The Issue The issue in Count I of the Administrative Complaint is whether the Respondent violated Section 458.331(1)(q), Florida Statutes, by prescribing a controlled substance other than in the practice of his profession. The issue in Count II is whether the Respondent violated Section 893.05(1), Florida Statutes, by failing to prescribe controlled substances in good faith and in the course of his professional practice, and thereby violated Section 458.331 (1)(h), Florida Statutes. The issue in Count III is whether the Respondent violated Section 893.135(1)(e), Florida Statutes, by knowingly delivering 200 grams or more of methaqualone, and thereby violated Section 458.331(1)(h), Florida Statutes. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Bernard Gross, is a licensed medical doctor, having been issued license number ME 009774. His last known address is 13550 Memorial Highway, North Miami, Florida 33161. (See prehearing stipulation of the parties.) On April 20, 1982, Arthur Serig and Robert Fetner, undercover police officers of the City of Miami, met with the Respondent at the Miami Marina in the vicinity of Biscayne Boulevard at Sixth Street in Miami, Florida, to obtain a sample of methaqualone (trade name "Quaalude") tablets which the Respondent had offered to sell to Officer Serig. At said meeting, the Respondent delivered a brown paper bag to Officer Serig containing 1,000 suspected methaqualone tablets. (Tr. 51-55, 94, 95.) Officer Serig took the bag and the suspected methaqualone tablets and returned to the City of Miami Police Department. There, he placed the contents of the bag in the Property Unit of the City of Miami Police Department, where they were received by Property Specialist Gilda Scott. (Tr. 55, 57, 58, 99.) Officer Serig filled out a police property unit receipt for the bag and its contents, and Property Custodian Gilda Scott gave him a copy of this document as a receipt for the items she received. This property receipt is numbered 50419 and reflects that the City of Miami Narcotics case number is file number 10C1179 and the impounding officer's name is Arthur Serig. (P's-1.) At the time Officer Serig gave the property to Property Specialist Scott, he requested that the contents of the bag be sent to the Metro-Dade County Crime Laboratory for analysis. On April 21, 1982, the suspected methaqualone tablets were sent to the Metro-Dade County Crime Laboratory. On that date, Property Specialist Olga Lendic signed out one sealed envelope containing 1,096.3 grams of suspected methaqualone tablets to Officer Caesar Phillipe. Officer Phillipe carried the sealed envelope to the crime laboratory. After the sealed envelope was received by the crime laboratory, Crime Analyst Albert C. Christensen obtained the envelope, which was still sealed, opened the envelope, and took out 1,091.3 grams of suspected methaqualone tablets. (Tr. 120-127.) Christensen analyzed the contents of the envelope and prepared a written laboratory analysis report. (P's-3.) The tests performed by Christensen revealed that the tablets received by Officer Serig from the Respondent were methaqualone tablets, also known under their trade name as Quaaludes. (Tr. 128; P's-3.) Christensen's laboratory analysis report bears the Dade County case number 139891C, a City of Miami case number 10C1179, and references a Miami property locator number B-50419. On May 7, 1982, Officer Serig and undercover Officer Noel Rojas met the Respondent in the area of the Miami Marina for the purpose of purchasing Quaaludes. The Respondent was sitting in a yellow car when they arrived. The Respondent opened the trunk of the car and produced a large bucket or pail containing five plastic bags of suspected methaqualone tablets. A discussion took place between the Respondent and Officer Serig regarding the sale of the tablets to Officer Rojas by the Respondent. Thereafter, the Respondent was placed under arrest by other officers and Officer Serig. Officer Serig took custody of the suspected methaqualone tablets and returned with them to the police station. The suspected methaqualone tablets were turned in to the Property Unit, where they were received by Gilda Scott. Officer Serig prepared a property receipt, number 51126. This property receipt bore the City of Miami case number 10C 1179, Officer Serig's name as the impounding officer, and the Respondent's name as the suspect. Officer Serig took one tablet from each plastic bag in the pail, placed each tablet in a plastic envelope, and sealed the five plastic envelopes in a manila envelope labeled Item 2 of 2. Officer Serig requested that the property specialist send Item 2 to the crime laboratory for analysis. Item 1 on the receipt remained in the Property Unit. Scott signed the receipt, indicating that she received the pail of tablets and the sealed manila envelope containing the five tablets sealed in individual plastic envelopes. On May 10, 1982, Property Specialist Olga Lendic signed out Item 2, the manila envelope described in paragraph 6 above, from the Property Unit to Officer D. Miller, who transported Item 2 to the crime laboratory. Crime Specialist Jack Genova opened the sealed manila envelope and, from the five plastic envelopes, selected one envelope, opened it, and removed the tablet. Genova subjected this tablet to laboratory analysis and prepared a written laboratory report, received as Petitioner's Exhibit 4. (Tr. 29-39.) Genova's laboratory report contains the Dade County case number 163580C, the City of Miami case number 10C1179, the City of Miami property number B-51126, the Respondent's name as defendant, and a description of the evidence as five bags with one white tablet each. The tests performed by Genova determined that the tablet analyzed was methaqualone, also known as Quaalude. (Tr. 37-39, P's-4.) The undercover officers all testified that the Respondent had never prescribed any medication for them.
Recommendation Having found the Respondent guilty of two violations of Section 458.331(1)(h), Florida Statutes, by being in the knowing, actual possession of and delivering 200 grams or more of methaqualone under such circumstances that it was not related to his medical practice, contrary to Section 893.135(1)(e), Florida Statutes, it is recommended that the Respondent's license to practice medicine in the State of Florida be revoked and that an administrative fine of $1,000 for each violation of the statutes be assessed against the Respondent, for a total of $2,000. DONE and RECOMMENDED this 20th day of January, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1984.
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Sections 943.1395(6) and (7), and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.
Findings Of Fact At all material times, Respondent has been a certified law enforcement officer, holding certificate number 17231. He has been so certified for 18 years. He has been employed by the Florida City Police Department for eight years. According to the Mayor of Florida City, Respondent has a great reputation in the community and is often commended, including two weeks prior to the hearing by a citizens' group. Sometime in August or September, 1999, Respondent's mother called him from her home in south Dade County. Fearful of an approaching hurricane, she asked Respondent to come to her home and install plywood to protect her home from hurricane damage. While in a shed at his mother's home, preparing to install the plywood, Respondent found a short-barreled shotgun. The weapon was 21 inches long with a 13-inch barrel. Directed by his mother to get rid of the shotgun, Respondent placed it in a nearby duffel bag and, after finishing the hurricane preparations, took the bag to his apartment, and, without opening the zipped duffel bag to examine the weapon, placed the bag under his bed. Due to an unrelated police matter, Respondent was arrested by officers of the Florida City Police Department on December 8, 1999. During the course of the arrest, which took place at the police station, officers asked Respondent for his badge and service weapon, which were at Respondent's home. Respondent and the officers thus went to Respondent's home to obtain his service weapon and badge. While at Respondent's home, one of the officers asked if Respondent had any other weapons. Respondent went into his bedroom, pulled the closed duffel bag out from under the bed, and handed the duffel bag to the officer. The officer to whom Respondent had handed the duffel bag opened the bag and removed the shotgun. Trying to open the shotgun, the officer was unable to do so. The officer asked Respondent for help, and he told him to push a button, but, even after one to two minutes of effort, the officer still was unable to open the shotgun. On December 9, 1999, an officer of the Florida City Police Department contacted a special agent of the U.S. Bureau of Alcohol, Tobacco, and Firearms. After an investigation and conferring with the U.S. Attorney's Office, the special agent arrested Respondent for a violation of federal law in connection with his possession of the short-barreled shotgun. Sometime in December 1999, the U.S. Attorney's Office for the Southern District of Florida filed a one-count indictment, charging Respondent with the knowing possession of a firearm with an overall length of less than 26 inches and a barrel length of less than 18 inches, in violation of federal law. Following a jury trial at which Respondent won an acquittal, the court entered a Judgment of Acquittal on February 22, 2000. The special agent testified another special agent test fired the weapon in the presence of the special agent who testified at the hearing. The special agent testified that the weapon was operable at the time of the test firing. However, the special agent admitted that neither he nor the other special agent documented the test firing. The special agent also admitted that, in his five and one-half years with the Bureau, this is the only time that he participated in a test firing of a weapon without documenting the test. Petitioner has failed to prove that, on December 9, 1999, the shotgun was operable. The officer to whom Respondent handed the duffel bag had considerable difficulty even opening the shotgun. No evidence suggests a testing of the weapon to determine its operability at anytime in close proximity to December 9, 1999. The testimony of the special agent concerning test firing is short of clear and convincing for two reasons. First, Petitioner did not establish the predicate that the shotgun, at the time of this reported test firing, was unaltered from the time of its seizure on December 9, except for loading of a shell to be test fired. Second, the special agent did not conduct the test, the test was undocumented, and the special agent has never participated in another test that was undocumented. This testimony does not rise to clear and convincing evidence that the shotgun was even tested. For these reasons, Petitioner has failed to prove that the shotgun that Respondent possessed on December 9, 1999, was, or could readily be made, operable.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 August, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Linton B. Eason Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 C. Michael Cornely Hartman & Cornely, P.A. 10680 Northwest 25th Street, Suite 200 Miami, Florida 33172-2108
The Issue The issues concern the question of whether the discovery of certain deficiencies related to the placement of legend drugs at the bedside of residents within the respondent's facility should be classified as a Class II or Class III deficiency within the meaning of Section 400.23, Florida Statutes.
Findings Of Fact On September 19 through 21, 1983, the State of Florida, Department of Health and Rehabilitative Services made an inspection of the Skilled Nursing Facility, operated by Jacksonville Methodist Home, Inc. as part of the Wesley Manor Retirement Village. That inspection was in keeping with the provisions of Chapter 400, Florida Statutes. The location of the facility is in St. Johns County, Florida. In the course of this inspection, in the room of one of the patients, the legend drugs Nitrol Ointment 2 percent and Aristocort A 0.1 percent Creme were discovered at the bedside of that patient. In another room, related to a second patient, the legend drug Timoptic 0.5 percent Eye Drops was found. Finally, in a third room, the legend drug Granulex Spray was found at the bedside of that patient. Although the patients were relatively alert and there was more than the minimum staffing required of such facilities, certain other ambulatory residents within the facility could have gained admittance into the three rooms where patients were residing for whom the various legend drugs had been prescribed. No indication was given that patients other than those for whom the legend drugs had been prescribed had used these legend drugs or of any other such event in the past history of the facility. While the facility in question had not experienced problems with the patients misusing legend drugs, there have been occasions in the experience of the inspector for the State, Patricia Dill, who is a graduate nurse, in which residents in comparable facilities have entered rooms of other patients and taken drugs not prescribed for that intruder. As indicated in the petitioner's Exhibit No. 2 admitted into evidence, there were 55 patients in the facility on September 19, 1983, of which 37 were listed as confused or disoriented, and 19 patients were under a form of restraint. Twelve patients required no assistance with ambulation and 32 required some form of assistance such as wheelchair, cane, or otherwise. Nitrol Ointment is a timed release nitroglycerin, to be used three times a day, which has the effect of release over an eight hour period and is prescribed for persons suffering angina. If used by a patient for whom it was not prescribed it might cause headaches or vomiting, if ingested. Placing the ointment on the skin would cause a lowering of blood pressure in patients for whom it was not prescribed. Aristocort Creme is a steroid, not for ingestion. If ingested it could cause the patient to feel bad, to include possible vomiting. Placement in the eyes would cause a problem with sight. Timoptic Eye Drops are related to the treatment of glaucoma and would not normally cause problems if swallowed, as opposed to being placed in the eyes. Granulex Spray is an enzyme which attacks dead tissue. Properties that present any danger to the patient would be related to spraying into the eyes. It is the aerosol feature of the Granulex Spray which presents that problem. The misuse of the legend drugs in question would not be expected to be a life-threatening event. Based upon the observations of legend drugs within the patient rooms, respondent is said to have violated the provisions of Rule 10D-25.112 (11), Florida Administrative Code. While the respondent concedes such violation, it disagrees with the petitioner's characterization of this violation as a Class II violation, and requested the formal hearing to challenge that classification.
Recommendation Upon a full consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered which classifies the violations related to the discovery of legend drugs in the rooms of the residents/patients as Class III deficiencies. DONE and ENTERED this 31st day of August, 1984 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1984. COPIES FURNISHED: Jonathan S. Grout, Esquire Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32231 R. Grady Snowden, Jr. Administrator Wesley Manor Retirement Village State Road 13 and Julington Creek Road Jacksonville, Florida 32223 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent possessed Dilaudid without a legitimate purpose, and whether Respondent is unable to practice nursing with reasonable skill and safety, in violation of section 464.018(1), Florida Statutes, as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Nursing, is the state agency charged with regulating the practice of nursing in the state of Florida, pursuant to section 20.43, and chapters 456 and 464, Florida Statutes. At all times material to this proceeding, Lisa Michelle Jackson was a licensed registered nurse in the state of Florida, holding license number RN 9375240. Respondent’s current address of record is 2358 York Street, Jacksonville, Florida 32207. On Saturday, November 7, 2015, Respondent left work and picked up her minor son from her parents’ house. She drove home, parked at her front door, and lost consciousness. At some point, Respondent’s parents called her cell phone. The phone was answered by Respondent’s son, who advised them of the situation. Respondent’s parents went to her house, and apparently called emergency medical services. EMS personnel arrived on the scene and administered Narcan to Respondent. Narcan is a medication that blocks receptors for opioid-based drugs, and is used to reverse the effects of opioids. It is commonly used when medical personnel suspect a patient of an opioid overdose. Respondent was thereafter transported to St. Vincent’s Riverside Medical Center (Riverside), and admitted with encephalopathy and acute respiratory failure. Respondent had to be placed on a respirator. A urine drug screen was performed, which returned positive for benzodiazepines and opiates. Riverside related the encephalopathy and respiratory failure to a suspected drug overdose. Respondent denied having taken anything containing benzodiazepines. She did indicate that approximately a year earlier she had undergone a tooth extraction, for which her dentist had prescribed Percocet. She had some left over, and testified that she had taken some for back pain several days before November 7, 2015. Respondent was discharged from Riverside on November 9, 2015, at approximately 11:40 a.m. After her discharge from Riverside on November 9, 2015, but later that afternoon, Respondent was speaking with her mother on the telephone. Respondent’s mother did not like the way she sounded, and came to the house. Respondent’s mother believed that Respondent was lethargic, but Respondent admitted only to being tired from her earlier hospital stay. EMS was called, and Respondent was again transported to Riverside, where she was admitted at approximately 5:45 p.m. Her diagnosis on admission was hypertensive disorder. She self-discharged against medical advice, signing the discharge papers at 6:36 p.m. There was no evidence that Respondent’s admission to Riverside on November 9, 2015, was the result of the use or abuse of any substance. On November 20, 2015, Respondent and Carl Nesmith were at Respondent’s residence. Respondent testified that she was experiencing back pain. At some time during the evening, Respondent took three or more Dilaudid tablets. Respondent testified that the tablets belonged to Mr. Nesmith, though the evidence was not sufficient to support a finding to that effect. Nonetheless, by the time of the arrival of the EMS team and her subsequent admission to Riverside as described herein, the tablets were in her possession. Dilaudid is a brand name of hydromorphone, an opioid. Pursuant to section 893.03(2)(a)1.k., Florida Statutes, hydromorphone is a Schedule II controlled substance that “has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.” Respondent did not have a prescription for Dilaudid. At some point during the evening of November 20, 2015, Respondent passed out in her bathroom. EMS was called and dispatched to Respondent’s residence. The inference is that Mr. Nesmith called them, but since Respondent was unconscious, and Mr. Nesmith did not testify, the identity of the caller is not known. More to the point, the identity of the caller is not relevant. When EMS personnel arrived, they found Respondent unresponsive on the bathroom floor. Mr. Gorsuch recognized Respondent’s symptoms, including agonal breathing, as characteristic of an opioid overdose, and administered Narcan to counteract the effects of the suspected drug. The Narcan “worked,” and Respondent regained consciousness. EMS personnel discovered a plastic bag with loose pills in Respondent’s purse. The pills were taken with Respondent as she was transported by EMS to Riverside. Respondent was received at the Riverside emergency room shortly after midnight on November 21, 2015. Her condition was described as “drowsy but arousable with slurred speech.” Upon her arrival at Riverside, Ms. Quartano observed that Respondent was clutching a Ziplock-type bag of pills in her hand. How the pills came to be in her hand was not explained. Whether in her purse or in her hand, the pills were in Respondent’s possession. The pills were provided to Dr. McBride Johnson, who identified the pills as Dilaudid based on their shape, color, and markings. Respondent’s diagnosis upon admission was acute encephalopathy; poisoning by unspecified drugs, medicaments, and biological substances, accidental, initial encounter; and altered mental status. Respondent underwent a urine screening, which returned positive for benzodiazepines. Despite the fact that Respondent knew that she had taken “pills” during the evening in question, she denied to hospital personnel that she had taken any drugs or alcohol. As she had on November 9, 2015, Respondent self- discharged against medical advice, signing the discharge papers at 5:30 a.m. Upon her discharge from the hospital, Respondent was taken into custody by Sergeant Coleman from the Jacksonville Sheriff’s Office. Respondent told Sergeant Coleman that the Dilaudid had been given to her by a friend for back pain, and that she had them for several days. Despite her deposition testimony that she had taken pills allegedly provided to her by Mr. Nesmith, she told Sergeant Coleman that she had taken one of her previously prescribed Percocet tablets, and denied having taken any of the pills given to her by her “friend.” Respondent was then placed under arrest. Respondent’s mother had, for years, taken care of Respondent’s son while Respondent was working, often at night. Between November 2015 and January 2016, Respondent’s parents took over primary care of her son in order to provide him with a more stable environment. There is no evidence that Respondent ever diverted opioids, or any other drugs, from her employer. However, after having been visited by a Department of Health investigator, Respondent’s employer, University of Florida Health - Shands (Shands), first suspended and then, in January 2016, terminated Respondent’s employment as a registered nurse. On February 14, 2016, a Jacksonville Sheriff’s Deputy performed a traffic stop on Respondent after observing her fail to maintain her lane of traffic, stop past the stop bar at a stop light, drive up onto the curb nearly striking a pole, drive onto another curb and nearly onto the sidewalk, and while attempting to negotiate a turn, nearly strike another pole. The deputies called to the scene observed that Respondent had bloodshot eyes, slurred speech, lethargic movements, and that she was unsteady on her feet. She underwent Field Sobriety Exercises but failed to perform them to standard. Respondent testified that she had taken some over-the- counter sleeping medication at least 12 hours before being stopped. She could think of no reason why such medications would have had an effect on her by the time of the stop. Respondent stated that her erratic driving was caused by her vehicle pulling to the right and being difficult to control, which was consistent with her deposition testimony that it was because her car needed an alignment. That explanation was not believable. Respondent was arrested for driving while under the influence. The charges were ultimately reduced to reckless driving, but Respondent was required to attend DUI driving school, attend the DUI Victim Impact Panel, and perform community service. On March 15, 2016, Respondent was walking from her mother’s house to her car when she passed out in her mother’s yard. The Jacksonville Fire and Rescue Department responded, arriving at approximately 12:15 p.m. The EMS personnel administered Narcan to Respondent, and transported her to Baptist Medical Center (Baptist). By the time she arrived, she was able to communicate with medical personnel, and attributed the incident to a fight with her mother, and lightheadedness from not eating that day. Respondent testified that “they told me at the hospital that I had morphine in my system, and I had no morphine.” Respondent’s understanding of what she was told is not substantiated by the Baptist medical records. Thus, the evidence is not sufficient to support a finding that Respondent had morphine in her system on March 15, 2016. Respondent was discharged from Baptist at approximately 1:15 p.m., about an hour after her arrival. Beginning “towards the end of 2015,” and extending “maybe up until March or April [2016], maybe a little later,” Respondent went to the Jacksonville Metro Treatment Center where she received daily methadone treatments in an effort to wean herself off of controlled substances. She “somewhat” received counseling, but the substance of her testimony indicates that the methadone was the driving cause of her visits to the treatment center. She stopped attending the treatment center due to the cost. From April 2016, when she stopped receiving methadone treatment at the Jacksonville Metro Treatment Center, until June or July 2016, Respondent received outpatient Suboxone treatment at Merit Health River Region, which accepts Medicaid. Suboxone is like methadone, but it blocks opioid receptors. Respondent stopped going to River Region because it was hard for her to get there due to transportation issues. Respondent did not complete her treatment, and she was not advised that she was in remission or that she should discontinue her treatment. Respondent has received no substance abuse treatment since she stopped going to River Region. On or about March 17, 2016, Dr. Sanchez evaluated Respondent as allowed by section 464.018(1)(j). The evaluation included not only a face-to-face interview with Respondent, but included a review of records, including medical and law enforcement records, related to each of the incidents described herein. During the evaluation, Respondent advised Dr. Sanchez that she had used opioids “opportunistically” for about 10 years, with her usage being sporadic and impulsive. Respondent further advised Dr. Sanchez that she had used a Fentanyl patch three to four days prior to the evaluation. Pursuant to section 893.03(2)(b)9., Florida Statutes, Fentanyl is a Schedule II controlled substance with the same potential for abuse as Dilaudid. Respondent did not have a prescription for Fentanyl. Dr. Sanchez opined that Respondent’s use of Fentanyl that close to the evaluation, with the risk of detection in the toxicology screen, was an indication of the strength of her addiction. Respondent did not tell Dr. Sanchez about the March 15, 2016, incident during which she passed out in her mother’s yard, an incident that occurred only two days prior to the evaluation. She agreed that the incident would have been relevant to Dr. Sanchez’s evaluation. The failure to disclose the incident is indicative of an evasive attitude towards matters that would reasonably be expected to affect Respondent’s ability to practice nursing with reasonable skill and safety. Dr. Sanchez noted that Respondent had a history of emergency room visits over extended periods of time with different pain complaints, including back pain, abdominal pain related to gastric bypass surgery, and a broken tooth, all of which resulted in recommendations for short-term opiate therapy. Dr. Sanchez opined that Respondent’s actions suggested drug- seeking behavior. However, the maladies described, including a bulging disc from a car accident, and chronic tooth issues including, at the time of the evaluation, an abscess, were diagnosed by physicians, who prescribed pain management medications, and were not illusory. Regardless of whether Respondent’s use of opioids was initiated as a result of a medically-prudent prescription, the evidence is clear and convincing that Respondent’s use has passed to the stage of addiction. Dr. Sanchez opined that the incident on November 7, 2015, when Respondent took some form of opioid and picked up her child on the way home, ultimately losing consciousness at the wheel of her car, was evidence of a strong compulsion to use opioids. Dr. Sanchez’s opinion that this incident indicated a significant lack of judgment and control is credited. The incident on November 20, 2016, is further strong evidence of a growing and dangerous addition. In light of the other incidents described herein, and Respondent’s familiarity with opioids over the years, both as a patient and a nurse, Respondent’s testimony that she did not understand what she was taking that evening is simply not credible. Dr. Sanchez stated the circumstances surrounding Respondent’s February 14, 2016, arrest for driving under the influence is further evidence that Respondent was “losing control” of her addiction. The suggestion that the incident was the result of poor alignment is not credible, particularly in light of Respondent’s appearance and performance during the stop. Dr. Sanchez determined that Respondent refuses to accept responsibility for her behavior and remains in denial of her substance abuse issues, a conclusion that is supported and accepted. As a result of his evaluation, Dr. Sanchez diagnosed Respondent with severe opioid use disorder. He opined that Respondent has significantly impaired judgment due to her substance abuse, which precludes her from functioning as a registered nurse with the necessary skill and safety to patients. His testimony is credited. Dr. Sanchez further opined that Respondent requires an extended period of continuous supervision with monitoring, substance abuse treatment, random toxicology testing, and an extended period of time of documented abstinence from controlled substances before Respondent would be able to practice nursing with sufficient skill and safety to patients. He recommended that Respondent complete a full course of treatment geared to substance abuse and chemical dependency, initially as inpatient treatment, followed by an intensive outpatient program after a reasonable period of abstinence. Finally, Dr. Sanchez recommended that Respondent execute an Intervention Project for Nurses (IPN) monitoring agreement. IPN is the impaired practitioner program for the Board of Nursing, pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department for the protection of the public. Respondent has not entered any form of inpatient treatment, though she indicated that she is currently on a wait- list for inpatient treatment, has discontinued outpatient treatment, and has not entered into an IPN agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order: determining that Respondent violated sections 464.018(1)(i) and 464.018(1)(j); imposing a suspension of license number RN 9375240 for one year and thereafter until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing, with such demonstration to include at least one IPN evaluation in which the evaluator finds Respondent to be able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, as imposed; imposing an administrative fine in the amount of $250.00; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 29th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2016. COPIES FURNISHED: Lisa Michelle Jackson 2356 York Street Jacksonville, Florida 32207-3541 (eServed) Rob F. Summers, Esquire Brynna J. Ross, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative action, as amended, and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material herein, respondent, Qasem Shahinda d/b/a Ismael and Son Supermarket, held alcoholic beverage license number 23-10720, series 2- APS, for the premises located at 14528 Lincoln Boulevard, Miami, Florida. At all times material hereto, respondent was authorized to receive U.S.D.A. food stamps in exchange for food items, and had received training prior to such authorization from the United States Department of Agriculture as to, inter alia, items of merchandise which could or could not be exchanged for food stamps. In December 1992, U.S.D.A. Investigator William Bethel (Bethel) and U.S.D.A. Investigative Aide Mary Pierce (Pierce) commenced an investigation of the licensed premises to ascertain whether nor not persons associated with the premises were complying with State and Federal law regarding the acceptance of U.S.D.A. food stamps. In each instance, Bethel accompanied Pierce to the premises and provided her with the U.S.D.A. food stamps used in the investigation. On December 10, 1992, Pierce entered the license premises with $30.00 in U.S.D.A. food stamps. At or about 1:20 p.m. that date, a female clerk on the premises accepted food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, and one Massengill disposable douche. On April 14, 1993, Pierce entered the licensed premises with $65.00 in U.S.D.A. food stamps. At or about 12:30 p.m., another female clerk accepted $32.79 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer and one pack of Newport cigarettes. 1/ On April 14, 1993, Investigator Bethel entered the licensed premises with $45.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:35 p.m., the same female clerk accepted $38.97 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one box of Cheer detergent, and one box of Clorox dry bleach. 2/ On April 28, 1993, Pierce entered the licensed premises with $55.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 11:40 a.m., the same female clerk she had encountered on April 14, 1993, accepted $53.85 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, one roll of Reynolds Foil, and one box of Hefty kitchen bags. 3/ Pierce returned to the premises on April 28, 1993, with $65.00 in U.S.D.A. food stamps. At or about 11:55 a.m., Pierce met with the same female clerk and sold her the $65.00 in U.S.D.A. food stamps for $25.00 in United States currency. 4/ On July 19, 1993, Pierce entered the licensed premises with $140 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:45 p.m., a male clerk accepted food stamps in exchange for merchandise which, in addition to eligible items, included an ineligible pack of Winston cigarettes. Moreover, the same male clerk purchased from Pierce $130.00 in U.S.D.A. food stamps (two full $65.00 books) for $70.00 in United States currency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the aforesaid violations and assessing a $2,000.00 civil penalty. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of March 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1995.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
The Issue The issues are whether Respondent obtained Oxycontin by using a forged prescription, in violation of Section 464.018(1)(h), Florida Statutes, and Rule 64B9-8.005, Florida Administrative Code, which prohibit unprofessional conduct, and in violation of Section 464.018(1)(i), Florida Statutes, which prohibit the unauthorized possession, sale, or distribution of controlled substances; and whether Respondent's use of Oxycontin affects her ability to practice nursing with reasonable skill and safety, in violation of Section 464.018(1)(j), Florida Statutes, which prohibits the inability to practice nursing with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals or as a result of any mental or physical condition. If so, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a licensed registered nurse, holding license number RN 521142. She has been so licensed for 31 years. Respondent's long career in nursing has featured dedication, hard work, commitment, and competence. The record does not reveal any past discipline. For most of Respondent's professional career, starting in 1971, she has worked at Indian River Memorial Hospital in Vero Beach. Respondent has worked in various capacities at the hospital, including the emergency room and operating room. Respondent later helped develop a neurological unit at the hospital. Starting in 1980, she worked for a couple of years at Vero Orthopedics. Since 1997, Respondent has worked on a contract basis at the Indian River Memorial Hospital, although her present physical infirmities, partly described below, prevent her from working at present. In May 2000, Respondent injured her back while moving a heavy patient in the hospital. A couple of months later, Respondent underwent a laminectomy to relieve the pain from two herniated disks. Six weeks after the surgery, Respondent reinjured her back and had to undergo additional surgery. Six weeks after the second surgery, Respondent, who was not doing well, left her job at the orthopedic clinic and took a less strenuous job. One month after doing so, Respondent was still experiencing pain when she got into and out of cars. In June 2001, Respondent underwent a third operation, in which the surgeon fused two injured vertebrae. The surgery obtained access to the vertebrae by a posterior incision running from the breast to the pubis. The surgery also required a hip bone graft, thus necessitating an incision to the hip. The recovery from this excruciatingly painful surgery was difficult, and Respondent has not yet returned to work, although she is nearing the point at which she can perform some nursing-related work, such as teaching. At present, she still has difficulty walking or standing. When discharging Respondent from the hospital in late June 2001, Dr. Gomez prescribed her Oxycontin for pain. Dr. Gomez was covering for Respondent's neurosurgeon, Dr. Magana. Later, Dr. Cunningham, a pain management specialist and Respondent's family physician, resumed the care of Respondent. Dr. Cunningham continues to monitor Respondent and treat her pain. On direct examination, Respondent testified that she has not taken Oxycontin since December 2001. (However, on August 9, 2002, Respondent told her certified addictions professional that she had not taken any Oxycontin since March 2001.) Respondent testified that, after Oxycontin, she took no pain medication besides nonsteroidal anti-inflammatory medications and steroids. However, on cross-examination, Respondent admitted that she takes Methadose as needed, pursuant to a prescription from Dr. Cunningham. Respondent testified that he switched her from Oxycontin in July 2002. Respondent filled the Methadose prescription at a different drug store than the one that she has used for her other prescriptions. On October 5, 2001, Respondent presented a forged prescription to a different drug store than the one she has used for her other prescriptions. The prescription was for fifty 20- mg. Oxycontin tablets, which Respondent picked up two days later. Respondent fraudulently obtained the Oxycontin for her own use. Oxycontin is an analgesic opioid and a schedule II controlled substance. It is highly addictive and presently among the most commonly abused controlled substances. Oxycontin can produce a feeling of short-lived euphoria, as well as impaired cognitive functioning and impaired judgment. Methadose, a form of methadone, is a synthetic analgesic. It is also used in the detoxification process undergone by heroin addicts. Petitioner has proved by clear and convincing evidence that Respondent engaged in unprofessional conduct in her acquisition of the Oxycontin by using a forged prescription and that Respondent unlawfully possessed a controlled substance. Petitioner has not proved by clear and convincing evidence that Respondent's use of Oxycontin affects her ability to practice nursing with reasonable skill and safety. First, Petitioner did not prove by clear and convincing evidence that Respondent still uses Oxycontin. It appears likely that she may have substituted Methadose for Oxycontin to manage her pain. It is unclear from the present record whether Respondent's use of Methadose is also to assist her in overcoming an addiction to Oxycontin. But even if Petitioner had pleaded Methadose rather than Oxycontin, the record does not reveal the extent to which Respondent presently uses Methadose. For the reasons stated in the preceding paragraph, the relevance of the Methadose is not to prove the third count of the Administrative Complaint, but to underscore the risk that Respondent may pose if she practices nursing at present. Respondent was not candid at the hearing. She was not candid about the October 2001 incident. She was not candid about the recent use of Methadose and was evasive about the drug's properties. The two-hour evaluation that Respondent underwent by a certified addictions professional was cursory and curiously deferential to Respondent. This remarkable evaluation is entitled to absolutely no weight whatsoever. The opinion of the certified addictions professional that Respondent does not suffer from a drug abuse or dependency may or may not be true, but, if true, the result is a chance occurrence, rather than a professional conclusion following the comprehensive collection of relevant, reliable data and the careful, informed analysis of such data. The safeguards provided by the pretrial intervention program, into which Respondent entered after her arrest for the fraudulent acquisition of the Oxycontin, are inadequate. The random drug tests always occur on Tuesdays, just not every Tuesday. The assurances that ensue from Respondent's apparent compliance with the conditions of her probation, which include negative urinalyses, are meaningful, but not sufficiently rigorous to provide the necessary protection to a nurse's patients. On December 26, 2001, Petitioner entered an emergency suspension order in this case. The record amply demonstrates that Respondent will suffer considerable financial distress if denied the opportunity to practice her profession. However, Respondent's lack of candor precludes a detailed analysis of the safeguards in her current monitoring program and a detailed prescription of what, if any, additional safeguards would be required to permit any discipline short of a suspension. In its proposed recommended order, Petitioner seeks a suspension until lifted pursuant to, and subject to the conditions set by, an evaluation coordinated by the Intervention Project for Nurses (IPN); treatment as recommended by the IPN; probation for three years if no treatment is recommended by the IPN; an administrative fine of $750; a reprimand; and the assessment of costs of the investigation and prosecution.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Section 464.018(1)(i), Florida Statutes, and imposing a penalty of a $250 administrative fine, a suspension until lifted pursuant to, and subject to the conditions set by, an evaluation coordinated by the IPN; treatment as recommended by the Intervention Project for Nurses; probation for three years if no treatment is recommended by the Intervention Project for Nurses; and the assessment of costs of the investigation and prosecution, upon remand, if necessary. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of December, 2002. COPIES FURNISHED: Dan Coble, RN PhD CNAA C, BC Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Amy M. Pietrodangelo Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez Suzanne Hope Suarez, P.A. The Legal Building 447 3rd Avenue North, Suite 404 St. Petersburg, Florida 33701-3255
The Issue The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris. During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing 460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States. Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes. Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida. Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported. Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida. Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986. The street value of cocaine in the Miami area in July, 1986 was $35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. COPIES FURNISHED: Douglas Stratton 505 Lincoln Road Miami Beach, Florida 33139 William Watson and Jeffrey Dikman Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Sam D. Alexander Executive Director 102 Carlton Building Tallahassee, Florida 32399-0100 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32399-0100 =================================================================
The Issue The issue is whether the certificate issued to Mr. Ramsey by the Criminal Justice Standards and Training Commission should be revoked for his failure to maintain good moral character through the use of cocaine.
Findings Of Fact Charles Ramsey was issued a certificate on October 2, 1981, by the Criminal Justice Standards and Training Commission, number 19-81-502-01, as a correctional officer. On April 12, 1988, Mr. Ramsey went to the Mount Sinai Medical Center for Industrial Medicine at 4300 Alton Road, Miami Beach, Florida 33140. The overall purpose of the visit was not clear, but as a part of his activities at the Center, Ramsey provided urine specimen for analysis. Before providing the specimen, Ramsey had disrobed, was wearing a hospital gown, and was escorted to a bathroom at the site, where he was given two marked specimen bottles. The first bottle was for the main sample, the second for any overflow if Mr. Ramsey's urine donation was greater than the size of the first bottle. Each bottle was a 60 ml. pharmaceutical round bottle. The specimen bottles had his name on them, a bar code identifying the bottles as bottles from an employee of the Metro-Dade Law Enforcement Department, and the unique specimen number of 117270. At that time, Mr. Ramsey initialed the information on the bottle acknowledging that it was correct. After he exited the bathroom and delivered the urine bottle it was sealed with evidence tape by the technician at Mount Sinai, Sonia Abreu, and was placed in a locked cabinet. The cabinet was opened with a key belonging to the courier for the Toxicology Testing Service of Miami, Florida. The urine was kept under lock and key until it was removed and brought to the screening room at Toxicology Testing Service. The technician there broke the seal and dispensed a sample into an automated clinical analyzer which performed an EMIT screen test on 3 ml. of urine. That test showed the presence of cocaine metabolites, i.e., substances left in the body after cocaine has been ingested and been processed by the metabolic action of the body. Based on this initial positive screening test result, another 3 ml. of the sample was used to perform the screening test again. When the screening test again was positive for cocaine metabolites, a more specific test for the presence of cocaine metabolites was performed by Dr. Terry Hall, who holds his doctorate in chemistry, and has specialized in forensic toxicology. The test was performed using a gas chromatograph and a mass spectrometer. The study showed the presence of methylecganine in the urine, which is a cocaine metabolite. The concentration of the methylecganire in the sample was such that it is likely that Mr. Ramsey used cocaine within the previous two weeks. Exposure to trace amounts of cocaine, such as from airborne cocaine which might be inhaled while measuring cocaine seized as part of a drug arrest, could not have yielded the high level of methylecganine found in Mr. Ramsey's urine. The level of metabolite is such that Mr. Ramsey would have had to ingest approximately 10 grams of cocaine.
Recommendation Based upon the foregoing, it is RECOMMENDED that the certificate held by Charles Ramsey be revoked for failure to maintain good moral character. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Ramsey 1064 Northwest 61st Street Miami, Florida 33127 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission
