STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4770

)

DELORES ECKARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Pensacola, Florida, on April 9, 1987.

The appearances were as follows:

APPEARANCES

For Petitioner: Gary D. Beatty, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-07509

For Respondent: No appearance

This cause concerns an Administrative Complaint filed against the Respondent alleging, in essence, that she violated the probationary condition placed upon her license by an earlier Final Order of the Petitioner by allegedly refusing to submit to a random blood and/or urine test to allegedly determine whether the Respondent used illicit drugs.

The cause came on for hearing as noticed, at which the Petitioner called two witnesses and introduced four exhibits. The Respondent failed to appear. The Petitioner ordered the transcript of the proceedings and requested the right to file Proposed Findings of Fact and Conclusions of Law, which were timely filed June 10, 1987. Those Proposed Findings of Fact and Conclusions are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Respondent's license as a registered nurse should be revoked, suspended or otherwise subjected to sanctions for alleged violation of Chapter 464, Florida Statutes, and, in particular, whether the Respondent has violated the terms of her probation by refusing to submit to a random urine test which testing was authorized by a Final Order entered previously by the Board of Nursing.

FINDINGS OF FACT

1. The Respondent is a licensed registered nurse in the State of Florida holding license number 1091372. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 464 related to the licensure standards for nursing in the State of Florida and the regulation and enforcement of standards of nursing practice.

   
   

2. Pursuant to a previous disciplinary proceeding against this Respondent, a Final Order was entered by the Petitioner whereby the Respondent's nursing license number 1091372, which is the subject of this proceeding, was placed on probationary status for a period of one year from August 19, 1985. As a condition of that probation, the Respondent was required to submit to random blood and/or urine tests.

   
   

3. Pursuant to the authority of this Order, Charles E. Wheelahan, an investigator with the Investigation Section of the Department of Professional Regulation, attempted to obtain a urine sample from the Respondent, pursuant to the previously entered Final Order, during the period June 13-27, 1986. Mr. Wheelahan first phoned the Respondent on June 13 to set up an appointment and told the Respondent the reason for the appointment. The Respondent appeared to be somewhat incoherent in her conversation by phone that day and so the investigator set up an appointment for another day. He went to her residence on June 25 and asked that she supply a urine sample. She informed him she was unable to do so at that time. He waited approximately one and one-half hours, during which time she made no attempt to furnish him with the requested sample. The following day he requested by phone that she meet him at "University Hospital" on the following day, which would be June 27, 1986. Later that day she called him and cancelled that appointment. He then offered to meet her at any other time on that day and got no cooperation from the Respondent. Thus, after giving the Respondent three opportunities to comply with the requirements of the Order by which her license was placed on probation, Mr. Wheelahan recommended and the Petitioner ultimately instituted the instant prosecution.

   
   

4. Witness Elaine Brantley testified and established that she had transcribed the telephone conversation Mr. Wheelahan had with the Respondent on June 27, 1986. That transcript was admitted as Petitioner's Exhibit C, being a transcript of the witness' shorthand notes regarding the telephone conversation.

   
   

5. This exhibit, as well as the testimony of Mr. Wheelahan, and the other uncontroverted evidence, establishes that the Respondent evaded and obstructed Mr. Wheelahan's attempts to obtain a urine sample as required by the Final Order which had imposed probation with that random sampling as a condition. Mr. Wheelahan advised the Respondent that her failure to cooperate in arranging to provide the sample would be reported as a refusal to comply with the terms of the probation and he so reported it. She continued her evasiveness and refusal to cooperate in arranging the provision of a urine sample to the Petitioner with this knowledge.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. The Respondent, as a licensed registered nurse in the State of Florida at times pertinent hereto, is subject to the Petitioner's jurisdiction established by Chapter 464, Florida Statutes, to regulate the terms of her licensure and the standards of her nursing practice.

   
   

8. The Respondent has violated Section 464.018(1)(j) Florida Statutes, by the willful violation of provisions of a lawful order of the Board of Nursing previously entered in a disciplinary proceeding, which Order is a final one.

   The Respondent's refusal to make a good faith effort to supply a urine sample to the Petitioner's investigator during repeated attempts to obtain that from June 13-27, 1986, constituted a willful failure to comply with the terms of her probation. Section 464.018(1)(j) provides that grounds for disciplinary action include:

   
   

   "Willfully or repeatedly violating any provision of this Chapter, a rule of the Board or the Department or a lawful order of the Board or Department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the Department."

9. It is provided at Subsection (2) of that Section: "When the Board finds any person guilty of

   any of the grounds set forth in Subsection (1), it may enter an Order imposing one or more of the following penalties:

   (b) Revocation or suspension of a license.

   (e) Placement of the nurse on probation for a period of time and subject to such conditions as the Board may specify, including requiring the nurse to submit

   to treatment, to attend continuing edu- cation courses, to take an examination, or to work under the supervision of another nurse."

   
   

10. Subsection (3) provides:

    
    

    "The Board shall not reinstate the license of a nurse, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that such person has complied with all the terms and conditions set forth in the Final Order and that such person is capable of safely engaging in the practice of nursing."

11. The uncontroverted evidence of record supportive of the above Findings of Fact establishes that the Respondent is guilty of violating the term of her probation at issue. There is no question that she repeatedly and willfully evaded her responsibility under the above-referenced Final Order, to provide urine or blood samples to the Board, which was a mandatory term of her probation. Her willful violation of the terms of the Final Order, which had, in effect, granted her lenient treatment by allowing her to continue active practice subject to this less-than-onerous probationary term, especially when repeated opportunities to comply with that probationary condition were accorded her, dictates that a substantial penalty be imposed.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of counsel, it is, therefore

RECOMMENDED that the Florida Board of Nursing enter a Final Order suspending the Respondent's license until such time as she appears before the Board and adequately demonstrates her ability to safely engage in the practice of nursing in the State of Florida.

DONE and ORDERED this 2nd day of July 1987, in Tallahassee, Florida.

P. MICHAEL RUFF 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 2nd day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4770

The Petitioner's Proposed Findings of Fact have all been accepted. The Respondent did not file Proposed Findings of Fact.

COPIES FURNISHED:

Gary D. Beatty, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Delores Eckard 775 Berkley Drive

Pensacola, Florida 32503

Judie Ritter, Executive Director Board of Nursing

Room 504

111 East Coastline Drive Jacksonville, Florida 32201

Van Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004770

Orders for Case No: 86-004770