STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 82-740

)

DOMINGO FORTUNATO GALVAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 28, 1982, in Key West, Florida.

Petitioner Department of Professional Regulation, Board of Nursing, was represented by William M. Furlow, Esquire, Tallahassee, Florida, and Respondent Domingo Fortunato Galvan was represented by W. Ted Ernst, Jr., Esquire, Key West, Florida.

Petitioner filed an Administrative Complaint against the Respondent seeking to suspend or revoke or take other disciplinary action against the Respondent as licensee and against his license as a registered nurse under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained in that Administrative Complaint and, if so, what disciplinary action should be taken against him, if any.

Petitioner's Exhibits numbered 1 through 3 were admitted in evidence.

Respondent's Exhibits numbered 1 through 4 were admitted in evidence.

Both Petitioner and Respondent submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

During the formal hearing, Petitioner moved to amend the Administrative Complaint by striking the allegation that Respondent is guilty of violating Section 464.018(1)(c), Florida Statutes (1979). Petitioner's motion to amend was granted. Accordingly, the only remaining statutory violation with which Respondent is charged is Section 464.018(1)(g), Florida Statutes (1979).

FINDINGS OF FACT

1. Respondent Domingo Fortunato Galvan is a registered nurse in the State of Florida having been issued license number 71608-2.

   
   

2. On or about February 28, 1981, Respondent was found guilty in the United States District Court for the Southern District of Florida of conspiracy to distribute and possess a controlled substance and of possession with intent to distribute a controlled substance. That conviction is still on appeal.

   
   

3. No evidence was presented by Petitioner with respect to the Respondent's ability to practice as a nurse. Rather, Respondent's evidence indicates that Respondent is a good nurse.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

5. Section 464.018(1), Florida Statutes (1979), sets forth the grounds for disciplinary action against a registered nurse and provides, in pertinent part, as follows:

   
   

   (g) Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in

   c. 893, for any other than legitimate purposes.

   
   

   Respondent was found guilty in the United States District Court for the Southern District of Florida of conspiracy to distribute and possess a controlled substance and of possession with intent to distribute a controlled substance.

   In order to find a defendant guilty in a criminal case, the burden is upon the prosecution to prove that the defendant is guilty beyond a reasonable doubt.

   Since Respondent has been found guilty in a criminal trial, Petitioner has met its burden of proving in this proceeding that Respondent is guilty of engaging or attempting to engage in the possession or distribution of a controlled substance for other than legitimate purposes, as charged in the Administrative Complaint herein.

   
   

6. In its proposed recommended order, Petitioner has recommended that Respondent's license number 71608-2 be suspended until the mandate is issued in the appeal of his criminal conviction. If the Respondent's conviction is reversed, his license should be reinstated automatically. If the Respondent's conviction is sustained, he should remain suspended until he appears before the Board of Nursing and demonstrates by clear and convincing evidence that he is then and there capable of practicing nursing in accordance with the laws of the State of Florida. If and when the Respondent's license is reinstated, the Board may, at its discretion, place the Respondent on probation with reasonable terms and conditions for a period of up to two years. The Department's recommendation is reasonable and appropriate under the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED that a final order be entered finding Respondent Domingo Fortunato Galvan guilty of violating Section 464.018(1),(g), Florida Statutes (1979), as charged in the Administrative Complaint and suspending Respondent's license number 71608-2 until the mandate is issued in the appeal of his criminal conviction. If the Respondent's conviction is reversed, his license should be reinstated automatically. If the Respondent's conviction is sustained, he should remain suspended until he appears before the Board of Nursing and demonstrates by clear and convincing evidence that he is then and there capable of practicing nursing in accordance with the laws of the State of Florida. If and when the Respondent's license is reinstated, the Board may, at its discretion, place the Respondent on probation with reasonable terms and conditions for a period of up to two years.

DONE and RECOMMENDED this 1st day of December, 1982, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1982.

COPIES FURNISHED:

Julia Forrester, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

W. Ted Ernst, Jr., Esquire

509 Whitehead Street

Key West, Florida 33040

Samuel R. Shorstein, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Helen P. Keefe, Executive Director Board of Nursing

111 Coastline Drive, East Suite 504

Jacksonville, Florida 32202

Docket for Case No: 82-000740

Orders for Case No: 82-000740