STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3133

)

DAVID ELWOOD KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice, a formal hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on January 25, 1984, in Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed on February 14, 1984. Counsel for the parties have offered proposed Recommended Orders and these matters have been reviewed. To the extent that the proposed Recommended Orders are consistent with this Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected as being contrary to facts found, contrary to conclusions of law reached or the recommended disposition.

APPEARANCES

For Petitioner: Julia P. Forrester, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jeffery B. Morris, Esquire

437 East Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues presented were those advanced by an Administrative Complaint brought against the Respondent by the State of Florida, Department of Professional Regulation, in which Respondent is alleged to have violated Section 464.018(1)(j), Florida Statutes, by willfully or repeatedly violating a lawful order of the Board of Nursing previously entered in a disciplinary proceeding.

In particular, it is alleged that Respondent violated the terms and conditions of an order of probation entered by the Board of Nursing on November 22, 1983, pertaining to the failure to seek counseling with a psychiatrist, psychologist or other recognized drug alcohol rehabilitation program specialist and to furnish reports to the Board of Nursing. It is further alleged that Respondent failed to submit to a random urine test which was designed to determine if he

had consumed, injected or otherwise self-medicated himself with any unprescribed controlled substance.

FINDINGS OF FACT

1. Disciplinary action had been taken against the Respondent by the Board of Nursing stemming from his abuse of the controlled substances percodan and tylenol. The license number in question was license No. 34401-1. On October 15, 1982, Respondent appeared before the Board of Nursing to seek reinstatement of this license. At that time, the Board decided to reinstate the license conditioned upon the service of a probationary term, including special conditions of probation. Among the special conditions of probation was a requirement that "the licensee shall obtain/continue counseling with a psychiatrist, psychologist, or other recognized drug/alcohol rehabilitation program, and shall cause progress reports to be furnished to the Board or probation supervisor every three (3) months during treatment as scheduled by the probation supervisor." The nature of the dialogue at the October 15, 1982, meeting was such that the Respondent was misled into believing that the above- referenced condition of probation would not be required.

   
   

2. The Final Order related to the Respondent's reinstatement was issued on November 22, 1982, and it set forth the probation condition related to counseling. It also included a condition to the effect that the Respondent agreed to submit to random blood and/or urine tests to detect the presence of unprescribed controlled substances. Respondent had not been receiving counseling for a drug problem at the time of the October 15, 1982, meeting to consider his reinstatement or at the point in time of receipt of the Final Order relating to the subject of his reinstatement and service of a two-year probationary term. Having reviewed the terms related to attendance of such a program or continuation of the program and the necessity for reports as found in the November 22, 1982 Order, and believing that the remarks made in the course of the October 15, 1982 meeting to consider reinstatement had excluded the necessity to attend such sessions if he was not already in attendance in a rehabilitation program, he contacted Geraldine Johnson, an investigator with the Department of Professional Regulation, to inquire about what he perceived to be a discrepancy between the decision at the meeting in October and the Order entered in November. Ms. Johnson referred Respondent to Helen Keefe, Executive Director of the Board of Nursing, who told King that the Order's terms could not be changed. Additionally, she indicated that a Probation officer would get in contact with King about compliance with the terms and conditions of the Probation Order.

   
   

3. John Coats was assigned as the Probation Officer for the Respondent. He first met with the Respondent as Probation Officer on March 10, 1983. At that time, King continued to express concern that the Probation Order and the decision of the Board at the October meeting were "at odds" as to the requirement of counseling. Coats indicated that he felt that the terms of the Probation Order related to counseling were required of King. He nonetheless indicated to King that he would "check into it." On the same date that the initial contact was made, King was requested to give a urine specimen to allow detection of any controlled substance that might be present. This request was

   made at King's place of employment and in response to King's concern that he not be required to give the sample at the place of employment in order to avoid embarrassment, King was not required to give a random sample at that time. At that point, Respondent was employed at an institution known as Pine Castle which assists mentally retarded adults. At the time of hearing, King was a vocational coordinator for Pine Castle's clients.

4. A further meeting was held between Coats and the Respondent on March 30, 1983, at which time Coats indicated that it was necessary for counseling reports to be provided by the Respondent. King continued to insist that he did not need to attend counseling due to remarks at the Board meeting by Board member, Choulat. Choulat later told Coats that she had not made remarks to that effect.

   
   

5. On April 6, 1983, King wrote to the Board of Nursing to ascertain if he indeed had to attend counseling and file reports. This inquiry was responded to by Ms. Keefe on May 3, 1983. In her letter of response, she made reference to the conditions in the Probation Order related to the obtaining or continuing counseling and the necessity for reports and alluded to the fact that in her mind, the first report was due on March 1, 1983, and a second report would be due on June 1, 1983. Further, she indicated that those reports would continue to be due until Respondent was discharged from counseling or a report was received from a counselor indicating that King would no longer need therapy.

   
   

6. On May 11, 1983, based upon investigation by Coats, it was determined to pursue charges against Respondent for failing to offer the March 1, 1983, report related to counseling. A report was made by a Dr. Mullen of the Mental Health Clinic of Jacksonville, Inc., on June 22, 1983. This report was addressed to Ms. Keefe. Ms. Keefe was undecided whether this report indicated that the Respondent was released or should be released from any necessity to attend counseling. She did not pursue this matter by presenting it to the Board for their opinion, in view of the fact that the charges of May 11, 1983, had been instituted. From the point of view of Ms. Keefe as spokesperson for the Board of Nursing, it was not necessary to answer this question nor for Respondent to have to continue to offer quarterly reports beyond March 1, 1983, pending the outcome of charges related to the failure to file a report of March 1, 1983.

   
   

7. During the course of the exchanges related to the necessity to receive counseling and provide counseling reports on a quarterly basis, Coats continued to seek random urine samples from the Respondent to detect the presence of controlled substances. One of those samples was obtained on April 28, 1983, following contact with the Respondent, allowing him a couple of hours before making the appearance to give that sample. The results of that sample were negative. A similar contact was made with the Respondent on June 29, 1983. The Respondent was telephoned by Coats around two or three o'clock in the afternoon and an arrangement made for Respondent to come by Coats' office around 5:00 p.m. to offer the urine sample. King made his appearance but did not give the sample, indicating that he was unable to void. He requested to be allowed to return the following morning to offer the urine specimen. This arrangement was not pursued by Coats. No further explanation was given to Coats about the inability of Respondent to provide the urine sample and at hearing, Respondent repeated his statement that he was simply unable to perform that task on June 29, 1983. This failure to provide a sample led to a second set of charges dating from July 28, 1983. This charge and the March 1, 1983, failure to file a counseling report formed the basis of the Administrative Complaint of September 6, 1983, filed by the State of Florida, Department of Professional Regulation against Respondent. Respondent requested a formal Section 120.57(1), Florida Statutes, hearing which was held on January 25, 1984.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

9. A motion was made to dismiss the amended Administrative Complaint and a reply made to that motion. The motion was argued in the course of the final hearing and denied.

   
   

10. By the amended Administrative Complaint, Respondent is accused of violating Section 464.018(1)(j), Florida Statutes, by willfully or repeatedly violating the November 22, 1982 Order of reinstatement on the topics of (1) "the licensee agrees to submit to random blood and/or urine tests, and shall not consume, inject or otherwise self-medicate with any unprescribed controlled substances," and (2) the licensee shall obtain/continue counseling with a psychiatrist, psychologist, or other recognized drug/alcohol rehabilitation program, and shall cause progress reports to be furnished to the Board or probation supervisor every three months during treatment as scheduled by the probation supervisor.

    
    

11. When the Respondent failed to comply with the requirement to give a random urine sample to detect possible controlled substances as requested on June 29, 1983, a prima facie showing was made of a willful violation of the Order of Probation. Respondent's defense to the effect that he simply could not accomplish that task does not satisfactorily address that prima facie showing. Therefore, Respondent is found to have violated the lawful Order of the Board of Nursing pertaining to giving of the urine sample to detect the presence of a controlled substance and is subject to the disciplinary provisions of Section 464.018(2), Florida Statutes.

    
    

12. Respondent has not violated the Order of the Board of Nursing related to attendance of counseling and associated reporting. He misunderstood the terms of his probation related to counseling based upon remarks made in the course of the October 15, 1992, meeting to consider reinstatement. Beyond that point, he made diligent inquiry to reconcile what was an inconsistency between the actions of the Board at the October 15, 1982, meeting and an Order of November 22, 1982, signed by the Chairman of the Board of Nursing. Under the circumstances, he could have been expected to comply with the requirement of counseling and provision of reports after receipt of the May 3, 1983, statement of position by the Executive Director; however, those reports were not mandated by the Board of Nursing in view of the remarks of Ms. Keefe, as Executive Director, stating that given the fact of an Administrative Complaint on a charge related to noncompliance through a report which the Board felt was due on March 1, 1983, no further reports would be necessary pending decision on the Administrative Complaint related to failure to report by March 1, 1983. In summary, a charge of failure to comply with the condition of probation related to the failure to comply with the condition probation related to the failure to provide the March 1, 1983, counseling report has not been sustained.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED:

That a Final Order be entered which finds the Respondent guilty of violating the Probation Order of the Board of Nursing by failing to submit to a

urine test on June 29, 1983, and dismisses the charge of failure to submit a quarterly counseling report for March 1, 1983. By way of penalty, the Final Order should impose a suspension of six months, with the last four months of that terms being set aside if, within the initial two months, Respondent seeks a psychological evaluation from a qualified psychiatrist, psychologist or other qualified mental health care counselor who, by report to the Board, addresses the Respondent's capability of continuing in the nursing profession without posing a threat to the safety of patients based upon abuse of drugs or related matters and the need to continue counseling and conditioned upon Respondent's submitting to random blood or urine samples to detect unprescribed controlled substances during the six months suspension period. The final order should also state that Respondent's failure to provide the counseling report and continue needed counseling or to submit to detection of unprescribed controlled substances through blood or urine sample shall promote the imposition of the remaining four months of the suspension term.

DONE AND ENTERED this 20th day of March 1984 in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 1984.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jeffery B. Morris, Esquire

437 East Monroe Street Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-003133

Orders for Case No: 83-003133