at about 5:00 P.M., the assistant director of nursing told her to use a different bathroom from that which was normally used for urine tests. However, this deviation from the norm did not introduce an element of risk of confusion of urine samples.

5. To the contrary, the use of the alternative bathroom, which, unlike the customary bathroom, had hot and undyed water, introduces an element of risk of manipulation by the urine donor. As for the risk of confusion of urine samples, the after-hours use of the alternative bathroom, if anything, reduced the risk of confusion of urine samples. Respondent was the only person from whom the assistant director of nursing ever collected urine after hours, and the likelihood of confusion of urine samples was limited by the fact that Respondent's sample was the only sample collected at the time.

6. When Respondent returned the filled cup, the assistant director of nursing immediately read the temperature of the sample and determined that, as required, it was over 90 degrees.

7. The assistant director of nursing directed Respondent to initial the seal to be placed on the container. After Respondent did so, the assistant director of nursing then applied the seal to the container. However, Respondent could not recall if she sealed the container before Respondent left the room.

8. This procedure deviated from the procedure adopted by the nursing home in two respects: the assistant director of nursing did not require Respondent to initial the seal after it was placed over the container and the assistant director of nursing could not affirmatively state that she sealed the container in the presence of Respondent.

9. It is unclear whether numerous other urine samples were in sufficient proximity to the assistant director of nursing so as to raise the possibility of confusion of urine samples. Likely, the director of nursing and assistant director of nursing had collected other samples that day. If so, their use of an overnight courier service would raise the possibility that any other samples remained in the area for pick-up.

10. There is a more serious discrepancy in the record. The laboratory technician produced a bar code that accompanied the sample that yielded the positive result of cocaine. Comparing this bar code to the materials in her file, the assistant

    director of nursing could find no bar code of a similar size. This significant discrepancy, which is unexplained in the record, militates in favor of confusion of urine samples.

11. Respondent has worked many years as a registered nurse and been subject to numerous announced and unannounced drug tests. The record reveals no indication of drug use in these tests. Respondent's employment record and unblemished disciplinary history militate in favor of confusion of urine samples.

12. Also, Respondent voluntarily submitted to the drug screen in this case. As a registered nurse, she would presumably have had a reasonable concern about a positive result, if she had ingested cocaine recently. Her voluntary submission to a drug test militates in favor of confusion of urine samples.

13. In isolation, neither the discrepancies in the urine testing and handling of the sample nor the background of Respondent would likely preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine. However, these facts, together, preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine.

    CONCLUSIONS OF LAW

    
    

14. 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. All references to Rules are to the Florida Administrative Code.)

15. Section 464.018(1)(h) authorizes the Board of Nursing to impose discipline for "[u]nprofessional 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."

16. Rule 64B9-8.005(1)(e)18 states that "unprofessional conduct" includes: "Testing positive for any drugs under Chapter 893 on any pre-employment or employer ordered drug screen when the nurse does not have a prescription and legitimate medical reason for using such drug."

17. 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).

18. The court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), defined "clear and convincing evidence" as follows:

    We . . . hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

19. For the reasons noted in the findings of fact, sufficient doubt exists concerning the test results as to preclude a finding that clear and convincing evidence demonstrates that Respondent is guilty of testing positive for cocaine.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 13th day of April, 2000, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000.

COPIES FURNISHED:

Diane K. Keisling, Contract Attorney Agency for Health Care Administration 2727 Mahan Drive

Building 3, Room 3231A Tallahassee, Florida 32308

Leslie M. Conklin Conklin & Stanley, P.A. Suite 202

1465 South Fort Harrison Avenue Clearwater, Florida 33756

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

William Large, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Ruth Stiehl, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

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: 99-004372

Orders for Case No: 99-004372