STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF VETERANS' AFFAIRS, )

)

Petitioner, )

)

vs. ) Case No. 00-2734

)

WILLIAM T. FISHER, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case on September 11, 2000, in Lake City, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: James W. Sloan, Esquire

Department of Veteran Affairs Post Office Box 31003

St. Petersburg, Florida 33731

For Respondent: William T. Fisher, pro se

1300 Sycamore Lane, Suite 148 Lake City, Florida 32025

STATEMENT OF THIS ISSUE

The issue is whether Respondent should be discharged from the Robert H. Jenkins Veterans' Domiciliary Home of Florida.

PRELIMINARY STATEMENT

By letter dated June 14, 2000, Petitioner Department of Veterans' Affairs (Petitioner) advised Respondent William T. Fisher (Respondent) that he was discharged from the Robert H. Jenkins Veterans' Domiciliary Home of Florida (Home).

Petitioner based its decision on Respondent's alleged violation of two contracts which prohibited his use of non-prescription drugs and/or over-the-counter medication not prescribed by a physician.

Respondent requested a formal administrative hearing by letter dated June 23, 2000. Petitioner referred this request to the Division of Administrative Hearings on July 3, 2000.

A Notice of Hearing scheduled this case for hearing on August 11, 2000. Petitioner presented the testimony of three witnesses and offered seven exhibits, which were accepted into evidence. Respondent testified on his own behalf, presented the testimony of four witnesses, and offered one exhibit which was accepted into evidence.

At the close of the proceeding, Petitioner requested and was granted leave to file a post-hearing exhibit consisting of three letters sent either to Respondent from Petitioner or vice versa. That exhibit was filed on September 14, 2000, and is hereby accepted into evidence.

The parties did not request that the court reporter file a copy of the hearing transcript. However, on September 18, 2000, the court reporter filed excerpts of said transcript.

Petitioner filed a Proposed Recommended Order on September 18, 2000. Respondent did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Home is licensed as an assisted living facility.

   
   

   It is also licensed to provide extended congregate care, limited nursing services, and limited mental health services.

2. The Home accepted Respondent as a resident. In July 1998, Petitioner had to transport Respondent to the hospital due to an overdose of medication. Upon his return from the hospital, Respondent told Petitioner's staff that he had taken the overdose intentionally.

3. Thereafter, the Home required Respondent to sign a mental health contract dated September 9, 1998. This contract states as follows in relevant part:

   Qualifications for the Home requires [sic] that a member or applicant must not be mentally ill, habitually inebriated, or addicted to the use of a controlled substance. With these requirements, I understand that to be eligible and maintain my membership in the Home, I must agree to the terms of this contract.

   
   

   * * *

   1. If I use alcohol or any non-prescribed drugs I understand I may be dismissed from the Home.

   2. I understand that I will allow the Veterans' Domiciliary Home of Florida to supervise the self-administering of my medications. I will take my medication as it is prescribed by the primary physician.

      I will only be given my full prescription at the time of my discharge.

   3. I understand upon reasonable suspicion of being under the influence of alcohol or illegal drugs, I consent to testing. The Domiciliary Home staff may take a blood, saliva, or supervised urine sample to test for illegal drugs or alcohol. I authorize members of the Domiciliary staff to perform random searches of my person, vehicle, living quarters, or belongings to determine if I am using drugs or alcohol. If I refuse to allow a blood, saliva, or urine test, or search, or if I interfere in any way with the staff's performance of these duties, I may be dismissed.

      
      

4. The Home also required Respondent to sign a Dual Diagnosis/Substance Abuse/Psychiatric (dual diagnosis) contract dated September 14, 1998. In addition to terms and conditions similar to the ones set forth above, the dual diagnosis contract provides as follows in relevant part:

   10. In order to assist me in gaining freedom from alcohol and drugs, I will not use alcohol, tranquilizers, sleeping medication, over the counter medications, or any other chemical escapes which have not been prescribed by a physician. If I use alcohol or non-prescribed drugs, I understand I will be dismissed from the Home.

5. In November 1998, one of Respondent's doctors wrote him a prescription for Ritalin. Respondent became very upset when a nurse would not administer the Ritalin to him without first checking with Petitioner's staff physician. Eventually, Respondent's primary care physician approved the administration of Ritalin together with Respondent's other medications.

6. In January 1999, Respondent worked for Petitioner as a receptionist. After working overtime on one occasion, Respondent's speech was slurred, his eyes were dull, and his voice was horse. Petitioner's staff became suspicious that Respondent was taking medication in violation of his contracts. Respondent subsequently tested negatively for all substances except his prescribed medicines.

7. In March 1999, Respondent violated his contracts by having a prescription for methadone filled at a drugstore and removing twenty-four of the pills from the bottle before turning the medicine over to Petitioner's staff as required by his contract.

8. Petitioner's staff advised Respondent that he would be dismissed from the Home by letter dated March 23, 1999. Respondent subsequently requested Petitioner's Executive Director to review the decision to discharge him from the Home. By letter dated August 16, 1999, Petitioner rescinded its

   decision to dismiss Respondent from the Home but warned him that any further infraction would result in his immediate expulsion.

9. On April 14, 2000, Petitioner conducted a routine facility-wide room inspection at the Home. During the course of the inspection, Petitioner found a bottle of Ephedra 250 in Respondent's room. According to the label on the bottle, Ephedra 250 is a dietary supplement that General Nutrition Corporation (GNC) markets.

10. During the hearing, Respondent admitted that he heard about Ephedra 250 on a television show that discussed its benefits as a diet aid as well as its dangerous side effects. The label states as follows in pertinent part:

    WARNING: Seek advice from a health care practitioner prior to use if you are pregnant or nursing, or if you have high blood pressure, heart or thyroid disease, diabetes, difficulty in urination due to prostate enlargement, or if taking MAO inhibitor or any other prescription drug. Reduce or discontinue use if nervousness, tremor, sleeplessness, loss of appetite or nausea occur. Not intended for use by person under the age of 18. The maximum recommended dosage of Ephedrine for a healthy adult is no more than 100 mg in a 24 hour period for not more than 12 weeks.

    Improper use of this product may be hazardous to a person's health.

    
    

11. Each capsule of Ephedra 250 contains 250 mg of MA Huang Extract (Ephedra sinica) or ( 15 mg of 6 percent Ephedrine). The greater weight of the evidence indicates that

    Ephedra 250 is an over-the-counter medication despite being labeled as a diet supplement. Ephedrine is a prescription drug in Florida unless an individual dose is less than a specified quantity.

12. Petitioner's staff properly became concerned about Respondent's possession of Ephedra 250 because he takes numerous prescribed medications, which can have serious side effects, if taken with certain other medications. Ephedrine is one of those drugs. For instance, Respondent takes Cozaar for high blood pressure, Methadose to reduce his dependency on Percoset, and Ritalin. Persuasive evidence indicates that large doses of Ephedra can be used as a recreational drug. Respondent knew or should have known that Ephedra 250 was prohibited by his contracts with the Home.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

14. Petitioner met its burden of proving by a preponderance of the evidence that Respondent should be dismissed as a resident of the Home. Section 120.57(1)(J), Florida Statutes; Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 788 (Fla. 1st DCA 1981).

15. Section 499.033, Florida Statutes, states as follows:

    
    

    499.033 Ephedrine; prescription required.– Ephedrine is declared to be a prescription drug.

    1. Except as provided in this subsection, any product that contains any quantity of ephedrine, a salt of ephedrine, an optical isomer of ephedrine, or a salt of an optical isomer of ephedrine may be dispensed only upon the prescription of a duly licensed practitioner authorized by the laws of the state to prescribe medicinal drugs.

    2. A product containing ephedrine described in paragraphs (a)-(e) is exempt from subsection (1) if it may lawfully be sold over the counter without a prescription under the federal act; is labeled and marketed in a manner consistent with the pertinent United States Food and Drug Administration Over-the-Counter Tentative Final or Final Monograph; and is manufactured and distributed for legitimate medicinal use in a manner that reduces or eliminates the likelihood of abuse, when considered in the context with: the package sizes and the manner of packaging of the drug product; the name and labeling of the product; the manner of distribution, advertising, and promotion of the product; the duration, scope, health significance, and societal cost of abuse of the particular product; the need to provide medically important ephedrine-containing therapies to the public for United States Food and Drug Administration approved indications on an unrestricted, over-the-counter basis; and other facts as may be relevant to and consistent with public health and safety.

       1. Solid oral dosage forms that combine active ingredients in the following ranges for each dosage unit:

          1. Theophylline (100-130mg), ephedrine (12.5-24mg).

          2. Theophylline (60-100mg), ephedrine (12.5-24mg), guaifenesin (200-400mg).

          3. Ephedrine (12.5-25mg), guaifenesin (200- 400mg).

          4. Phenobarbital (not greater than 8mg) in combination with the ingredients of subparagraph 1. or subparagraph 2.

       2. Liquid oral dosage forms that combine active ingredients in the following ranges for each (5ml) dose:

          1. Theophylline (not greater than 45mg), ephedrine (not greater than 36mg), guaifenesin (not greater than 100mg), phenobarbital (not greater than 12mg).

          2. Phenylephrine (not greater than 5mg), ephedrine (not greater than 5mg), chlorpheniramine (not greater than 2mg), dextromethorphan (not greater than 10mg), ammonium chloride (not greater than 40mg), ipecac fluid extract (not greater than 0.005ml).

       3. Anorectal preparations containing less than 5 percent ephedrine.

       4. Nasal decongestant compounds, mixtures, or preparations containing 0.5 percent or less ephedrine.

       5. Any drug product containing ephedrine that is marketed pursuant to an approved new drug application or legal equivalent under the federal act.

    3. The department may implement this section by rule.

    
    

16. Under the above-referenced statute, Ephadra 250 is an over-the-counter medicine. Respondent violated his contracts by being in possession of and using this medicine when he knew or should have known that it was prohibited.

17. Respondent knew that in order for him to maintain his residency at the Home, he would have to abide by the terms of his contracts. He did not keep his bargain.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order dismissing Respondent as a resident of the Robert H. Jenkins Veterans' Domiciliary Home of Florida.

DONE AND ENTERED this 6th day of October, 2000, in

Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2000.

COPIES FURNISHED:

James W. Sloan, Esquire Department of Veterans' Affairs Post Office Box 21003

St. Petersburg, Florida 33731-8903

William T. Fisher

1300 Sycamore Lane, Suite 148 Lake City, Florida 32025

Lt. Col. Robin L. Higgins, Executive Director Department of Veterans' Affairs

Post Office Box 31003

St. Petersburg, Florida 33731-8903

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: 00-002734

Orders for Case No: 00-002734