00-003646PL Department Of Health, Board Of Nursing vs. Annie Scotto Downs Status: Closed Recommended Order on Friday, December 29, 2000.

Summary: Drug screen urinalysis established presence of marijuana metabolites; reprimand and fine warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-3646PL

)

ANNIE SCOTTO DOWNS, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

On November 15, 2000, a formal administrative hearing in

this case was held by videoconference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizab eth A. Hathaway, Esquire

Reginald D. Dixon, Esquire

Agency for Health Care Administration

General Counsel's Office

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Annie Scotto Downs, pro se

8708 52nd Street, North

Tampa, Florida 33617

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint filed by the Petitioner are correct and,

if so, what penalty should be imposed against the Respondent.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 18, 2000, the

Department of Health (Petitioner) alleged that Annie Scotto Downs

(Respondent) violated Section 464.018(1)(h), Florida Statutes,

and Rule 64B9-8.005(18), Florida Administrative Code, by testing

positive for a controlled substance without a prescription or a

legitimate medical reason for use of the substance. The

Respondent requested a formal hearing. The Petitioner forwarded

the request for hearing to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

During the hearing, the Petitioner presented the testimony

of five witnesses and had Exhibits numbered 2-7 admitted into

evidence. Petitioner's Exhibit number 2 consisted of the

Respondent's responses to the Petitioner's Request for Admissions

and was admitted after the Respondent's response to Petitioner's

request number 11 was struck. The Respondent testified on her

own behalf and had one composite exhibit admitted into evidence.

A Transcript of the hearing was filed on November 27, 2000. The

Petitioner filed a Proposed Recommended Order. The Respondent

filed a letter that has been treated as a Proposed Recommended

Order.

FINDINGS OF FACT

1. Since July 1993, and at all times material to this case,

the Respondent has been licensed as a registered nurse holding

Florida license number RN-2711762.

2. On April 27, 1999, the Respondent was employed as a

nurse by "Qwest, Inc."

3. On April 27, 1999, the Respondent submitted to an

employer-ordered drug screening at her workplace.

4. The drug screen was conducted by use of a urine sample

collected by Kenneth Stanley. Mr. Stanley owns and operates a

business that specializes in collection of urine samples for

purposes of drug screens.

5. Mr. Stanley utilized the sample collection guidelines

adopted by the "Florida Drug Free Workplace" program and the

Florida Department of Transportation.

6. Upon arriving at "Qwest, Inc." Mr. Stanley secured the

rest room where the urine samples would be taken by placing blue

dye in the toilet water and covering the faucet with a surgical

glove secured with tape. Apparently, the purpose of the process

is to prohibit the contamination of a urine sample by dilution.

7. Mr. Stanley set up a table in the area outside the rest

room to permit the processing of the samples and the completion

of paperwork.

8. Mr. Stanley called the Respondent into the area and

verified her identification. He began to complete paperwork

identifying the Respondent.

9. Mr. Stanley removed a plastic cup from a sealed package

that was opened for use in obtaining the sample from her. He

provided the cup to her and asked her to enter the rest room,

fill the cup to the proper level, set the cup on the sink

counter, and then exit the rest room without washing her hands or

flushing the toilet.

10. Mr. Stanley retrieved the cup immediately after the

Respondent notified him that she had completed the process and

brought it back to his table. He placed the sample into a sealed

tube and completed the paperwork identifying the sample as having

been provided by the Respondent.

11. The protocol utilized by Mr. Stanley requires the

sample-provider to remain in the room until all paperwork is

completed and the sample is properly sealed and packaged for

shipment.

12. The Respondent asserts that she left the room after

providing the sample to Mr. Stanley and that Mr. Stanley failed

to maintain appropriate security for her sample, permitting it to

be contaminated by another employee.

13. The evidence establishes that the Respondent remained

in the area and was in the presence of the sample at all times

during the collection, sealing and identification process. The

Respondent was present when her sample was identified, processed,

and packaged for shipment.

14. There is no credible evidence that another employee of

" Qwest, Inc." contaminated the Respondent's urine sample or that

Mr. Stanley failed to maintain the proper identification of the

Respondent's sample from the point of collection through the

point of shipment.

15. Mr. Stanley shipped the Respondent's sealed urine

sample to Clinical Reference Laboratory (CRL) in Lenexa, Kansas.

16. The sealed sample was received and processed by CRL,

which similarly receives and processes approximately one million

samples annually for purposes of drug screen testing.

17. In performing urinalysis drug screen tests, CRL

initially performs a preliminary test called an "enzyme

immunoassay" on a portion of the sample.

18. If the results of the preliminary test indicate the

presence of a substance, CRL tests a second portion of the sample

using a gas chromatography mass spectrometer to confirm the

results of the first test and to quantify the specific amount of

drug present in the urine sample.

19. The enzyme immunoassay performed on the Respondent's

urine sample indicated the presence of marijuana metabolites.

20. Marijuana metabolites are a chemical substance

contained in the Cannabis plant.

21. Cannabis is a controlled substance pursuant to Chapter

893, Florida Statutes.

22. The gas chromatography mass spectrometer test performed

on the Respondent's urine sample confirmed the presence of

marijuana metabolites and indicated the specific amount of drug

present in the urine sample as 28 nanograms of marijuana

metabolites per milliliter of urine.

23. Based on the results of the testing at CRL, the

evidence establishes that the Respondent's urine sample taken on

April 27, 1999 tested positive for marijuana.

24. There is no evidence that the Respondent had a

prescription or a valid medical reason for using marijuana.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

26. The Department of Health is responsible for licensure

and regulation of registered nurses in Florida. Chapters 456 and

464, Florida Statutes.

27. The Petitioner has the burden of proving by clear and

convincing evidence the allegations against the Respondent.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). In this case,

the burden has been met.

28. Section 464.018, Florida Statutes, sets forth standards

for disciplinary actions that can be taken by the Department of

Health, and provides in relevant part as follows:

464.018 Disciplinary actions.--

(1) The following acts shall be grounds for

disciplinary action set forth in this

section:

(h) Unprofessional conduct, which shall

include, but not be limited to, any departure

from, or the failure to conform to, the

minimal standards of acceptable and

prevailing nursing practice, in which case

actual injury need not be established.

29. Rule 64B9-8.005(18), Florida Administrative Code,

provides that "unprofessional conduct" includes "[t] esting

positive for any drugs under Chapter 893 on any drug screen when

the nurse does not have a prescription and legitimate medical

reason for using such drug."

30. The evidence establishes that the Respondent's urine

sample collected on April 27, 1999, reflected the presence of

marijuana metabolites.

31. There is no evidence that the Respondent had a

prescription for, or any valid medical use for, marijuana or any

derivative thereof.

32. Rule 64B9-8.006(3)( i), Florida Administrative Code,

sets forth the following guideline for imposition of discipline

in this case: " Fine from $250 - $1000 plus reprimand, to

suspension, probation with conditions and fine."

33. Rule 64B9-8.006(4)(a), Florida Administrative Code,

provides that the "Board shall be entitled to deviate from the

foregoing guidelines upon a showing of aggravating or mitigating

circumstances by clear and convincing evidence. . . ." The rule

further provides that "[i]f a formal hearing is held, any

aggravating or mitigating factors must be submitted to the

hearing officer at formal hearing."

34. Rule 64B9-8.006(4)(b), Florida Administrative Code ,

provides as follows:

Circumstances which may be considered for

purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

1. The severity of the offense.

2. The danger to the public.

3. The number of repetitions of offenses.

4. Previous disciplinary action against the

licensee in this or any other jurisdiction.

5. The length of time the licensee has

practiced.

6. The actual damage, physical or otherwise,

caused by the violation.

7. The deterrent effect of the penalty

imposed.

8. Any efforts at rehabilitation.

9. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations.

10. Cost of treatment.

11. Financial hardship.

12. Cost of disciplinary proceedings.

35. There is no evidence that the Respondent has had any

previous disciplinary action taken against her during her six-

year licensure. There is no evidence that the Respondent

presents any danger to the public. There have been no attempts

at rehabilitation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Petitioner enter a Final Order

reprimanding the Respondent, imposing a fine of $250 and requiring

the completion of an appropriate continuing education course

related to substance abuse in health professions. The continuing

education course shall be in addition to those continuing

education requirements otherwise required for licensure.

Further, the Final Order should further require that the

Respondent participate in an evaluation by the Intervention

Project for Nurses (IPN) within 60 days of the issuance of the

Final Order, and comply with the treatment recommendations, if

any, made by the IPN, or suffer suspension of licensure until

compliance with this requirement is established.

DONE AND ENTERED this 29th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 Clerk of the

Division of Administrative Hearings

this 29th day of December, 2000.

COPIES FURNISHED :

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Ruth R. Stiehl, Ph.D., R.N., Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Elizabeth A. Hathaway, Esquire

Reginald D. Dixon, Esquire

Agency for Health Care Administration

General Counsel's Office

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Annie Scotto Downs

8708 52nd Street North

Tampa, Florida 33617

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.