STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1624

)

MICHAELA FIVES, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, in Miami, Florida on December 6, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1007 Blackstone Building

Jacksonville, Florida 32202 For Respondent: None

ISSUE PRESENTED

Whether the Respondent's license as a Licensed Practical Nurse should be suspended or revoked for alleged violation of Sections 464.21(1)(b) and (d), F.S., as set forth in Administrative Complaint, dated August 3, 1978.

The Respondent did not appear at the hearing. Notice of Hearing was issued by the Hearing Officer under date of October 25, 1978, to the address provided by Petitioner, 7124 Bay Drive No. 1, Miami Beach, Florida 33141. This is the address reflected on the envelope which enclosed Respondent's request for hearing on the Administrative Complaint sent to Petitioner under postmark August 28, 1978. It being determined that adequate notice had been provided to Respondent, the hearing was conducted as a uncontested proceed, pursuant to Rule 28-5.25(5), Florida Administrative Code. (Exhibit 5)

FINDINGS OF FACT

1. Respondent Michaela Fives holds License No. 27554-1 as a Licensed Practical Nurse and was so licensed in November, 1977. (Testimony of Johnson)

   
   

2. On November 5, 1977, Detective Kenneth Valentine, Hialeah Police Department, was acting in an undercover capacity on an investigation of narcotics. Pursuant to his investigation, he met with Respondent at her apartment located at 5960 NW 38th Street, Apartment 210, Virginia Gardens, Miami, Florida. Lynn Sampson and Danny Cundiff were also present in Respondent's apartment at the time. Cundiff and Sampson wrote out a prescription of 60 300 mg. Quaalude tablets on a printed prescription form. The

   top of the form showed the name Lacy, Adler, M.D., P.A., followed by "Andrew P. Adler, M.D., Ray C. Lacy, M.D., 221 West Flagler Street, Miami, Florida 33130, Telephone: 887-9339." The prescription was handed to Valentine and Respondent gave him $15.50 to have it filled at the My Pharmacy, 1550 West 84th Street, Hialeah-Miami Lakes, Florida. By pre-arrangement with the pharmacist, Valentine had the prescription filled there and took the pills back to the apartment.

   Sampson divided them among Respondent, Cundiff and herself, and each of them ingested one tablet. Valentine purchased ten tablets from Sampson and Cundiff for $35.50. (Testimony of Valentine)

   
   

3. On November 9, 1977, Valentine again met with the three individuals at Respondent's apartment and was provided another prescription for the same amount of drugs. It reflected the patient's name as Robert Southern, and registration number 178855. It was purportedly signed by "S. Adler, M.D." Prior to this meeting, the Hialeah police had determined that Doctors Adler and Lacy were not listed in the telephone book nor were they located at the address shown on the prescription form. They also determined that the phone number shown on the prescription form was a pay telephone located in Hialeah, Florida. After the individuals at the apartment discussed the fact that the pharmacist would probably call the phone number listed on the prescription form to verify its authenticity, Valentine took the Prescription to the My Pharmacy and had it filled, using his own money for the purchase. At this time, another police officer present at the pharmacy called the phone number listed on the prescription form to ostensibly verify the prescription. Lieutenant Paul Gentesse of the Hialeah Police Department had previously placed himself in a position to observe the pay telephone. He saw the Respondent answer the telephone and then followed her back to her apartment. When Valentine returned with the filled prescription, he gave it to Cundiff who divided the tablets among Respondent, Sampson and Valentine Valentine paid $30.00 for ten tablets. Other police officers then arrived at the apartment and Respondent, Cundiff and Sampson were placed under arrest. (Testimony of Valentine, Gentesse, Exhibit 3)

   
   

4. The tablets taken from the possession of Respondent and the others were analyzed by a chemist in the Crime Laboratory of the Dade County Public Safety Department and were found to contain Methaqualone, a controlled substance under Chapter 893, Florida Statutes. Quaalude is a common tradename for Methaqualone. (Testimony of Lynn, Exhibit 2, supplemented by Exhibit 1)

   
   

5. On January 9, 1975, Petitioner had suspended the license of the Respondent for period of two years as a result of prostitution charges. The record of that proceeding contained the testimony of Respondent that she had been involved In the illegal use of controlled drugs and had been attending a drug rehabilitation program for the treatment of drug abuse as a result of court order. Respondent thereafter petitioned for reconsideration of the suspension and, on June 29, 1976, Petitioner stayed its order of suspension and placed Respondent on probation for the remainder of the period of suspension. (Testimony of Johnson, Exhibit 4)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner's Administrative Complaint alleges that Respondent is guilty of unprofessional conduct in violation of subsection 464.21(1)(b), Florida Statutes, and in violation of subsection 464.21(1)(d) for engaging in the possession, sale or distribution of controlled substances as set forth in Chapter 893 for other than legitimate purposes. The statutory provisions read pertinently as follows:

   464.21 Disciplinary proceedings.--

   (1) GROUNDS FOR DISCIPLINE.-- The board shall have the authority to . . . discipline the holder of a license . . . who has

   been found guilty by the board of:

   * * *

   (b) Unprofessional conduct, which shall include any departure from, or the failure to conform to, the minimal standards of acceptable nursing practice, in which proceeding actual injury need not be established.

   * * *

   (d) Engaging in the possession, sale, or distribution of controlled substances as set forth in Chapter 893, for any other than legitimate purposes.

   
   

7. In construing a statute governing the conduct of physicians that makes "unprofessional conduct" a ground for disciplinary action in language similar to that found Section 464.21(1)(b) pertaining to the nursing profession, the First District Court of Appeal held that the intent of the legislature was to proscribe poor medical practice as measured by the prevailing standards of good practitioners. It stated that unprofessional conduct is "conduct by a practicing physician in the practice of medicine which did not conform to the prevailing standards of practice exercised by other practitioners in the same area of practice or expertise." It therefore found that a physician receipt of rebates or kickbacks could not he considered to fall within the term "unprofessional conduct." Lester v. Department of Prof. and Occ. Regulation,

   348 So 2d 923 (Fla. 1st DCA 1977) Similarly here, although the evidence establishes that the Respondent engaged in the unlawful possession and sale of a controlled substance as set forth in Chapter 893, F.S., to wit: Methaqualone, no evidence was presented to establish that her actions arose out of or related to her practice of the nursing profession. Accordingly, it is concluded that Petitioner has failed to establish a ground for disciplinary action under subsection 464.21(1)(b).

   
   

8. As stated above, the evidence does show that Respondent engaged in the possession and sale of a Chapter 893 controlled substance in violation of subsection 893.13(1)(e) Florida Statutes, which makes it unlawful for any person to be in actual or constructive possession of a controlled substance unless lawfully obtained.

   
   

9. In view of the serious nature of drug possession by a nurse, it is considered that revocation of her license is fully warranted. No evidence was submitted in mitigation or extenuation of the offense, and consequently, a lesser penalty is not indicated.

RECOMMENDATION

That Respondent's license as a Licensed Practical Nurse be revoked for violation of Section 464.21(1)(d) , Florida Statutes.

DONE and ENTERED this 2nd day day of January, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1007 Blackstone Building

Jacksonville, Florida 32202

Geraldine Johnson, R.N. Investigation and Licensing

Coordinator

6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211

Michaela Fives, L.P.N. 7124 Bay Drive No. 1

Miami Beach, Florida 33141

Docket for Case No: 78-001624

Orders for Case No: 78-001624