STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1295

)

JAMES E. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 5, 1979. The Division of Administrative Hearings received the transcript of proceedings on October 2, 1979.

Respondent did not appear at the hearing. On September 19, 1979, the Division of Administrative Hearings received a letter from respondent dated September 13, 1979, reciting that respondent had no notice of the September 5, 1979, hearing, but stating that it was respondent's wish to "enter a plea of no- contest and place [him]self at the mercy of The Board."

In the same letter, respondent referred to "a statement from Thee Door drug abuse center as to [his] successful completion of their detoxification program. This statement, in the form of a letter dated September 10, 1979, from Mr. Muse and Dr. Pollack, has been read and considered by the Hearing Officer.

Petitioner was represented by counsel at the hearing:

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

Jacksonville, Florida 32202 For Respondent: No appearance

By administrative complaint dated May 29, 1979, petitioner alleged that respondent "[o]n or about March 27, 1979, . . . uttered a forged prescription .

. . in an attempt to acquire a controlled substance, to-wit: Demerol (eperidine) . . . [and, the following day] admitted . . . that he had forged the name and DEA number of Dr. A. N. Feir, to a prescription for Demerol 50 mg. tablets . . . in violation of Florida Statutes Section 464.21(1)(g) . . ." At the hearing, petitioner's motion ore tenus for leave to amend the administrative complaint was granted; the clause "and in fact did so acquire it" [the Demerol] was added to the first paragraph of the administrative complaint and the clause "and also in violation of Florida Statutes Section 464.21(1)(d) possession of a controlled substance for other than lawful purposes" was added to the third paragraph of the administrative complaint.

FINDINGS OF FACT

1. On March 27, 1979, at 3:30 or 4:00 o'clock in the afternoon, respondent entered Ashton Pharmacy in Kissimmee, Florida, and asked Keith W. Lawhorne, the pharmacist on duty, to fill a prescription for 40 tablets of Demerol 50 mg. The prescription was on a Community Hospital form, purportedly signed by A. N. Feir,

   M.D. Mr. Lawhorne filled the prescription and respondent left with the pills. Later, Mr. Lawhorne telephoned Dr. Feir who said he had not prescribed anything for respondent.

   
   

2. Mr. Lawhorne then telephoned Geraldine Francis, Director of Nursing Services at the Community Hospital in Kissimmee, where respondent was employed as a licensed practical nurse. Ms. Francis arranged a meeting the following day, March 28, 1979, with Mr. Lawhorne, respondent and herself. At this meeting, respondent admitted forging Dr. Feir's signature on the prescription form with which he had obtained Demerol the day before. He made the same admission to Mary L. Willis, a nursing practice consultant in petitioner's employ, on April 2, 1979. On April 4, 1979, respondent signed a written confession to the same effect, after talking to Lt. Charles Lee Cecil of the Kissimmee Police Department.

   
   

3. In his written statement respondent said, "I realize that I have a drug problem and am seeking help for it, and will never make a mistake like this again." Petitioner's exhibit No. 2. He also stated that the forgery occurred "while under the influence of a Class II Narcotic (Percocet-5) . . ." Petitioner's exhibit No. 2. Demerol, a trade name for meperidine, is also a class II controlled substance. On April 3, 1979, respondent "began voluntary participation in Thee Door's (out-patient) drug abuse program . . . [and, by April 16, 1979] had successfully withdrawn . . ." Letter of Muse/Pollack dated September 10, 1979.

   
   

   CONCLUSIONS OF LAW

   
   

4. Demerol is a controlled substance within the meaning of Chapter 893, Florida Statutes (1977). Respondent's acquisition of Demerol by forgery and his subsequent possession of Demerol were willful violations of Section 893.13, Florida Statutes (1977).

   
   

5. Petitioner is authorized to take disciplinary action against a licensed nurse for "[e]ngaging in the possession of controlled substances . . . for any other than legitimate purposes . . . [or for] [w]illfully or repeatedly violating any of the . . . laws of this state." Section 464.21(1)(d) and (g), Florida Statutes (1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for six (6) months.

DONE and ENTERED this 23rd day of October, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

Jacksonville, Florida 32202

Mr. James E. Davis 6331 Spanish Oak Drive

Orlando, Florida 32309

Docket for Case No: 79-001295

Orders for Case No: 79-001295