STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4493

)

FRED LEON LONDON, III, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in Orlando, Florida, on February 18, 1998. The following appearances were entered:

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Dr. Xavier C. Pinellas

Qualified Representative

211 Broadway, Suite 115 Kissimmee, Florida 34741

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against the Respondent's license to practice nursing, based upon alleged violations of Sections 464.018(1)(h), 464.018(1)(I), 464.018(1)(j), and 455.227(1)(q), Florida Statutes, and if so, what discipline is proper.

PRELIMINARY STATEMENT

On August 14, 1997, Petitioner filed a three-count Administrative Complaint against Respondent. The Respondent filed an election of rights form denying the allegations and requested a formal hearing. This matter was referred to the Division of Administrative Hearings on September 24, 1997, and was set for hearing on February 18, 1998.

At the formal hearing, Respondent requested that he be represented at the hearing by Xavier C. Pinellas. Following inquiry, pursuant to Rule 60Q2-2.008(3)(4), Florida Administrative Code, Respondent specifically requested that Dr. Pinellas appear at the hearing as his Qualified Representative. The request was granted.

The Respondent presented and argued his Motion to Dismiss. The motion was denied. Petitioner's ore tenus Motion to Compel Discovery was denied. Petitioner requested the Court take official recognition of certain matters. Official recognition was taken in particular of Chapters 20, 455, and 464, Florida Statutes.

Petitioner presented live testimony of three witnesses: Richard Bonnell, Rebecca Gail Smith Lassiter, and Respondent, as an adverse witness. Petitioner's Exhibit 1, which is a "Certificate of Licensure" regarding the Respondent, was entered into evidence without objection.

The following exhibits were entered into evidence during the

course of the Petitioner's case in chief: Petitioner's Exhibit 2, Forensic Drug Testing Custody and Control Form for

Specimen 1201736 (Patient ID "Frelo"), dated October 5, 1995.); Petitioner's Exhibit 3, Medical Review Officer Determination/ Verification Report dated October 11, 1995, (admitted for limited purposes); Petitioner's Exhibit 4, Laboratory Report for Requisition Number 1201736, and Patient ID "Frelo," dated

October 9, 1995.

Respondent testified in his own behalf and entered into evidence the following two exhibits: Respondent's Exhibit 1, Document prepared by Arise Counseling Associates, dated October 12, 1995, (entered for limited purposes going to allegations concerning participation in IPN); Respondent's Exhibit 2, Report of American Medical Laboratories, Inc., of a urinalysis test taken October 13, 1995.

A transcript of the proceeding was prepared and filed on March 13, 1998. Petitioner filed its proposed recommended order on March 23, 1998. Respondent filed a document entitled: "Facts Regarding Case on March 3, 1998." Both proposals have been given careful consideration in the preparation of this order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.42, Florida Statutes; Chapters 455 and 465, Florida Statutes.

2. The Respondent, Fred Leon London, III, a 48-year-old male, and at all times material to this matter, holds active

   nursing license numbers PN 1089021 and RN 2804642.

   
   

3. Respondent has been a registered nurse for approximately five years.

   
   

4. In October of 1995, Respondent was employed as a registered nurse at Columbia Park Medical Center in Orlando, Florida, working the 3:00 p.m. to 11:00 p.m. shift.

5. On October 4, 1995, the hospital, at which Respondent worked, had a discrepancy with one of its narcotic systems called the Phyxis machine. The discrepancy was reported by Respondent.

6. A search was conducted to locate the missing drugs and the narcotics could not be located at that time.

7. It was determined that Respondent and one other nurse were the last two nurses who operated the machine. Pursuant to hospital policies, the Respondent and the other nurse were asked to submit to a urine screen for the purpose of determining if they had ingested any drugs.

8. The Respondent submitted to a urine screen as requested by his employer on October 5, 1995. The urine screen was performed by Smith Kline Beecham Laboratories.

9. The test results performed on behalf of the hospital and the subsequent voluntary test taken by Respondent on October 13, 1995, cannot support a finding of fact, since the reports are uncorroborated hearsay.

10. Following the in-house investigation, the Respondent

    was terminated from his employment and a report was filed with the Board of Nursing.

11. The missing narcotics were subsequently located the following day. They had been misplaced, but not tampered with. They were returned to inventory.

12. Respondent was referred to the Intervention Project for Nurses (IPN). Respondent participated in a psychosocial assessment on October 12, 1995.

13. Respondent has no prior criminal or disciplinary history and denies that he used marijuana or any other controlled substance on October 4 or 5, 1995.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.569, 120.57(1), and Chapter 464, Florida Statutes.

15. Pursuant to Section 464.018(2), Florida Statutes, the Board of Nursing is empowered to revoke, suspend, or otherwise discipline the license of a nurse for violations of Section 464.18(1), Florida Statutes.

16. This proceeding involves disciplinary action against Respondent's nurse's licenses. Therefore, the burden of proof to establish the facts upon which the Petitioner seeks to discipline Respondent's nurse's licenses is on the Petitioner. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973).

    In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 464.018(1), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

17. Section 464.018(1) provides, in pertinent part:

    
    

    Disciplinary actions.

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       
       

       * * *

       
       

       1. Unprofessional conduct, which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

          
          

       2. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes authorized by this chapter.

          
          

       3. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals. . . .

       
       

18. Section 464.018(2) provides in pertinent part:

    
    

    (2) 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:

    
    

    * * *

    
    

    1. Revocation or suspension of a license with reinstatement subject to the provisions of subsection (3).

    2. Permanent revocation of a license.

    3. Restriction of practice.

    4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    5. Issuance of a reprimand.

    6. Placement of the nurse on probation for a period of time and subject to such conditions as the board may specify. . . .

    
    

19. The Board of Nursing seeks to discipline Respondent's licenses as a nurse, alleging that he has failed to conform to

    the minimal standards of acceptable and prevailing nursing practice; that he has engaged in the possession of a controlled substance; and that he has tested positive for a drug listed in Chapter 893 of the Florida Statutes on an employer-ordered drug screen and without a prescription or legitimate medical reason for using such drug, pursuant to Sections 464.018(1)(h), 464.018(1)(i), and 455.227(1)(q), Florida Statutes, respectively.

20. In a formal administrative hearing, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Section 120.57(1)(c), Florida Statutes (1997) (formerly Section 120.58(1)(a)(1.), Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 808 (Fla. 1st DCA 1986).

21. In the instant case, the principal evidence relied upon by Petitioner is the laboratory report. Clearly, the laboratory test report, standing alone, is hearsay. None of the witnesses had any direct knowledge of Respondent's physical condition on the night of October 5, 1995. There was no testimony of impairment; no testimony of illegal drugs in his possession; no testimony of wrongdoing of any kind by Respondent. Harris, supra.

22. During the hearing, Respondent did not make an admission. Respondent merely repeated that he had been told the results of the test. Respondent steadfastly denied the use of illegal drugs of any kind during the hearing.

23. The test, conducted by a professional laboratory, was conducted at the direction of Respondent's employer. The employer did not conduct the test. Therefore, the test report can only be relied upon in a finding of fact if it falls under the exception to the hearsay rule which permits admission of records of regularly conducted business activity, Section 90.803(6), Florida Statutes (1997).

24. Section 90.803(6), Florida Statutes (1997) provides, in pertinent part:

    (6) Records of regularly conducted business activity.

    
    

    (a) A . . . report . . . in any form, of . .

    . diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such . . . report . . . all as shown by the testimony of the custodian or other qualified witness. . . .

25. Respondent's alleged misconduct was testing positive for marijuana while employed at a hospital, in violation of the law and rules of the Board of Nursing. In order for the laboratory report to fit within the business record exception the laboratory report must have been "kept in the course of regularly conducted business activity," and the making of the report must be a "regular practice of that business activity." The testimony was clear, Respondent's employer did not make the report and no one from the laboratory was called as a witness to establish that the report was a business record of the laboratory. Therefore,

    the test report is not admissible under the business records exception to the hearsay rule. McKenzie Tank Lines, Inc. v. Roman, 645 So. 2d 547 (Fla. 1st DCA 1994); Harris v. Fresh Water Fish Commission, supra.

26. In the event that the record would indicate that the Respondent did not timely object to the admission of the laboratory report, in view of the provision of Section 120.57(1)(c), such evidence is not inadmissible, but such evidence is insufficient to establish a finding of fact because there was no competent evidence introduced which the hearsay evidence could "supplement or explain." Harris, supra at 809; Johnson v. Department of Health and Rehabilitative Services, 546 So. 2d 741 (Fla. 1st DCA 1989). For a critical view of the "Residuum Rule," see the dicta in Bellsouth Advertising and Publishing Corp. v. Unemployment Appeals Commission, 654 So. 2d

    292 (Fla. 5th DCA 1995). See also J. Lawrence Johnston, Admissibility and Use of Evidence in Formal Administrative Proceedings: An Alternative Possibility for Change, 65 Fla. B. J. 63 (March 1991).

27. Not decided is whether the admissibility of the laboratory report, under the business records exception, would have been sufficient to overcome the reliability questions of these types of tests without the testimony of laboratory personnel who actually conducted the tests. See generally the consolidated cases: Seminole County School Board v. Jeffrey L. Jones, et al., DOAH Case Nos. 95-5532 and 96-0506, Recommended Order, dated July 29, 1996, Daniel M. Kilbride, Administrative Law Judge, and the application of the federal Omnibus Transportation and Employee Testing Act.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Board of Nursing find the Respondent not guilty as to Counts I, II, III, and IV of the Administrative Complaint, dated August 4, 1997, and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 8th day of April, 1998, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998.

COPIES FURNISHED:

Craig A. McCarthy, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Dr. Xavier C. Pinellas Qualified Representative

211 Broadway, Suite 115 Kissimmee, Florida 34741

Pete Peterson, General Counsel Department of Health

1317 Winewood Boulevard

Building 6, Room 102-E Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Marilyn Bloss, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004493

Orders for Case No: 97-004493