The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004 (27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained to the client at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staff person Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004 (27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision-making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parent) in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida, Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7)
The Issue Whether Respondent can practice medicine with reasonable skill and safety to his patients.
Findings Of Fact At all times relevant hereto Raul F. Nodal, Respondent, was licensed by the Florida Board of Medicine as a medical doctor. Dr. Nodal is a board certified neurologist. The Department of Business and Professional Regulation is a state agency charged with enforcing provisions of Chapter 458, Florida Statutes. The history of Respondent's problem with chemicals is noted in Exhibit 4, the medical records of Respondent which was admitted into evidence. However, those records were not properly authenticated and are admissible only as hearsay evidence which corroborates other admissible evidence. Respondent acknowledged that the stress of his brother's apparent murder in 1985 created stresses which he relieved with sedatives and that he developed a dependency on those tranquilizers which progressed to the point where he felt his use was out of control. In the summer of 1990 Respondent found himself taking more and more tranquilizers just to stay calm enough to conduct his practice. A friend referred Respondent to Dr. Krone of the Physician's Recovery Network (PRN) in Tampa, Florida. The PRN is a non-profit association under contract with the Department of Business and Professional Regulation to monitor the progress of Florida physicians admitted to the impaired physicians program for treatment for alcohol or drug dependency and to act as agent for the Department and liaison between the practitioner and the treatment providers. Dr. Krone referred Respondent to the treatment program at South Miami Hospital where Respondent entered and completed the 28 day residence program. Upon completion of the inpatient treatment on 10/18/90 Respondent entered into the first of three Advocacy Contracts in which he agreed, inter alia, to abstain from further use of medications, alcohol or other mood altering substances including over the counter medications unless ordered by his primary care physician; to participate in a random urine drug or blood screen program through PRN; to attend various self-help programs; to provide release forms for urine screen results, treatment center records, therapist reports and other written and verbal information (to comply and in compliance) with the above request; and to withdraw from practice for evaluation at the request of the PRN if any problem develops. Upon his release from South Miami Hospital Respondent was given the name of a doctor as his contact person in Tampa. Because his contact turned out to be a colleague with whom Respondent had worked, Respondent did not feel comfortable sharing his problem with this doctor. Accordingly, he did not do any follow-up care at that point except some meetings he attended on his own. In April, 1991 a friend of Respondent who was being cared for by Respondent in an emergency situation died within hours of a brain hemorrhage. Respondent resumed taking tranquilizers to relieve his stress and a random urine sample taken 5/23/91 tested positive for barbituates. Respondent was then referred to Glenbeigh Hospital in Tampa for an evaluation. He was admitted on 6/03/91 and discharged 6/12/91. Respondent testified he stayed at Glenbeigh close to two weeks. Upon discharge from Glenbeigh he entered an after care program with an addiction counselor in a one on one situation. After a few months his funds ran out and Respondent stopped the program. He continued sporadic attendance at after care groups such as AA and NA. On July 18, 1991 Respondent signed another Advocacy Contract with PRN similar, if not identical, to the contract signed 10/18/90. As the result of a random urine sample which tested positive for barbituates Respondent was requested to enter a long term treatment program. He was admitted at Talbott-March Recovery Program (TMP) in Atlanta, Georgia on December 9, 1991 for evaluation. At TMP Respondent received neuropsychological testing and it was recommended he enter a long range rehabilitation program for three to six months. Respondent testified he could not afford the recommended treatment and he was discharged and returned to Tampa where he was supervised by Dr. David Myers at Health Care Connections. Although Respondent denies taking any drugs other than those noted in findings 9-14 above at any time, competent evidence was presented that a urine sample taken April 1, 1992 tested positively for methaphetamine; on November 3, 1992 a sample tested positive for barbituates; and on March 22, 1993 a sample tested positive for amphetamines and barbituates. Respondent's denial of having used tranquilizers since 1991 despite the positive samples noted in the above finding and of his persistance in disclaiming any present dependency clearly indicates Respondent is in the denial stage of addiction and is failing to face the fact that he has a serious problem. Upon receipt of these 1992-1993 results PRN found Respondent to be not in compliance with the Advocacy Contracts he had signed; and Dr. Roger A. Goetz, Director of the PRN, submitted a complaint to the Department of Professional Regulation alleging that Respondent was unable to practice medicine with a reasonable degree of safety to his patients by reason of his impairment due to chemical dependency. This complaint is predicated on Respondent's failure to comply with the provisions of his Advocacy Contract. Urine samples referred to above were taken and tested in accordance with standard procedures established to insure the integrity of the sample and of the test results. Those reports accurately reflect the presence of illicit drugs found in urine samples provided by and from Respondent. Petitioner's expert witness, Dr. Michael Sheehan, M.D. is board certified in psychiatry and specializes in addiction psychiatry. Dr. Sheehan's opinion that Respondent cannot practice medicine with a reasonable degree of safety to his patients by reason of his impairment due to chemical dependence is based upon the documents contained in Exhibit 4 which is a medical record of Respondent maintained by the PRN from his entry into the impaired physician's program in 1990 until the complaint was submitted by the PRN to the Department. Although Exhibit 4 purports to be the business records of PRN they were not authenticated as such at the hearing. Numerous documents in Exhibit 4, particularly the drug screens, were admitted into evidence by virtue of witnesses testifying to their authenticity. Other documents in Exhibit 4 were corroborated by Respondent's testimony. Thus, those parts of Exhibit 4 which were admitted by other means are sufficient to support the opinion of Dr. Sheehan that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of his chemical dependence; and Dr. Sheehan's opinion that Respondent is in denial of his addiction. Respondent's expert witness, Christie Roberts, holds a Ph.D. in counseling psychology and specializes in addiction therapy. Dr. Roberts administered the Minnesota multifacet personality inventory (MMPI) to Respondent. All of the ten clinical scores assigned to Respondent from the test were in the normal range. On the McAndrews scale, an important scale in determining addiction, Respondent's score was below the established cutoff score indicating addition. Above this cutoff Dr. Roberts usually finds addiction. However, when the McAndrews is below the cutoff, Dr. Roberts acknowledged the possibility that the person tested could have an addiction problem. Petitioner's second expert witness Dennis Brightwell, M.D. has been board certified in psychiatry since 1976 and has treated literally thousands of substance abusers, principally alcoholics. Dr. Brightwell interviewed Respondent for one hour and fifteen minutes and considered the MMPI performed by Dr. Roberts. Dr. Brightwell did not review the medical records of Respondent or administer any other test to Respondent, but based his opinion on the interview and the MMPI. Dr. Brightwell opined Respondent could practice medicine with reasonable skill and safety to patients and did not currently present that he was substance dependent. Based upon the information provided by Respondent Dr. Brightwell further opined that "given the fact that in 1990 he was using it on a regular basis, there is a risk that he could resume that. And I think the appropriate approach to insure that that doesn't happen would be very tight behavioral control to make sure it isn't occurring. Assuming that he is not so sick from substance abuse that he can't make the decision to not use, all he would need is very close monitoring to give him the opportunity, really, to make the decision on a regular basis not to use." Respondent's front office employee who had worked 1 1/2 years for Respondent observed no abnormalities in Respondent's conduct during the time she worked for him. She never saw him self-medicate or appear under the influence of drugs or alcohol. Two medical doctors who have known Respondent both professionally and socially for several years and who testified in these proceedings have never observed Respondent under the influence of drugs or alcohol and consider Respondent to be a capable neurologist. One of these doctors attends a weekly meeting of a group, including Respondent, who study philosophy and discuss the writings of philosophers. This witness deems Respondent an intellectual member of that group.
Recommendation It is recommended that Respondent be found guilty of violation of Section 358.331(1)(s), Florida Statutes and that his license to practice medicine be revoked. It is further recommended that imposition of that discipline be stayed for a period of five years probation under such terms as the board may direct but to require Respondent to remain in the impaired physician's program and submit random urine samples as directed, and that, if any one of those samples tests positive for banned chemicals, the stay be vacated and the license revoked. However, if Respondent successfully completes this five years' probation, the revocation shall be vacated and Respondent's license be restored to good standing. DONE AND ENTERED this 7th day of September, 1993, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3972 Proposed findings submitted by Petitioner are accepted except as noted below. Proposed findings neither noted below nor contained in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. 13. Rejected. This hearsay evidence in Exhibit 4 was not corroborated by admissible evidence. Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached. 4. Rejected. Respondent testified that he felt "more and more tense" for the next several weeks following the death of his friend and he "remembers taking something for sleep or something for, like a tranquilizer during the day." 11. First sentence rejected. Dr. Roberts testified that she virtually never sees a patient who has an elevated McAndrews scale who was not also addicted. 13. Accepted. But see Hearing Officer's Nos. 21 and 22. COPIES FURNISHED: Michael K. Blazicek, Esquire 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Grover C. Freeman, Esquire 201 East Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner Thomasina Barnes should be granted an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes.
Findings Of Fact In January of 1976, Petitioner was caught shoplifting merchandise from a retail clothing store. The police recovered the stolen property in the parking lot where they arrested Petitioner. As a result of that incident, Petitioner pled guilty to a charge of Grand Larceny, a third degree felony on May 5, 1976. On December 14, 1988 Petitioner pled no contest to a misdemeanor charge of Offering for the Purpose of Prostitution. Petitioner was suffering from an addiction to alcohol and/or illegal drugs when she committed the above referenced crimes. After her last arrest in 1988, Petitioner continued to be drug dependent but was able to hold down temporary jobs. She worked as a cook at Popeye’s Restaurant, a mail clerk at Southern Bell, and a data processor for Respondent. Petitioner finally realized she needed help to live a drug free life. She checked herself into a drug detoxification program in March of 1993. After completing the medical detoxification program, Petitioner voluntarily entered a residential drug treatment program where she remained until July of 1993. Petitioner then became a resident of an extended care drug treatment program up through December 7, 1993. When Petitioner completed the residential treatment program, she was actively participating in the Alcoholics Anonymous (AA) and Narcotics Anonymous (NA)twelve step programs. Petitioner lived a drug free life for twenty months after being discharged from the residential drug treatment program. She had one relapse in 1995. However, Petitioner immediately returned to NA treatment and continued working her twelve step program. Petitioner has not abused any substance in two years. She has maintained a close relationship with her NA sponsor during that time. Her involvement with NA activities has progressed over time. She now serves as a sponsor for other members of NA. She is an officer in her NA home group. Petitioner has become an active member of her church. She sings in the choir, serves as choir secretary, leads devotions, and acts as program leader. Petitioner is also active in her community. One activity she particularly enjoys is helping with her nephew’s little league baseball team. Petitioner currently is employed as an intake coordinator/receptionist at the I.M. Salzbacher Center for the Homeless. Sometime prior to August 23, 1996, Petitioner began working a second job in the evenings at Vannie Edwards Foster Group Home as a cook and house cleaner for six disabled male clients. The clients have mental and physical disabilities and are unable to function independently. In addition to her cooking and cleaning duties, Petitioner also served as a companion and mother figure to the clients. She would sometimes stay at the group home overnight but her normal work hours were from 4:00 p.m. to 9:00 p.m. Petitioner considered this position as an additional means to make “living amends.” On or about August 23, 1996, Respondent advised Petitioner that she was disqualified from continuing employment as a caretaker in a developmental services facility such as the Vannie Edwards Foster Group Home. Petitioner filed a request for exemption from disqualification on or about September 5, 1996. Respondent scheduled an Exemption Hearing for September 18, 1996. After the Exemption Hearing, Respondent denied Petitioner’s request for exemption from disqualification by letter dated September 19, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification from employment as a caretaker in a developmental services facility. DONE and ENTERED this 19th day of March, 1997 in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1997. COPIES FURNISHED: Roger L.D. Williams, Esquire Department of Children and Families Post Office Box 2417 Jacksonville, FL 32231-0083 Thomasina Barnes 4818 Foxboro Road Jacksonville, FL 32208 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700 Richard A. Doran, Esquire Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On August 5, 1994, Petitioner was arrested in Dade County on drug charges. Later that same month, she was found guilty of (in Dade County Circuit Court Case No. 94-26435-A), pursuant to a plea of no contest, the "purchase or possession with intent to purchase cocaine, possession of cocaine, and unlawful possession of cannabis as set forth in Counts 4, 5 & 6 of the Information." Adjudication of guilt was withheld. Petitioner was "sentenced [as a first-time offender] to credit for time served: to wit: SIX (6) DAYS as to Counts 4 & 5; and as to Count 6 the entry of [a] sentence [was] suspended." Thereafter, Petitioner voluntarily enrolled in a six- month, outpatient drug treatment program offered by the Family Health Center. While participating in the program, she attended Alcoholics Anonymous (AA) meetings. Petitioner successfully completed the Family Health Center drug treatment program in February of 1996. (She has not participated in any drug treatment program since that time, although she has remained in contact with her counselor who had worked with her at the Family Health Center.) Some time following her successful completion of the Family Health Center drug treatment program, Petitioner began experiencing personal problems and started using illegal substances again as her way of dealing with these problems. She continued to engage in such unlawful conduct until approximately nine months ago, when she had a "spiritual" awakening and came to the realization that "[t]he lifestyle that [she was] liv[ing was] not for [her]." She started attending church on a regular basis and relying upon her religious beliefs, rather than drugs, to weather the difficult periods in her life. Since that time, she has remained drug-free, and it appears that she is fully committed to continuing her abstinence from the use of illegal substances. In or about March of 1999, after passing a drug test, Petitioner was hired by United Cerebral Palsy (UCP) to work as a patient technician serving disabled clients. Petitioner was employed by UCP for approximately six weeks. Her employment was terminated after background screening revealed the findings of guilt that had been entered against her in Dade County Circuit Court Case No. 94-26435-A in August of 1994, which disqualified her from employment by UCP as a patient technician. Petitioner was told that she could reapply for a patient technician position if and when she obtained an exemption from disqualification from the Department. On April 5, 1999, Petitioner submitted such a request to the Department. Petitioner's request was reviewed by a committee composed of three Department employees. Petitioner appeared before the committee on May 6, 1999. She forthrightly told the committee about her post- treatment drug use. Two of the committee members recommended that Petitioner's application for an exemption be granted. The remaining committee member recommended that the application be denied. The matter was then referred to the District 11 Legal Office, which recommended denial of the application. The Acting District 11 Administrator, Sara Herald, followed the Legal Office's recommendation and, by letter dated May 13, 1999, notified Petitioner of her (Ms. Herald's) determination to deny Petitioner's application and of Petitioner's right to "request an administrative hearing" on the matter. Petitioner requested, and subsequently was afforded, such a hearing. Having considered the evidence presented at that hearing, including Petitioner's testimony (particularly that portion of her testimony concerning the lifestyle changes that she has made over the past nine months and the reasons for these changes, which testimony the undersigned finds credible), the undersigned is convinced that Petitioner has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of October, 1999.
Findings Of Fact The Petitioner, Harry M. Katz, M.D., is a medical doctor. His address is P.O. Box 192, Cedar Hill, Missouri 63016. He maintains an active family practice in the area of that location and is licensed by the agency charged with regulating and licensing medical doctors in the State of Missouri ("Missouri Board"). The Petitioner is seeking reinstatement of his medical doctor's license revoked by the Florida Board's Final Order of February 14, 1966. The Respondent is the Board of Medicine of the Department of Business and Professional Regulation located at 1940 North Monroe Street, Tallahassee, Florida. It has denied the Petitioner's reinstatement of his Florida medical doctor's license, which initial agency action resulted in this formal proceeding. The Petitioner falls within that class of physicians whose licenses were revoked prior to June 1994 and under the legal authority cited herein, are entitled to petition for reinstatement. In order to have his license reinstated, the Petitioner must demonstrate that he is capable of practicing medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). On February 14, 1966, the State Board of Medical Examiners revoked the Petitioner's medical license for aiding, assisting and promoting an unlicensed physician to practice medicine and surgery at his hospital and by apparently failing to correctly perform physical examinations upon pilots for the Federal Aviation Administration (FAA), although he certified them as physically fit. The Petitioner had employed a physician (surgeon) to practice at his hospital in Clearwater, Florida, including the performance of surgery. Sometime later, while that physician was in his employ, the Petitioner learned that his license had been either revoked or suspended. The Petitioner states that he promptly contacted the State Board of Medical Examiners to ascertain what his responsibility was in terms of employing such a physician, who was unlicensed, without the Petitioner's knowledge. The Petitioner states that he was informed by the Executive Director of the Medical Board that, in effect, he was not liable or subject to enforcement action by the Board for unknowingly allowing the unlicensed physician to practice under the circumstances described in the Petitioner's testimony in this case. Nevertheless, the Petitioner was ultimately prosecuted by the Medical Board for this activity, some of which occurred soon after he became aware of the doctor's license suspension, and also for allegedly certifying pilots as physically fit to the FAA when he had not actually done complete physical examinations. The Petitioner maintains that, indeed, he did do physical examinations on the four pilots, but testified that he did not do prostate examinations because it was not medically necessary, with pilots of such a young age to do such examinations. The Board found that he could not have done adequate physicals if the pilots were not required to disrobe. In any event, his medical license was revoked, which he freely admits. Sometime in 1972, the Petitioner was prosecuted on a federal indictment, concerning charges in the nature of "medicare fraud". In essence, the Petitioner was charged with billing the medicare system for doctor/patient visits, for patients in his hospital, for each day the patients resided in his hospital, which apparently did not conform to medicare regulations. The Petitioner maintains that, indeed, he made the visits he billed for and believed that he was billing correctly for them. Nonetheless, he acknowledges that he was convicted and sentenced to two years in the federal prison facility at Eglin Air Force Base for those charges. Shortly after his confinement, the sentence was reduced to one year. The Petitioner appealed both the state license revocation and the federal criminal conviction, but both were upheld on appeal. The Petitioner testified concerning circumstances surrounding his federal trial involving purported inappropriate, ineffective and possible failure by the prosecution to reveal potential exculpatory evidence representation by his counsel, the effect of which he was unable to overturn in the appellate process. Be that as it may, as the Petitioner concedes, he did have his medical doctor's license revoked in 1966 and suffered a federal conviction in 1972. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action, and his Alabama license was voluntarily surrendered on the same basis. His application for licensure in South Dakota was denied based, in effect, upon the Florida disciplinary action, and his application for a State of Louisiana medical license was denied, as to full licensure, on the same basis. The State of Louisiana, however, did grant him a conditional license to practice medicine, which authorized him to practice as an employed physician at the Louisiana State Penitentiary at Angola. He served in that capacity and was promoted to medical director of the facility, providing medical care for some 4,000 inmates. Additionally, the Petitioner applied for licensure with the Kansas Board of Healing Arts, but elected not to pursue that licensure. The application was deemed withdrawn. The various state medical licensing boards revoked the Petitioner's pre-existing licensure or denied his applications for licensure based upon the Florida disciplinary action. Those other state boards took the position that he had to cure the licensure deficiency in Florida before he could be licensed in the other states. Those licensure actions were not based upon any independent disciplinary prosecutions in those states. The Petitioner practiced as a physician III and physician IV in the Louisiana Department of Corrections at the penitentiary at Angola from sometime in 1973 until 1981. He became medical director of that facility. He performed a competent and honorable medical practice at that facility, as shown by unrefuted testimony in this proceeding and by the testimonial letters stipulated into evidence. The Petitioner is currently licensed to practice medicine in the State of Missouri, where he has conducted a family practice since 1981. During his tenure in practice in Missouri, he had four malpractice suits filed against him. The first suit was settled for the sum of $1,200.00. The second and third suits were dismissed. The fourth suit resulted in a verdict in his favor. The verdict was later set aside, but the case was settled for the sum of $15,000.00. One of the malpractice suits resulted in the State Board of Registration for the Healing Arts in Missouri inquiring into his practice in that instance. His licensure status was not disciplined, but the Missouri Board required him to take the SPEX examination administered by the Federation of State Medical Boards. He took that examination and passed it with a score of 81. The Petitioner is held in high esteem by his colleagues in the medical profession in Missouri, as shown by the testimonial letters in evidence and by a certificate of appreciation he was awarded by the St. Louis University Medical Center for his support and medical practice in conjunction with the St. Louis University Hospital's clinical services and teaching mission in conjunction with its operations as a teaching hospital. He has referred numerous patients to that facility and has received favorable comment on his evaluation, treatment of patients, and the good standards with which he has conducted his practice. The Petitioner is licensed to prescribe narcotics without restriction. He is current with all of the required continuing medical education requirements and exceeds those requirements. He held a certificate of membership in good standing with the American Medical Association at least through July 1, 1993. He is a participant in good standing in the Medicare and Medicaid programs in the State of Missouri. He holds a valid certificate from the United States Department of Health and Human Services for clinical laboratory services. He is a participating physician in good standing with the Medicare and Medicaid programs and with the Blue Cross/Blue Shield program and is approved by the United States Department of Transportation to perform its required physicals. During his tenure in Louisiana, he was a member in good standing in the Louisiana State Medical Society from approximately 1976 to 1980 and an officer of that association. He is a member in good standing of the American Medical Association as an AMA senior physician, the Southern Medical Association, since about 1982, and the American Correctional Association. Additionally, he has been board certified in the field of family practice by the American Board of Family Practice since 1976, in good standing. The Petitioner has labored with a commendable dedication to good medical practice in amassing the above-found credits to his medical practice since suffering the above-referenced blemishes on his professional record so long ago, culminating in his demonstration to the Missouri State Board of his ability to safely engage in the practice of medicine by passing the SPEX examination with a high score. He has demonstrated that he is capable of and has practiced medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). The testimony of Georgia Leigh Katz, the Petitioner's daughter, speaks eloquently to the high level of character demonstrated by the Petitioner's single-minded dedication to his medical practice, even under his diminished professional standing for over 20 years. That demonstration of the perseverance and character with which he has approached his practice of medicine, under professionally and legally straitened circumstances during that time, certainly militates in favor of finding him rehabilitated from his prior disciplinary blemishes. Ms. Katz' testimony was unrefuted and is adopted herein by reference as true. She thus established that, although not the fault of the medical board nor the federal court, the Petitioner's disciplinary action in Florida and the federal court conviction effectively destroyed his family. Shortly thereafter, he and his wife were divorced; and he, for much of the ensuing, approximate quarter century, has had to live apart from his children, in a distant state, while attempting, with his licensure impairment, to earn a relatively meager living and to support his family. He has made herculian efforts to support his family and himself with his medical practice, which could not reach its full potential because of the blemishes upon his professional record. Ms. Katz' testimony demonstrated, in a truly heart-rending way, the effect which this has had upon the Petitioner, his children and his former wife, their mother, in terms of the lack of financial security these circumstances imposed and, more importantly, the emotional hardship caused to the Petitioner and his family. The Petitioner's dedication to his profession under these debilitating circumstances for these long years certainly demonstrates a rehabilitation of character in the Petitioner. This rehabilitation, coupled with the showing that he is competent and capable of practicing medicine with reasonable skill and safety, shows that his new licensure in Florida would pose no risk to its citizens but rather would be a benefit to them. Counsel for the Board apparently avers that the Petitioner unrealistically claims that the Florida Board of Medicine, and its counterparts in other states, are engaged in some covert conspiracy to continue to deny him licensure, to impair his professional standing and medical practice. Questions by counsel, however, as well as those by the Hearing Officer, reveal that, although it is granted that the Petitioner has a great deal of emotional investment and anguish resulting from his multiple bouts with his licensure restrictions, that he really intended to explain in his testimony, in an imperfect way, that his licensure problems in the other states are interrelated with the root disciplinary action in Florida and that the Florida disciplinary action and the federal conviction, has had a legally operative effect with the medical practice acts in the other named states which cannot be cured until his licensure status in Florida can be restored. The Hearing Officer does not find from the testimony and evidence that the Petitioner has an unrealistic thought process leading to a perception on his part that there is a real conspiracy between the medical boards of the various named states or any of their personnel. The Respondent also appears to take the position that the Petitioner cannot truly demonstrate rehabilitation unless he comes before the Board to express apology and contrition for his past conduct, and it decries his remonstrances concerning his disciplinary record. In fact, however, the Petitioner does not deny the past disciplinary actions, although he did seek to explain their circumstances in an exculpatory way. On one level, it might seem a valid criticism that the Petitioner expresses no contrition or apology for his past conduct. On the other hand, he appears to genuinely believe in his innocence or at least his lack of moral turpitude concerning his disciplinary circumstances. This genuine belief on his part has motivated him to resist expressions of apology to the Florida Board, while exercising every available remedy to overturn the disciplinary action. This fact supports an inference that he is a man who has adhered to genuinely- held convictions, even through years of professional and personal adversity such a stand may have imposed upon him; rather than to "kowtow" to expediency and, by humble contrition, surrender those convictions simply to facilitate his re-entry into a lucrative profession in Florida. Given the preponderant evidence adduced by the Petitioner in this proceeding, such a lack of expressed apology or contrition evinces more of strong character than a lack of rehabilitation. In any event, the Petitioner has certainly already suffered sufficiently for any such lack of contrition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor, demeanor and credibility of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the license to practice medicine in the State of Florida of Harry Meyer Katz, M.D., be reinstated. DONE AND ENTERED this 28th day of June, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2797 Petitioner's Proposed Findings of Fact 1-25. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. 16-18. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely consonant with the preponderance evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not itself dispositive of the material issues presented. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Michael A. Mone, Esquire Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue This case was presented upon an administrative complaint filed by the Florida State Board of Nursing against Jill Corneal. This administrative complaint was amended prior to the commencement of the hearing and the Respondent waived notice to the amended ,administrative complaint. The amendment of the administrative complaint is as follows: Paragraph one of the administrative complaint is amended by deletion of the period and the addition of the language "by virtue of authorized medical treatment on or before October, 1977 and continuing through December, 1977." Paragraph four of the administrative complaint is amended by the addition of the words "lawfully prescribed" preceding the word "drugs" in the fifth line of the paragraph. Paragraph five of the administrative complaint is deleted. The Respondent subsequently entered her admission to amended paragraph one, paragraph two, paragraph three, and amended paragraph four. Based upon the admissions, the Petitioner presented no evidence in support of the administrative complaint and the Respondent presented several letters into evidence to which the Petitioner had not objection. Based upon the admissions to the amended complaint, the only issue remaining to be considered is the question of penalty, if any to be assessed against the Respondent for violation of Section 464.21 (1)(b) and (c), Florida Statutes.
Findings Of Fact Jill Corneal is a registered nurse holding license no. 868042 issued by the Florida State Board of Nursing. Jill Corneal, because of reoccurring headaches, habitually and excessively used and became addicted to the use of Demerol (Meperedine), a controlled substance under the Florida Statutes, Section 893, and other controlled substances, by virtue of authorized medical treatment on or before October, 1977 and continuing through December, 1977. On or about February 2, 1978, Jill Corneal was admitted to a drug abuse program in Tampa, Florida, for her drug addiction problem and as of March 15, 1978, was still in the program. On or about March 20, 1978, Jill Corneal voluntarily surrendered her original Certificate of Licensure and Renewal Certificate for the current year to practice nursing in this State of Florida to Mary L. Willis, R.N., of the Florida State Board of Nursing. On numerous occasions, from approximately October 19, 1977 through December 1977, while employed as a registered nurse at Centro Espanol Memorial Hospital, Tampa, Florida, Jill Corneal reported for duty and continued to work when in fact, she was apparently under the influence of lawfully prescribed drugs to the extent that she was rendered incapable of carrying out her normal duties as a professional nurse. The Respondent introduced into evidence a letter from her treating psychiatrist (Exhibit 1) and letters from other physicians with whom she had worked (Exhibit 2). These exhibits indicate that Jill Corneal is a very skilled nurse who is currently undergoing treatment for a drug addiction and who, in the opinion of her psychiatrist is capable of overcoming that addiction. Exhibit 1 further indicates that Corneal has no objection and would participate in any drug screening program as a condition to continuing to practice her profession.
Recommendation Based upon the foregoing findings of fact and conclusions of law the Hearing Officer recommends to the Florida State Board of Nursing that the license of Jill Corneal be suspended until a qualified psychiatrist advises the State Board in writing that she is capable of resuming her duties as a professional registered nurse. DONE AND ORDERED this 19th day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Charles Thomson, Esquire 503 South Willow Avenue Tampa, Florida 33606 Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator Board of Nursing 6501 Arlington Expressway, Building B Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Jill Corneal Garner As a Registered Nurse Case No. 78-764 3101 West Hillsborough License Number 86804-2 118 Britt Tampa, Florida 33614 /
Recommendation As stated above, the only issue remaining is mitigation. The only evidence of record is the late filed letters of character recommendation which were filed late by agreement of the parties. Based on the foregoing findings of fact, conclusions of law and considering the matters in litigation, the Hearing Officer would recommend that the Board suspend the license of Lonnie Collins for twenty-four months and suspend enforcement of the last eighteen months of that twenty-four months suspension on the following conditions: Collins satisfactorily participate in the drug rehabilitation program for the duration of the Board's probation. Collins be restricted from having any responsibility for controlled drugs. Collins be subject to any physical examinations or tests the Board might at any time order. Collins be required to have his employer notify the Board of his employment, his disclosure to the employer of his probations, of the limitation imposed by the employer on Collins' responsibility for narcotics. Violation by Collins of a condition of his probation may in the Board's discretion result in the immediate imposition of the remaining portion of the suspension or further prosecution under 464 to revoke his license. Should Collins' license be revoked, the Florida State Board of Nursing would not consider his application for reinstatement of his license or reexamination for licensure until the remaining portion of his suspension has run. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Robert W. Pope, Esquire 611 First Avenue North St. Petersburg, Florida 33701 =================================================================
The Issue The issue is whether Petitioner may terminate Respondent's employment as a teacher.
Findings Of Fact Respondent has been a teacher since 1993. She is a 34- year-old divorced mother of a four-year-old son. Respondent has suffered from a chemical dependency since she was 18 years old. At that time, she completed a 28- day detoxification program at Mt. Sinai Medical Center in Miami. Six or seven years later, Respondent underwent additional inpatient treatment for her addiction to drugs. She submitted to a third detoxification, lasting five to seven days, in 1993 or 1994. Respondent underwent a fourth detoxification ten months later and, in 1996, a fifth detoxification. Respondent admits that she has undergone detoxification several more times since 1996. These detoxifications and Respondent's intermittent participation in Narcotics Anonymous were parts of treatment programs attempting to relieve Respondent from her addiction to cocaine and heroin. Respondent's addiction has spanned her college years through her entire teaching career. The effects of Respondent's illness have, at times, precluded her from reaching her full potential as a classroom teacher. After a brief period of employment by Petitioner as a permanent substitute teacher, Respondent began fulltime employment with Petitioner in August 1994 as a teacher at Oak Grove Elementary School. While at Oak Grove, Respondent was a satisfactory teacher, although her attendance was less than satisfactory. Also, on at least six occasions, evidently starting in her second year, Respondent fell asleep while conducting a reading tutorial session in which the students spent 20 minutes in separate cubicles. Respondent's principal at Oak Grove documented by a memorandum dated December 4, 1995, eleven full-day absences and two half-day absences during the 1995-96 school year and two instances of sleeping while charged with the instruction of a student--both on the same day and both discovered by the principal. Due to these incidents and an earlier incident of sleeping while on duty, the principal administratively referred Respondent to Petitioner's Employee Assistance Program (EAP). The December 4 memorandum documented the actions taken at a conference held the same date involving, among others, Respondent and the principal. Respondent then missed work on December 6 and 7--calling in at 10:06 a.m. on December 7 saying that she had overslept and asking if it was too late to report to work. Respondent missed a considerable amount of work during the 1996-97 school year. Some of the absences, especially from early December through early February, were due to Respondent's chemical dependency. However, some absences, especially during the latter part of the school year, may be attributed to the birth of Respondent's child on July 9, 1997, following a high- risk pregnancy. The record does not disclose much about the 1997-98 school year. However, Respondent missed ten days of work due to sick or personal leave and eleven days of work due to unpaid, but authorized, leave. The absence of additional administrative action against Respondent suggests that she may have improved her attendance and eliminated her sleeping while on duty. For the 1998-99 school year, Respondent transferred to a new school, Linda Lentin Elementary School. Again, Respondent was a satisfactory teacher, except for absenteeism. However, during a nine-day absence from May 20 through June 2, 1999, the principal received a telephone call from someone claiming that Respondent had had a breakdown and was in a "drug rehabilitation hospital." Accordingly, the principal requested that Petitioner's Office of Professional Standards (OPS) monitor Respondent's return to work. On June 8, 1999, Respondent, the principal, Petitioner's OPS Director, and others participated in a Conference for the Record (CFR). Respondent attributed her 21 absences in the 1997-98 school year, as well as 20.5 absences in the 1998-99 school year, to six miscarriages and depression. Petitioner's OPS Director explained the procedures for reasonable-suspicion drug testing. The CFR memorandum concludes by emphasizing that Respondent must report to work when scheduled and on time, obtain medical excuses for all absences, provide lesson plans for substitute teachers, and obtain approval for scheduled leave. At the same time, Petitioner's OPS Director referred Respondent to Petitioner's EAP. Subject to these actions, Petitioner approved Respondent's return to the classroom. However, Respondent's attendance did not improve the following school year, and her behavior became somewhat eccentric early in the school year. At noon on September 27, 1999, Respondent told the principal that she was ill and needed to go home for the remainder of the day and the following day. Respondent went home, but, despite requesting leave and a substitute for the following day, returned to work the following day without calling first. Near the end of the school day, while her students were in a special-area class, Respondent signed out of school and walked down the street, despite the fact that it was raining. The next day, Respondent left the school grounds without permission and, the following day, failed to attend a mandatory teachers' meeting. The situation deteriorated in mid-October 1999. From October 11-14, Respondent telephoned the school each day and reported that she was sick and in the hospital. The following Monday, October 18, Respondent reported to work. However, on October 19, Respondent failed to report to work or call, leaving her class sitting in the hallway. Respondent telephoned the school at mid-day and stated that she had been in a five-car accident. This accident did not take place. On October 20, while driving to school, Respondent was involved in a two-car accident, which resulted in her striking a fire hydrant not far from the school. The accident took place at about 8:45 a.m., which was about 15 minutes after Respondent assumed direct supervision of her students. Respondent arrived at school late, crying and disconcerted. An acquaintance transported Respondent home. The next morning, prior to the start of school, Respondent called the school and stated that she would not be at work. On the following morning, October 22, Respondent reported to work, and her principal ordered her to submit to a reasonable-suspicion drug test. Respondent complied, and the drug test revealed the presence of cocaine and morphine. The drug test accurately detected the presence of these substances because Respondent had used crack cocaine and heroin within the period for which the drug test is sensitive. By memorandum dated October 29, 1999, Respondent's principal asked Petitioner's OPS to monitor Respondent's return to work. By memorandum dated November 1, 1999, Petitioner's OPS informed Respondent that she would require a clearance from OPS before returning to work. On November 8, 1999, Respondent requested a leave of absence without pay to extend from October 22, 1999, through June 16, 2000. Petitioner granted this request. Shortly after starting her leave from work, Respondent was first seen by Dr. John Eustace. Dr. Eustace is Board-certified in internal medicine and is also certified in the treatment of addictions. He is the medical director of the Addiction Treatment Program at Mt. Sinai Medical Center. He is also an assistant professor of psychiatry at the University of Miami medical school. In the last ten years, Dr. Eustace has performed 2000 evaluations of professionals to assess whether they can return to practice with the requisite skill and safety. During his career, Dr. Eustace has diagnosed and treated over 10,000 patients for addictions. Dr. Eustace admitted Respondent as an in-patient at Mt. Sinai for, among other things, a four- or five-day detoxification program. He found that Respondent was in the late middle stage of addiction to heroin and cocaine and that her illness was active. When releasing Respondent from the detoxification program, Dr. Eustace recommended that Respondent enter a twelve- step program to better prepare Respondent for the difficult recovery process, which requires, among other things, gaining insight into the consequences of the addiction. Following the detoxification process, Dr. Eustace opined that Respondent had an even chance of avoiding another relapse. However, this prognosis improves with time. After the first five years without relapse, the relapse rate is only ten percent. Also, after a second treatment, the recovery rate is over 90 percent. Of the 2000 professionals whom Dr. Eustace has treated, over 90 percent have recovered. Unfortunately, Respondent relapsed after her 1999 detoxification and treatment by Dr. Eustace. Despite her return to active use of illegal drugs, Respondent chose to restart the process by which she could return to the classroom. Petitioner's OPS informed Respondent that she would need OPS clearance before returning to work. Reacting to Respondent's request for a clearance, OPS scheduled a CFR with Respondent and others to take place on July 28, 2000. At the July 28 CFR, Respondent signed an Employee Acknowledgement Form concerning Petitioner's drug-free workplace policy. The form states: "Before returning to duty, I must undergo a return-to-duty . . . controlled substances test with verified negative results." At the CFR, Respondent admitted that she had had a chemical dependency, but represented that she was now clean and sober. Apparently, Respondent did not anticipate that she would be required to take a drug test at the July 28 CFR. However, with the new school year imminent, it is difficult to understand exactly when Respondent thought she would be required to take the drug test. If she were going to teach the next school year, her principal needed more than a few days' notice. In any event, Respondent took the test on July 28, and the test revealed the presence of morphine, although not cocaine. By memorandum dated September 6, 2000, from Petitioner's OPS Director to Respondent, Petitioner advised Respondent that it was reviewing its options after receiving the results of the July 28 drug test. By letter dated October 6, 2000, to Respondent, Petitioner's Superintendent advised Respondent that Petitioner was suspending her and initiating dismissal proceedings due to just cause, including incompetency, misconduct in office, gross insubordination, excessive absences, and violation of Petitioner's Rules 6Gx13-4-105 (drug-free workplace) and 6Gx13-4A-1.21 (responsibilities and duties). By letter dated October 12, 2000, and revised October 17, 2000, Petitioner's board took the action recommended by the Superintendent. The contract between Petitioner and the United Teachers of Dade (Contract) provides in Article XXI, Section 1.B.1.a, that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Article XXI, Section 2.G, sets forth the Drug-Free Workplace General Policy Statement. Section 2.G.b provides the policy statement on illegal drugs, Section 2.G.c provides the policy statement on alcohol and prescription drugs, and Section 2.G.d provides the policy statement on employee drug screening. Under employee drug screening, Section 2.G.d.5 states: [Petitioner] recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of [Petitioner], where possible, to seek rehabilitation of employees with a self- admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to Board Policy, applicable Florida Statutes, State Board Rules, and applicable provisions of collective bargaining agreements. Petitioner has invoked two of its rules in this case. Rule 6Gx13-4A-1.21, which is a statement of "Responsibilities and Duties," requires, at Section 1, all employees "to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system." It is unnecessary to determine whether the Contract incorporates this rule, or whether Petitioner may otherwise rely on this rule to dismiss an instructional employee during the school year. Rule 6Gx13-4-1.05 (Rule), which is the "Drug-Free Workplace General Policy Statement," is a restatement of the Drug-Free Workplace General Policy Statement contained in the Contract. The prominent role of the Drug-Free Workplace General Policy Statement in the Contract, as well as its provision for the dismissal of employees, justifies Petitioner’s reliance upon a violation of the Rule as a basis for dismissing an instructional employee during the school year, notwithstanding the provision of the Contract otherwise requiring that all such dismissals be based on violations of Florida Statutes. In most respects, the Drug-Free Workplace General Policy Statement is the same in the Rule and the Contract. The Rule provides for "disciplinary sanctions" against employees who have violated the "standards of conduct" set forth within the Rule. Like the Contract, the Rule contains three "policy statements," which supply most of the operative provisions of the Rule. For illegal drugs, the policy statement, as set forth in the Rule, provides: "Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs, nor will they be under the influence of such drugs. Employees on or off duty will not influence students to use illegal or abuse legal drugs. An employee convicted, adjudicated guilty, or who has entered a plea of guilty for an criminal drug statute violation occurring in the workplace shall notify [Petitioner] within 48 hours after final judgment. Paragraphs A and C are limited to acts and conditions that take place while an employee is on Petitioner's property or on duty. Paragraph B is limited to acts of the employee directed toward students. The evidence does not suggest that Respondent violated any of these provisions of the Rule. Petitioner failed to serve that the incidents involving Respondent sleeping while in charge of students appear not to have been due to her cocaine or heroin intoxication; it is at least as likely that the sleeping resulted from fatigue following the use of one or both of these drugs the preceding night. The distinction between intoxicating levels of these drugs and nonintoxicating trace amounts is explicitly dismissed by the Rule's treatment of alcohol, as to which employees must be "free of measurable . . . concentrations." After the policy statements on illegal drugs and alcohol and prescription drugs, the Rule sets forth the policy statement on employee drug screening. Although this part of the Rule fails to provide explicitly that a positive drug screen is a violation of the Rule, the introductory paragraph of the Rule acknowledges that Petitioner and the United Teachers of Dade are jointly committed "to create and maintain a drug-free work environment." Paragraph D within the drug-screening policy statement restates this purpose. Also, the disciplinary sanctions provided by the Rule clearly state that a refusal to submit to a drug test or a second violation of the Rule constitutes an inability to be assisted by rehabilitation; if a refusal to submit to a drug test is a violation, a failed drug test must also be a violation. These statements are therefore sufficient to provide that the presence in employees of even nonintoxicating amounts of illegal drugs, while on duty, constitute a violation of the Rule. In two respects, the Drug-Free Workplace General Policy Statement, as described in the Rule, is materially different from the Drug-Free Workplace General Policy Statement, as described in the Contract. First, the Rule adds another objective: To communicate that persons who violate the standards of conduct cited in this rule and who refuse or cannot be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. Second, the Rule provides disciplinary sanctions for any violation--not just for violations of the drug-screening policy statement, as provided by the Contract--of the Drug-Free Workplace General Policy Statement. The Rule also adds two presumptive conditions for determining when an employee is unable to be assisted by rehabilitation. The Rule states: Employees who violate the standards of conduct cited it this rule and who the Board determines will not be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. A refusal to submit to a drug test or a second violation of the Drug-Free Workplace Policy shall constitute an inability to be assisted by rehabilitation. . . . This case turns on whether Petitioner has proved that Respondent would not be assisted by rehabilitation because Petitioner has produced little detailed evidence of any negative impact upon Respondent's students. The record lacks detail of Respondent's specific teaching duties, the specific impact of her sleeping incidents or absences, and the academic achievements of her students during the periods in which these shortcomings took place. Notwithstanding the marked shortcomings in Respondent's performance as a teacher, Petitioner did not dismiss her until first giving her a chance to rehabilitate herself. The most likely inference is that Petitioner's administrative employees found that the situation did not satisfy the first criterion for dismissal--negatively impacting students. The basic issue, then, is whether Petitioner could reasonably have determined, from July to October 2000, that Respondent would not be assisted by rehabilitation. Petitioner could choose to show rehabilitation would be futile by relying on one of the two presumptions contained in the Rule. However, Respondent never refused to submit to a drug test, and difficult questions of her employment status in July 2000 obscure the determination as to whether her failure of the July 2000 drug test constitutes a second violation of the Rule. In this case, though, Petitioner may satisfy its standard of proof without regard to either of the presumptions in the Rule. After a display of considerable patience and good faith by Petitioner, Respondent, in July 2000, misrepresented to Petitioner that she was clean and sober and prematurely requested permission to return to teaching duties despite her knowledge that she was still abusing drugs and not ready to return to the classroom. These facts support the finding that, as of July or October 2000, Respondent would not be assisted by rehabilitation. This finding of the futility of rehabilitation, as of July or October 2000, is difficult due to the fact that subsequent events suggest that Respondent may finally be rehabilitating herself. After Petitioner dismissed her, Respondent underwent detoxification and then began treatment at St. Luke's Addiction Recovery Center, which is sponsored by Catholic Charities of the Archdiocese of Miami, Inc. She was in intensive residential treatment from November 6, 2000, through January 24, 2001. She later underwent nine urinalyses, through June 1, 2001--a day after the end of the hearing in this case-- and all of them were negative. Respondent is successfully participating in the St. Luke's aftercare program, where she takes weekly drug tests. She is proud of the fact that she has turned her life over to God and has achieved the longest period of sobriety that she has experienced in many years. After regaining sobriety, Respondent substituted for awhile and then found a job teaching a third-grade class at a private school in the Miami area. At the time of the hearing, Respondent had been so employed for six weeks, she had not been late or missed a day of school, and the school had invited her to teach again for the 2001-02 school year. Dr. Eustace opines that Respondent's prognosis is much improved from the prognosis of September 2000.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 5th day of November, 2001, 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 5th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 N. E. Second Avenue Room 912 Miami, Florida 33132-1308 Luis M. Garcia Attorney's Office School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Richard Baron Baron and Cliff 11077 Biscayne Boulevard, Suite 307 Miami, Florida 33161 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact 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. Caren Hicks worked as a unit coordinator in the cardiovascular surgery unit of the hospital where Respondent was also employed as a registered nurse. 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. 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. 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. 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". 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. 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. Later, Smith made the same offer to Hicks. Hicks accepted the offer, attended a drug rehabilitation program and is still employed at the hospital. 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. 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. 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. Use of crank would have a negative effect on a medical nurse's judgement and performance.
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
