99-002165 Board Of Nursing vs. Gary Matthew Davis, L.P.N. Status: Closed Recommended Order on Tuesday, October 19, 1999.

Summary: Possession of marijuana is a crime relating to the practice of nursing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 99-2165

)

GARY MATTHEW DAVIS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on September 24,

1999, in Fernandina Beach, Florida.

APPEARANCES

For Petitioner: Howard M. Bernstein, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a practical

nurse should be disciplined for the reasons given in the

Administrative Complaint filed on October 26, 1998.

PRELIMINARY STATEMENT

This matter began on October 26, 1998, when Petitioner,

Department of Health, Board of Nursing, filed an Administrative

Complaint against Respondent, Gary Matthew Davis, a licensed

practical nurse, alleging that Respondent pled no contest to a

charge of possession of marijuana, a misdemeanor, in October 1997

and January 1998, and that these pleas constituted a violation of

Sections 464.108(1)(c) and (i), Florida Statutes (1997).

Respondent denied the allegation and requested a formal hearing

to contest the preliminary action. The matter was referred by

Petitioner to the Division of Administrative Hearings on May 11,

1999, with a request that an Administrative Law Judge be assigned

to conduct a formal hearing.

By Notice of Hearing dated June 3, 1999, a final hearing was

scheduled on September 17, 1999, in Fernandina Beach, Florida.

Because of adverse weather conditions caused by Hurricane Floyd,

the matter was continued to September 24, 1999, at the same

location. On September 14, 1999, the case was transferred from

Administrative Law Judge E. J. Davis to the undersigned.

At the final hearing, Petitioner presented the testimony of

Mellisa Kurz, a registered nurse and former director of nursing

services at Maxim Home Healthcare Services, where Respondent was

once employed. Also, it offered Petitioner's Exhibits 1-3. All

exhibits were received in evidence. Respondent did not appear at

the final hearing.

The Transcript of the hearing was filed on October 4, 1999.

Proposed findings of fact and conclusions of law were due by

October 14, 1999. None, however, have been filed.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary action, Petitioner, Department of

Health, Board of Nursing (Board), seeks to impose penal sanctions

on the license of Respondent, Gary Matthew Davis, a licensed

practical nurse, on the ground that he twice entered a plea of no

contest to a crime related to the practice or the ability to

practice nursing. In his Election of Rights Form filed with the

Board, Respondent disputed various allegations in the complaint

and requested a formal hearing.

2. Respondent is subject to the regulatory jurisdiction of

the Board, having been issued license no. 1265761 by endorsement

on March 12, 1997. As of June 1999, the license was active.

3. Petitioner's Composite Exhibit 3 establishes that on

October 9, 1997, Respondent was arrested in Duval County,

Florida, for purchasing marijuana from an undercover sheriff's

officer, a felony. On December 8, 1997, the charge was reduced

to possession of less than 20 grams of marijuana, a misdemeanor.

Although the Administrative Complaint alleges that on the same

date Respondent entered a plea of no contest to the misdemeanor

charge, perhaps through inadvertence, the records offered into

evidence do not substantiate this charge.

4. Petitioner's Composite Exhibit 2 establishes that on

October 24, 1997, Respondent was again arrested for possession of

marijuana and carrying a concealed weapon in his automobile. On

January 22, 1998, Respondent entered a plea of no contest to one

count of possession of less than 20 grams of marijuana, a

misdemeanor. The firearms charge was dropped. He was

adjudicated guilty and sentenced to serve 2 days in jail and pay

court costs. He also forfeited the concealed weapon.

5. Despite the lack of expert testimony on this issue, it

is fair to infer that the use of a drug such as marijuana could

impair the ability of a nurse to practice his profession, and

thus the crime to which Respondent pled guilty related to his

ability to safely practice nursing.

6. A representative of Respondent's former employer,

Melissa Kurz (Kurz), gave lay testimony at hearing and

established that Respondent was working as a licensed practical

nurse at Maxim Home Healthcare Services in the fall of 1997. His

sole responsibility was giving flu shots to patients. After

Respondent's arrest, he was dismissed from employment and

referred to a substance abuse program by his employer. However,

Respondent refused to enter the program. Given his refusal to

participate in that program, and the fact that Respondent was in

possession of a controlled substance, Kurz expressed concern

about Respondent's ability to continue practicing as a nurse at

her facility.

7. In terms of mitigation, there is no evidence that

Respondent has ever been disciplined by the Board on any prior

occasion. There is also no evidence that his use of drugs caused

harm to any patient.

8. As aggravating circumstances, the evidence shows that

while Respondent was convicted of possession of a controlled

substance on only one occasion, he was arrested for the same

offense twice within a one-month period. Also, Respondent failed

to make any effort to rehabilitate himself by refusing to attend

substance abuse classes, as directed by his employer. Finally,

Respondent had been licensed as a professional for less than one

year when these events occurred.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

10. As the party seeking to impose penal sanctions on

Respondent's professional license, Petitioner bears the burden of

proving the allegations in the charging document by clear and

convincing evidence. See , e.g. , Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

11. The Administrative Complaint alleges that Respondent

"is subject to discipline pursuant to [S]ection 464.108(1)(c),

[Florida Statutes (1997)], by being found guilty, or entering a

plea of nolo contendere to, regardless of adjudication, of a

crime related to the practice or the ability to practice

nursing." The complaint goes on to allege that Respondent may

also be disciplined pursuant to Section 464.108(1)(i), Florida

Statutes [1997], by "engaging, or attempting to engage in the

possession of controlled substances under [C]hapter 893, Florida

Statutes, for other than legitimate purposes." These sections

have been subsequently renumbered as Sections 464.018(1)(c) and

(i), Florida Statutes (1999).

12. By clear and convincing evidence, Petitioner has

established that on January 22, 1998, Respondent pled guilty to a

crime related to the practice or the ability to practice nursing,

as proscribed by Section 464.108(1)(c), Florida Statutes (1997).

Therefore, as to that particular allegation, the charge in

Count I has been sustained. There is no proof, however, that he

pled guilty to a similar crime on October 24, 1997.

13. By clear and convincing evidence, Petitioner has also

established that Respondent engaged in the possession of a

controlled substance as defined by Chapter 893, Florida Statutes,

for other than a legitimate purpose, as alleged in Count II of

the complaint. Therefore, a violation of Section 464.108(1)(i),

Florida Statutes (1997), has been shown.

14. Rule 64B9-8.006, Florida Administrative Code, sets

forth the disciplinary guidelines and range of penalties for

statutory violations. Among other things, where a misdemeanor

violation related to the practice of nursing has been

established, paragraph (3)(f) of the rule calls for a penalty

ranging "from [a] fine of $250 and reprimand to referral to IPN

or $1000 fine [and] one year suspension and two years' probation

with conditions." For a violation of Section 464.108(1)(i),

Florida Statutes, paragraph (3)(j) of the rule calls for a

penalty ranging "from $250 - $1000 fine and probation with

conditions or IPN participation to five year suspension followed

by probation with conditions."

15. Given the mitigating and aggravating circumstances

noted in paragraphs 7 and 8, a suspension of Respondent's license

for one year is appropriate, to be followed by a period of

probation (and conditions) to be determined by the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Nursing enter a final order

finding that Respondent violated Sections 464.108(1)(c) and (i),

Florida Statutes (1997), on one occasion, and that his license

should be suspended for one year, to be followed by a period of

probation (and conditions) to be determined by the Board. The

remaining charge should be dismissed.

DONE AND ENTERED this 19th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

this 19th day of October, 1999.

COPIES FURNISHED:

Ruth Stiehl, Executive Director

Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Howard M. Bernstein, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Gary Matthew Davis

822 Vernon Street

Fernandina Beach, Florida 32034

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast, Bin A02

Tallahassee, Florida 32399-1703

J. Hardin Peterson, III, General Counsel

Department of Health

2020 Capital Circle, Southeast, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.