STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3219

)

PAULA KAY SPEARS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 12, 1989, in Lakeland, Florida.

APPEARANCES

For Petitioner: Michael A. Mon), Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

For Respondent: Paula Kay Spears, Pro Se

1240 Sarasota Avenue

Lakeland, Florida 33805 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a registered nurse, committed violations of Chapter 464, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against her license. The resolution of this issue restsupon a determination of whether Respondent engaged or attempted to engage in the sale, possession, or distribution of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes.

PRELIMINARY STATEMENT

On March 15, 1988, Petitioner issued an Administrative Complaint charging Respondent with possession, sale or distribution of a controlled substance as set forth in Chapter 893, Florida Statutes; a basis for imposition of licensure discipline pursuant to Section 464.018(1)(i), Florida Statutes (Supp. 1988).

The Administrative Complaint also alleged that Respondent's conduct constituted unprofessional conduct, a violation of Section 464.018(1)(h), Florida Statutes (Supp. 1988).

Further, the Administrative Complaint alleged that Respondent knowingly violated provisions of Chapter 464, Florida Statutes, a violation of Section 464.018(1)(l), Florida Statutes (Supp. 1988).

Respondent requested a formal administrative hearing on the charges set forth in the Administrative Complaint. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of three witnesses and three evidentiary exhibits. Respondent presented the testimony of one witness, herself.

The transcript of the hearing was filed with the DivisionOf Administrative Hearings on October 19, 1989. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Paula Kay Spears. She is a licensed registered nurse and holds license number 1435502. At all times pertinent to these proceedings, Respondent was employed as a registered nurse at Lakeland Regional Medical Center in Lakeland, Florida.

   
   

2. Caren Hicks worked as a unit coordinator in the cardiovascular surgery unit of the hospital where Respondent was also employed as a registered nurse.

   
   

3. Hicks and Respondent worked together for approximately five years. In April of 1988, Hicks witnessed Respondent using for the first time what Hicks believed to be a drug commonly called "crank". Hicks also used the substance on that occasion.

   
   

4. Hicks purchased the substance from Respondent on only one later occasion; although she and Respondent engaged in joint use of the substance on several subsequent occasions. They ingested the substance by "snorting" it through the nose.

   
   

5. Hicks provided crank on some occasions for the joint use of herself and Respondent. The two used the drug while on duty in the cardiovascular unit to which they were assigned. The last occasion of their joint usage of the drug was September 11, 1988.

   
   

6. When she nasally inhaled the drug, Hicks observedthat her pulse rate and energy level increased. While she experienced fatigue when the effects of the drug wore off, Hicks never experienced any sense of confusion. She compared the effects of the substance to that of a drug commonly called "speed".

   
   

7. Tommy Smith is the head nurse for the cardiovascular unit where Respondent and Hicks were employed in September of 1988. He confronted Respondent with the accusation that she and Hicks had used crank while on duty. Respondent denied the charge.

   
   

8. Smith offered Respondent continued employment in her position, provided she submit to drug screening and rehabilitative treatment for drug abuse. Respondent rejected the offer. Subsequently, Respondent's employment with the hospital was terminated.

9. Later, Smith made the same offer to Hicks. Hicks accepted the offer, attended a drug rehabilitation program and is still employed at the hospital.

   
   

10. Expert testimony of Martin Zfaz, M.D., establishes that crank is a form of methamphetamine, a central nervous system stimulant which is regulated in accordance with Chapter 893, Florida Statutes, as a controlled substance and a schedule II drug.

    
    

11. Crank, over a period of time, can cause confusion in the user's mental acuity. Depression follows use of the drug when its effects wear off. Usage can lead to dependence, with the possibility of resultant acute psychosis.

    Poor, impaired or confused judgement in the user can result. The substance is highly addictive, with limited medical use.

    
    

12. Medical uses for crank include treatment for narcolepsy and hyper- activity in children. The substance is also prescribed as a balance to phenobarbital medication of epileptic patients. Although it depresses appetite, its usage for this purpose has decreased.

    
    

13. Use of crank would have a negative effect on a medical nurse's judgement and performance.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner has the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. The administrative complaint charges Respondent with engaging or attempting to engage in the possession, sale or distribution of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes; a violation of Section 464.018(1)(i), Florida Statutes (Supp. 1988).

    
    

17. The evidence clearly and convincingly establishes Respondent's possession of a controlled substance for other than legitimate purposes. Respondent is guilty of a violation of Section 464.018(1)(i), Florida Statutes (Supp. 1988).

    
    

18. Such conduct by Respondent is also a departure from minimal standards of professional nursing practice and constitutes unprofessional conduct in violation of Section 464.018(1)(h),Florida Statutes (Supp. 1988).

    
    

19. Section 464.018(2), Florida Statutes (Supp. 1988), authorizes Petitioner to impose disciplinary action upon Respondent's license for her violations ranging from a reprimand to an administrative fine not to exceed

    $1,000 per offense and suspension or revocation of licensure.

    
    

20. Rule 210-10.011(2), Florida Administrative Code, sets forth the range of possible disciplinary actions which Petitioner shall take pursuant to the previously noted statutory authorization. The rule provides for the imposition of discipline ranging from a reprimand to suspension of licensure and a fine for the offense of unprofessional conduct. Penalties for unlawful possession of

controlled substances range from imposition of a $250 fine and probation to a five year suspension of licensure followed by probation.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent in violation of Section 464.018(1)(i) and Section 464.018(1)(h), Florida Statutes.

IT IS FURTHER RECOMMENDED that such Final Order suspend Respondent's license pending Respondent's completion of a drug dependency evaluation and provision by her of a report of that evaluation to the Board and demonstration to the Board that she is capable of safely practicing the profession of nursing.

IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probationary status for a period of three years upon satisfaction of the foregoing requirements for termination of license suspension with specific conditions of such probation to include periodic drug dependency reevaluations and reports as may be determined by the Board and payment of an administrative fine of $500.

DONE AND ENTERED this 3rd day of November, 1989, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings. 1.-2. Accepted.

3. Weight of the evidence demonstrates that Respondent ingested the drug

by "snorting" it. Finding rejected. 4.-14. Accepted

15. Rejected. Not consistent with the weight of the evidence. 16.-17. Rejected, unnecessary to result reached.

Respondent's Proposed Findings.

None submitted.

COPIES FURNISHED:

Michael A. Mon), Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Paula Kay Spears 1240 Sarasota Avenue

Lakeland, FL 33805

Kenneth Easley, Esq.

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Judie Ritter Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32201

Docket for Case No: 89-003219

Orders for Case No: 89-003219