The Issue Whether one or more of the following penalties should be imposed on Elizabeth Worden: revocation or suspension of the Ms. Worden's practice, imposition of an administrative fine, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact Elizabeth Worden is, and has been at all times material hereto, a licensed practical nurse in the State of Florida. Ms. Worden holds State of Florida license number 0739611. Her license lapsed on April 1, 1987, and remained lapsed at least through September 20, 1988. On September 11, 1985, Ms. Worden was arrested and charged with one count of driving under the influence (hereinafter referred to as "DUI") and five counts of possession of controlled substance. On February 24, 1986, Ms. Worden was found guilty of DUI. Additionally, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered based upon a plea of nolo contendere by Ms. Worden to the five counts of possession of controlled substance. Ms. Worden was placed on three years probation for the charge of possession of controlled substance and was placed on a year of probation (to run concurrently with the sentence for possession of controlled substance), ordered to pay a fine, perform community service and had her drivers license suspended for six months for the charge of DUI. During at least part of 1986 and 1987, Ms. Worden was employed as a licensed practical nurse at the Ocala Geriatrics Center (hereinafter referred to as the "Center"). Ms. Worden was one of three licensed practical nurses at the facility during the 11:00 p.m. to 7:00 a.m. shift and was in charge of the patients on one floor of the facility. While on duty at the Center Ms. Worden retired to room 5 in the east wing of the Center almost every night to sleep. She generally went to the room at about 2:00 a.m. and remained in the room until approximately 6:00 a.m. While Ms. Worden slept, she left the certified nurses aides in charge of patient care and assigned duties to the aides which should have been conducted by a licensed nurse. Ms. Worden told the aides to wake her only if a patient needed medication, if another nurse appeared on her floor, and at 6:00 a.m. On three occasions Ms. Worden left the Center while she should have been on duty, leaving certified nurses aides in charge of patient care. On these occasions Ms. Worden was gone from fifteen to thirty minutes carrying out personal errands. Ms. Worden admitted on one occasion to a certified nurses aide that she had consumed a couple of beers before coming to work. Ms. Worden's breath often smelled of alcohol and the room in which she slept also smelled of beer on occasion. During 1987, Ms. Worden entered the Intervention Project for Nurses. She was dismissed from the program in August, 1987, for noncompliance with the program's requirements. On May 18, 1987, Ms. Worden was arrested and charged with DUI and resisting arrest without violence. She was adjudicated guilty of both offenses on July 13, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Elizabeth Worden be found guilty of having violated Sections 464.018(1)(c) and (g), Florida Statutes, as alleged in Count One and Count Three of the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Worden is guilty of having violated Sections 464.018(1)(f) and (h), Florida Statutes, as alleged in the second Count One and Count Three of the Administrative Complaint be dismissed. It is further RECOMMENDED that Ms. Worden's license as a practical nurse be suspended until the later of the end of a five (5) year period from the date of the final order issued in this case or the date that Ms. Worden provides proof acceptable to the Petitioner of her successful completion of a rehabilitation program acceptable to the Petitioner. DONE and ENTERED this 18th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2548 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3-4 2. 5 3-4. 6 5. 7 7. 8 9. 9 10. 10 10-11. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth Worden 412-A Clark Street St. Charles, Missouri 63301 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter Executive Director Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
The Issue The Administrative Complaint in Case No. 90-7826 alleges violations of Chapter 464, Florida Statutes, governing the professional practice of nursing, when Respondent is alleged to have left a medication vial, syringe and needle in a place accessible to patients, in an alcohol and drug detoxification facility in Cocoa Beach, Florida. The Administrative Complaint in Case No. 91-7581 alleges that Respondent is unable to practice nursing with reasonable skill and safety to patients, by reason of illness, or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition, as provided in Section 464.018(1)(j), Florida Statutes. The issues initially submitted for disposition were whether those allegations are true, and if so, what discipline or action regarding Respondent's license should be taken. As discussed below, the parties have resolved the issues with a stipulation.
Findings Of Fact The following constitute the parties' stipulated findings of fact. Ms. Beecher is a licensed nurse in the State of Florida, holding license number RN 1238832 and, therefore, is subject to the jurisdiction of the Department and the Board of Nursing. Ms. Beecher was placed on probation for a period of one year as a result of disciplinary action filed in Department of Professional Regulation Case No. 90740. A term of the probation was that Ms. Beecher obtain and continue in counseling for the term of the probation, and thereafter until discharged. During the probationary period, Ms. Beecher received counseling from Marianne Jones, R.N., L.C.S.W., C.A.P. Ms. Beecher caused Ms. Jones to submit a probation report to the Board of Nursing in August 1990. Ms. Jones indicated that Ms. Beecher was not capable of safely engaging in the practice of nursing because of Ms. Beecher's mental illness and her lack of cooperation with her treatment program. Ms. Beecher appeared at the Board of Nursing meeting on October 12, 1990, at which time the Board members and staff were concerned about her erratic and irrational behavior. Ms. Beecher was examined in or around August and September, 1991 by Dr. Burton Podnos, M.D., a psychiatrist, who opined that Ms. Beecher was schizophrenic and, therefore, that she was not capable of safely engaging in the practice of nursing.
Recommendation Based on the foregoing, the parties have stipulated to the following recommended disposition: that a final order be entered suspending the nursing license of Linda Krasnay Beecher until such time as she is able to demonstrate that she is capable of safely engaging in the practice of nursing, and requiring that she enroll in the Intervention Program for Nurses (IPN) and complete their program for mentally impaired nurses. The final order should also reflect dismissal of the complaint in Case No. 90-7826. DONE and ENTERED this 4th day of March, 1992, in Tallahassee, Florida. MARY W. CLARK 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 4th day of March, 1992. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Lois Lepp, Esquire Department of Professional Regulation 1940 N Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David Young, Esquire 1227 S. Florida Avenue Rockledge, Florida 32955
Findings Of Fact On March 27, 1979, at 3:30 or 4:00 o'clock in the afternoon, respondent entered Ashton Pharmacy in Kissimmee, Florida, and asked Keith W. Lawhorne, the pharmacist on duty, to fill a prescription for 40 tablets of Demerol 50 mg. The prescription was on a Community Hospital form, purportedly signed by A. N. Feir, M.D. Mr. Lawhorne filled the prescription and respondent left with the pills. Later, Mr. Lawhorne telephoned Dr. Feir who said he had not prescribed anything for respondent. Mr. Lawhorne then telephoned Geraldine Francis, Director of Nursing Services at the Community Hospital in Kissimmee, where respondent was employed as a licensed practical nurse. Ms. Francis arranged a meeting the following day, March 28, 1979, with Mr. Lawhorne, respondent and herself. At this meeting, respondent admitted forging Dr. Feir's signature on the prescription form with which he had obtained Demerol the day before. He made the same admission to Mary L. Willis, a nursing practice consultant in petitioner's employ, on April 2, 1979. On April 4, 1979, respondent signed a written confession to the same effect, after talking to Lt. Charles Lee Cecil of the Kissimmee Police Department. In his written statement respondent said, "I realize that I have a drug problem and am seeking help for it, and will never make a mistake like this again." Petitioner's exhibit No. 2. He also stated that the forgery occurred "while under the influence of a Class II Narcotic (Percocet-5) . . ." Petitioner's exhibit No. 2. Demerol, a trade name for meperidine, is also a class II controlled substance. On April 3, 1979, respondent "began voluntary participation in Thee Door's (out-patient) drug abuse program . . . [and, by April 16, 1979] had successfully withdrawn . . ." Letter of Muse/Pollack dated September 10, 1979.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six (6) months. DONE and ENTERED this 23rd day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Mr. James E. Davis 6331 Spanish Oak Drive Orlando, Florida 32309
Findings Of Fact At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16. DONE and RECOMMENDED this 14th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 14th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?
Conclusions The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA). Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987) It is, accordingly, ORDERED: The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987). DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, FL 33704 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399 Janet E. Bowman, Esquire P.O. Box 1876 Tallahassee, FL 32302 James S. Alves, Esquire Thomas T. M. DeRose, Esquire P.O. Box 6526 420 First Florida Bank Building Tallahassee, FL 32314 Lawrence E. Sellers, Jr., Esquire P.O. Drawer 810 Tallahassee, FL 32302 Cindy L. Bartin, Esquire P. O. Box 271 Tallahassee, FL 32302
The Issue The issue in this proceeding is whether Respondent committed the offences set forth in the Administrative Complaint and, if so, whether Respondent's nursing license should be disciplined accordingly.
Findings Of Fact The Agency for health Care Administration is the agency charged with the regulatory and prosecutorial duties related to nursing practice in the State of Florida. Respondent, Rachelle Chiaro Vaslowski, holds a nursing license number RN 2913542. Respondent's last known address is 240 Brookline Avenue, Daytona Beach, Florida 32118. Respondent was employed by the Coquina Center (the Center) from February 12, 1997, until her termination on January 7, 1998. On January 6 and 7, 1998, Respondent was working a day shift at the Center as a registered nurse, at 170 North Center Street, Ormond Beach, Florida. Respondent was under the supervision of Barbara Geyer, R.N., Unit Manager for the sub-acute care section of the nursing home. Respondent was assigned to care for patients which included the administration of their scheduled medications. Ms. Geyer testified regarding Respondent's performance of her duties. On Respondent's shift, patients, whom Respondent was caring for, had not received the medication that they were prescribed. Ms. Geyer also observed twenty to thirty cc' s of clear fluid on Respondent's medication cart when this was brought to her attention by Respondent. Respondent told Ms. Geyer, "I've just spilled a bottle of Roxanol, should I take the plunger and suck it back up again." Roxanol is a strong mixture of pain medication, consisting of Morphine and Demerol, used to medicate the terminally ill. Ms. Geyer advised Respondent that the medication had to be appropriately discarded and the correct documents completed regarding its wastage. Ms. Geyer, who has been an R.N. for many years, observed that Respondent had a very confused look on her face. Ms. Geyer went to her Director of Nursing, Kathy Johnson and advised her of the situation. Both women interviewed Respondent regarding the spilling of the narcotic. A hasty inventory also was conducted of Respondent's medication cart. Respondent was the only person on duty with a key to the cart. There were medications for which Respondent had received which were unaccounted for. Two and a half vials of Morphine and 14 Ambien were missing. They also found two vials marked as containing Roxanol. Since this was the medication that was supposed to have been spilled, Ms. Geyer questioned Respondent about it. Respondent replied, "What do you want, there is more than you need?" Ms. Geyer and Ms. Johnson both stuck their fingers in the supposed vials containing Roxanol. Both women testified that one had a bitter taste and the other had no taste at all. Ms. Geyer observed that, in addition to having a dazed look in her eyes, Respondent gave totally inappropriate responses to the questions she was asked when interviewed. Ms. Johnson, the head nurse, testified that she observed Respondent's nursing skills had declined. Respondent forgot to chart medications she administered. This became a pattern. Ms. Johnson identified Petitioner's Exhibit No. 5 as the complaint she had filed with the State against Respondent on February 20, 1998. Ms. Johnson was qualified as a nursing expert based on her education, training, and experience. She observed that Respondent, when interviewed following the spilling incident, was confused and dazed. Questions had to be repeated several times to her. Respondent appeared not to understand the questions. Ms. Johnson described that when Respondent was informed that they were going to do a narcotics count on Respondent's medication cart, Respondent grabbed her belongings and left the facility in haste. She did not clock out. She did not tell anybody she was leaving. She left the keys on the cart and she was out the door. Ms. Johnson opined that this was very unprofessional behavior. The Center's pharmacy policies and procedures were identified by Ms. Geyer. Ms. Geyer explained the policies and procedures regarding controlled substances. Respondent failed to follow the policy and procedure for disposing of controlled substances. As supervising nurse, Ms. Geyer, filled out a narcotics "wasting" report on Respondent spilling of Roxanol. The medication error report was signed by Barbara Geyer. Ms. Johnson also testified that it is a violation of nursing procedures to not account for narcotics properly when you administer or "waste" them. Further, she opined it was unprofessional conduct to work under the influence of narcotics, to take medications that are intended for patients, and not properly chart medications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Nursing enter a final order suspending the license of Respondent to practice until she has satisfactorily completed the IPN program, and, thereafter, place her on a five-year probation to follow her practice. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 April, 2001. COPIES FURNISHED: Michael E. Duclos, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Rachelle Chiaro Vaslowski 240 Brookline Avenue Daytona Beach, Florida 32118 Ruth R. Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Respondent's license as a Licensed Practical Nurse should be suspended or revoked for alleged violation of Sections 464.21(1)(b) and (d), F.S., as set forth in Administrative Complaint, dated August 3, 1978. The Respondent did not appear at the hearing. Notice of Hearing was issued by the Hearing Officer under date of October 25, 1978, to the address provided by Petitioner, 7124 Bay Drive No. 1, Miami Beach, Florida 33141. This is the address reflected on the envelope which enclosed Respondent's request for hearing on the Administrative Complaint sent to Petitioner under postmark August 28, 1978. It being determined that adequate notice had been provided to Respondent, the hearing was conducted as a uncontested proceed, pursuant to Rule 28-5.25(5), Florida Administrative Code. (Exhibit 5)
Findings Of Fact Respondent Michaela Fives holds License No. 27554-1 as a Licensed Practical Nurse and was so licensed in November, 1977. (Testimony of Johnson) On November 5, 1977, Detective Kenneth Valentine, Hialeah Police Department, was acting in an undercover capacity on an investigation of narcotics. Pursuant to his investigation, he met with Respondent at her apartment located at 5960 NW 38th Street, Apartment 210, Virginia Gardens, Miami, Florida. Lynn Sampson and Danny Cundiff were also present in Respondent's apartment at the time. Cundiff and Sampson wrote out a prescription of 60 300 mg. Quaalude tablets on a printed prescription form. The top of the form showed the name Lacy, Adler, M.D., P.A., followed by "Andrew P. Adler, M.D., Ray C. Lacy, M.D., 221 West Flagler Street, Miami, Florida 33130, Telephone: 887-9339." The prescription was handed to Valentine and Respondent gave him $15.50 to have it filled at the My Pharmacy, 1550 West 84th Street, Hialeah-Miami Lakes, Florida. By pre-arrangement with the pharmacist, Valentine had the prescription filled there and took the pills back to the apartment. Sampson divided them among Respondent, Cundiff and herself, and each of them ingested one tablet. Valentine purchased ten tablets from Sampson and Cundiff for $35.50. (Testimony of Valentine) On November 9, 1977, Valentine again met with the three individuals at Respondent's apartment and was provided another prescription for the same amount of drugs. It reflected the patient's name as Robert Southern, and registration number 178855. It was purportedly signed by "S. Adler, M.D." Prior to this meeting, the Hialeah police had determined that Doctors Adler and Lacy were not listed in the telephone book nor were they located at the address shown on the prescription form. They also determined that the phone number shown on the prescription form was a pay telephone located in Hialeah, Florida. After the individuals at the apartment discussed the fact that the pharmacist would probably call the phone number listed on the prescription form to verify its authenticity, Valentine took the Prescription to the My Pharmacy and had it filled, using his own money for the purchase. At this time, another police officer present at the pharmacy called the phone number listed on the prescription form to ostensibly verify the prescription. Lieutenant Paul Gentesse of the Hialeah Police Department had previously placed himself in a position to observe the pay telephone. He saw the Respondent answer the telephone and then followed her back to her apartment. When Valentine returned with the filled prescription, he gave it to Cundiff who divided the tablets among Respondent, Sampson and Valentine Valentine paid $30.00 for ten tablets. Other police officers then arrived at the apartment and Respondent, Cundiff and Sampson were placed under arrest. (Testimony of Valentine, Gentesse, Exhibit 3) The tablets taken from the possession of Respondent and the others were analyzed by a chemist in the Crime Laboratory of the Dade County Public Safety Department and were found to contain Methaqualone, a controlled substance under Chapter 893, Florida Statutes. Quaalude is a common tradename for Methaqualone. (Testimony of Lynn, Exhibit 2, supplemented by Exhibit 1) On January 9, 1975, Petitioner had suspended the license of the Respondent for period of two years as a result of prostitution charges. The record of that proceeding contained the testimony of Respondent that she had been involved In the illegal use of controlled drugs and had been attending a drug rehabilitation program for the treatment of drug abuse as a result of court order. Respondent thereafter petitioned for reconsideration of the suspension and, on June 29, 1976, Petitioner stayed its order of suspension and placed Respondent on probation for the remainder of the period of suspension. (Testimony of Johnson, Exhibit 4)
Recommendation That Respondent's license as a Licensed Practical Nurse be revoked for violation of Section 464.21(1)(d) , Florida Statutes. DONE and ENTERED this 2nd day day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM 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 Geraldine Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Michaela Fives, L.P.N. 7124 Bay Drive No. 1 Miami Beach, Florida 33141
