STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1815

)

ALICE M. THOMAS LOFTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on November 5, 1986, in Tampa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: William M. Furlow, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Alice M. Thomas Lofton

2703 Spruce Street

Tampa, Florida 38687 BACKGROUND AND PROCEDURAL MATTERS

The Administrative Complaint was filed on April 14, 1986, alleging violations of Chapter 464, F.S., the "Nurse Practice Act." Ms. Lofton responded with a request for a formal hearing and this proceeding resulted.

At the final hearing, Petitioner presented the testimony of six witnesses and submitted two exhibits (including Ms. Lofton's responses to a request for admissions), which exhibits were admitted without objection.

Ms. Lofton testified in her own behalf and presented no other witnesses nor exhibits.

Petitioner submitted a proposed recommended order for consideration. The proposed findings of fact have been adopted in their entirety herein.

ISSUE

The issue for determination is whether the nursing license of Alice M. Thomas Lofton should be disciplined for violations of Section 464.018(1)(f) and (h), F.S., by reporting to duty under the influence of alcohol.

FINDINGS OF FACT

1. Alice M. Thomas Lofton is now, and was at all times relevant in this proceeding, licensed as a registered nurse in Florida under license number 59769-2.

   
   

2. In September 1985, Ms. Lofton was employed as a staff nurse at Tampa General Hospital. On September 15, 1985, she reported for duty smelling of alcohol and unsteady on her feet. Her speech was slow, deliberate and slurred and she was observed to have difficulty in taking a patient's blood pressure. She appeared to be intoxicated.

   
   

3. When confronted by her supervisor, Ms. Lofton voluntarily submitted to a blood and urine test. The blood-alcohol test was returned with the result of

   .14 percent (.141 gm/dl).

   
   

4. Ms. Lofton was sent home. She was subsequently given an opportunity to keep her job if she would participate in and follow the recommendations of the employee assistance program at Tampa General Hospital. She agreed to participate but did not comply with the counselor's recommendations, so she was terminated.

   
   

5. It is both unprofessional and unsafe for a nurse to practice while under the influence of alcohol.

   
   

6. Alice Lofton was a longtime employee of Tampa General Hospital. She had been an assistant head nurse for four and a half years.

   
   

7. She admitted that at one time she thought she had a drinking problem and was once admitted to the emergency room under the influence of alcohol.

   
   

8. No evidence was presented of other disciplinary actions regarding Ms. Lofton's license or regarding her employment as a registered nurse. No evidence was presented that a patient was harmed or that Ms. Lofton, except for her intoxicated appearance at work, ever failed to conform to minimal standards of acceptable prevailing nursing practice.

   
   

9. Ms. Lofton claimed that the incident was the result of a conspiracy against her because she had asked for a transfer when her supervisors really needed her and wanted her to stay. The claim was inherently contradictory and was unsubstantiated.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Sections 120.57(1), F.S., and 455.225(4), F.S.

    
    

11. Ms. Lofton is charged with violations of the following pertinent parts of Subsections 464.018(1)(f) and (h), F.S.:

    
    

    464.018 (1) The following acts shall be grounds for disciplinary action as set forth in this Section.

    
    

    (f) Unprofessional conduct, which shall

    include, but not be limited to, any departure from or the failure to conform to, the minimal standard of acceptable and prevail- ing nursing practice, in which case actual injury need be established.

    
    

    (h) Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol . . . .

    
    

12. Under the State Uniform Traffic Control Law, Chapter 316, F.S., a blood-alcohol level of .10 percent or more is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal facilities were impaired. Subsection 316.1934(2)(c), F.S. This provision applies only to civil or criminal proceedings relating to driving a vehicle under the influence of alcohol or controlled substances. However, it is reasonable to apply the standard as a guide in determining the level of impairment in other circumstances such as this.

    
    

13. The results of the blood alcohol test and eyewitness testimony establish conclusively that Ms. Lofton was on duty under the influence of alcohol on September 15, 1985. She is, therefore, guilty of the alleged violations.

    
    

14. Counsel for Petitioner in his proposed recommended order suggests a 30-day suspension, with conditions, and a $500.00 fine as appropriate discipline.

    
    

15. Since the violation here was not proven as intentional and is an isolated event in a long nursing career, the fine is excessive. However, the probation with conditions appears appropriate in view of the potential danger to the public.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED that a final order be entered finding Alice M. Thomas Lofton guilty of a violation of Subsections 464.018(1)(f) and (h), F.S., and suspending her license for a period of 30 days and thereafter until she can demonstrate her ability to practice nursing safely. The demonstration should include a physical or psychological examination to determine whether she has an alcoholism problem requiring treatment, and, if so, continued probation is recommended to insure that such treatment is obtained.

DONE and RECOMMENDED this 17th day of December 1986, in Tallahassee, Florida.

MARY CLARK

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 17th day of December 1986.

COPIES FURNISHED:

William M. Furlow, Esquire Senior Attorney

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Alice T. Lofton 2703 Spruce Street

Tampa, Florida 38687

Judie Ritter Executive Director Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001815

Orders for Case No: 86-001815