STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, ) CASE NO. 86-1172

)

vs. )

)

DANIEL E. GALLAGHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on July 30, 1986, in Jacksonville, Florida. The transcript was filed on August 15, 1986, and the Petitioner waived the right to submit proposed findings and conclusions.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: None

By Administrative Complaint dated December 24, 1985, the Respondent was charged with violating Sections 464.018(1)(f) and (h), Florida Statutes, because of unprofessional conduct which departs from the minimal standards of acceptable and prevailing nursing practice, and by being unable to practice nursing with reasonable skill and safety to patients by reason of the use of alcohol.

Although properly noticed of the time and place of the final hearing, the Respondent did not attend, nor was any appearance entered in his behalf. The Petitioner presented four witnesses, and three exhibits were received in evidence.

FINDINGS OF FACT

1. The Respondent, Daniel E. Gallagher, is a licensed practical nurse, holding license number 41727-1 issued by the Department of Professional Regulation on June 1, 1985.

   
   

2. From May 28, 1985, to August 29, 1985, the Respondent was employed at Care Unit of Jacksonville Beach, Florida, as a licensed practical nurse.

   
   

3. During this employment, the Respondent appeared for work frequently with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition. He frequently used mouth wash and mints. The odor of alcohol was

   smelled by other employees and by patients. This behavior started shortly after the Respondent began working at Care Unit, and it became progressively more evident until August, 1985, when the Respondent was terminated from his employment.

   
   

4. Coming to work as a licensed practical nurse in the condition described above is unprofessional conduct which departs from the minimal standards of acceptable and prevailing nursing practice.

   
   

5. A licensed practical nurse who assumes the duties of his employment under the effects of the use of alcohol, with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition, is unable to practice nursing with reasonable skill and safety to patients.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statute. The Department of Professional Regulation and the Board of Nursing are the State agencies responsible for regulating the practice of nursing, pursuant to Section 20.30, Chapter 455, and Chapter 464, Florida Statutes.

   
   

7. Section 464.018(1)(f), Florida Statutes, authorizes, disciplinary action against a licensed nurse for unprofessional conduct which departs from the minimal standards of prevailing and acceptable nursing practice. Section 464.018(1)(h), Florida Statutes, authorizes disciplinary action when a licensed nurse is found to be unable to practice nursing with reasonable skill and safety to patients by reason of the use of alcohol. Section 464.018(2), Florida Statutes, authorizes the imposition of penalties for violations which are established, ranging from license revocation to placement of the nurse on probation.

   
   

8. The findings of fact detailed above establish that the Respondent is guilty of violating Sections 464.018(1)(f) and (h), Florida Statutes, as charged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 41727-1, held by the Respondent, Daniel E.

Gallagher, be suspended for 30 days; and that following this period of

suspension the Respondent be placed on probation for one year, subject to such conditions as the Board may specify.

THIS RECOMMENDED ORDER entered this 11th day of September, 1986 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 11th day of September, 1986.

COPIES FURNISHED:

William M. Furlow, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Mr. Daniel E. Gallagher

379 East 5th Street

Mount Vernon, N.Y. 10550

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Judie Ritter Executive Director

Department of Professional Regulation

111 East Coastline Drive Room 504

Jacksonville, Florida 32201

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0061755

DOAH CASE NO. 86-1172

DANIEL GALLAGHER,

Respondent.

/

ORDER

Respondent, Daniel E. Gallagher, holds Florida License No. 41727-1 as a licensed practical nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to s. 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

The Board of Nursing met on October 23, 1986, in Orlando, Florida, to take final agency action. The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board accepts and adopts the findings of fact contained in the Recommended Order.

CONCLUSIONS OF LAW

The Board accepts and adopts the conclusions of law contained in the Recommended Order.

PENALTY

The Board generally concurs with the recommended penalty of the hearing officer, but believes the 30 day suspension is not sufficient and does not adequately protect the public. The record indicates that Respondent has not participated in this action beyond his denial of the alleged facts. He did not appear at formal hearing or at the consideration of this case by the Board.

Consequently, he cannot be adequately aware of the gravity of the violations committed by him; nor can he be adequately aware of any probationary terms which the Board might impose, and would likely practice in violation of those terms.

Moreover, the record is devoid of any evidence of efforts at rehabilitation

taken by the Respondent; therefore the Board feels that a 30 day suspension followed by probation would not protect the public or guarantee that Respondent would receive the necessary counseling or treatment. It is therefore

ORDERED that the license of Daniel E. Gallagher is hereby SUSPENDED for thirty (30) days and thereafter until he appears before the Board and can demonstrate the present ability to safely engage in the practice of nursing. Such demonstration shall include, at a minimum, an in-depth psychological evaluation from a psychiatrist, psychologist, or other recognized substance abuse counselor, which includes an opinion that the licensee is presently capable of returning to the safe practice of nursing.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.

This Order shall become effective upon filing with the clerk of the Department of professional Regulation.

DONE and ORDERED this 14th day of November, 1986.

Jessie Trice, Chairman Florida Board of Nursing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to DANIEL E. GALLAGHER, 379 East 5th Street, Mount Vernon, New York 10550, by United States Mail, at or before 5:00 p.m., this 14th day of November, 1986.

Judie Ritter Executive Director

Docket for Case No: 86-001172

Orders for Case No: 86-001172