08-005800PL Department Of Health, Board Of Nursing vs. Michael N. Heimur, C.N.A. Status: Closed Recommended Order on Tuesday, March 31, 2009.

Summary: The urine test indicated presence of marijuana by-product, and discipline is warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 08-5800PL

)

MICHAEL N. HEIMUR, C.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

On February 12, 2009, a formal administrative hearing in

this case was held in Sarasota, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Megan M. Blancho, Esquire

Carla Schell, Esquire

Department of Health

4052 Bald Cypress Way, Bin No. C-65

Tallahassee, Florida 32399

For Respondent: Michael N. Heimur, C.N.A., pro se

4901 South Salford Boulevard

North Port, Florida 34287

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint are correct, and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 26, 2008, the

Department of Health (Petitioner) alleged that a random drug

test administered to Michael N. Heimur (Respondent) reported a

positive result for marijuana, in violation of Florida statutes

and administrative rules identified in the Complaint.

The Respondent disputed the allegation and requested a

formal hearing. The Petitioner forwarded the request to the

Division of Administrative Hearings, which scheduled and

conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

two witnesses and had three exhibits admitted into evidence.

The Respondent testified on his own behalf and had two exhibits

admitted into evidence.

A Transcript of the hearing was filed on February 25, 2009.

The Petitioner filed a Proposed Recommended Order. The

Respondent filed a letter that has been treated as a Proposed

Recommended Order. Both were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a licensed certified nursing assistant, holding Florida license

number 113243.

2. On or about December 14, 2008, the Petitioner submitted

to a drug screening urinalysis test at the request of an

employer, Maxim Healthcare Services (Maxim).

3. The sample was collected at a Maxim facility located at

University Park, Florida.

4. The Forensic Drug Testing Custody and Control Form and

the urine sample collection container bear handwritten dates of

December 13, 2008. At some point, the dates on the form and the

container were overwritten to indicate that the sample was

collected on December 14, 2008.

5. According to the Respondent's Response to the

Petitioner's Request for Admissions, the sample was collected on

April 14, 2008.

6. The Petitioner presented an expert witness who

testified as to the testing procedures, including custody and

storage of the urine samples to be tested. The expert witness'

testimony regarding sample collection and transportation,

calibration of equipment, sample storage and testing

methodology, and reporting of test results, was persuasive and

has been fully credited.

7. According to the documentation presented by the

Petitioner's expert witness, the sample collection container was

received by the testing laboratory on December 15, 2008, with

all transportation packaging and the sample container seal

intact.

8. According to the expert witness, the test for which

Maxim paid, screened for ten drugs, including marijuana.

9. According to the expert witness, the testing equipment

was properly calibrated at the time the Respondent's urine

sample was tested.

10. The initial immunoassay test result indicated the

presence of a recognized by-product of marijuana (delta nine

tetrahydrocannabinol carboxylic acid) in the Respondent's urine

sample.

11. Because the first result was positive, a second test

was performed using a gas chromatography/mass spectrometry

device, which confirmed the presence of delta nine

tetrahydrocannabinol carboxylic acid in the Respondent's urine

sample.

12. The Respondent denied using marijuana.

13. The Respondent asserted that the test results were

inaccurate.

14. The Respondent testified that he had a prescription

for, and was taking, hydrocodone at the time he provided the

urine sample for the test at issue in this proceeding, but that

the test results did not indicate the presence of hydrocodone.

The Respondent asserted that the test result was either the

result of lab error or that the sample was not his urine.

15. The Petitioner's expert witness testified that the

screening tests purchased by Maxim included limited testing for

opiates and would not have indicated the presence of hydrocodone

in the Respondent's urine.

16. Although the Respondent testified that he had been

told by Maxim personnel that the test results should have

revealed the presence of hydrocodone, the Respondent's testimony

in this regard was uncorroborated hearsay and was insufficient

to support a finding of fact.

17. Although the Respondent asserted that the sample

tested was either not his urine or was otherwise tampered with,

the evidence failed to support the assertion. There was no

evidence that the sample was tampered with in any manner when

the sample was obtained or during transportation to the testing

laboratory. There was no evidence that the seal on the sample

collection container was not intact at the time the sample was

provided or transported. There was no evidence that the sample

was stored improperly. There was no evidence that the testing

equipment was not properly calibrated or that the tests were

improperly performed.

18. The Respondent testified, without contradiction, that

over the course of 20 years in nursing work both before and

after the tests at issue in this proceeding, his test results

have never reported the presence of marijuana.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

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

convincing evidence the allegations against the Respondent.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The burden has been met.

21. The evidence clearly and convincingly established that

the Respondent's urine sample indicated the presence of a

marijuana by-product.

22. The Administrative Complaint alleged that the

Respondent violated Florida Administrative Code Rule

64B9-8.005(2)(k), which states in relevant part as follows:

(2) Failing to meet or departing from

minimal standards of acceptable and

prevailing nursing practice shall include,

but not be limited to, the following:

* * *

(k) Testing positive for any drugs under

Chapter 893, F.S., on any drug screen when

the nurse does not have a prescription and

legitimate medical reason for using such

drug.

23. Marijuana is a Schedule I substance as set forth at

Section 893.03, Florida Statutes (2007). The evidence

establishes that the Respondent violated Florida Administrative

Code Rule 64B9-8.005(2)(k).

24. The Administrative Complaint alleged that the

Respondent violated Subsection 464.018(1)(n), Florida Statutes

(2007), which states in relevant part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(n) Failing to meet minimal standards of

acceptable and prevailing nursing practice,

including engaging in acts for which the

licensee is not qualified by training or

experience.

25. The evidence establishes that by violating Florida

Administrative Code Rule 64B9-8.005(2)(k), the Respondent

violated Subsection 464.018(1)(n), Florida Statutes (2007).

26. The Administrative Complaint alleged that the

Respondent violated Subsection 464.204(1)(b), Florida Statutes

(2007), which states in relevant part as follows:

(1) The following acts constitute grounds

for which the board may impose disciplinary

sanctions as specified in subsection (2):

* * *

(b) Intentionally violating any provision

of this chapter, chapter 456, or the rules

adopted by the board.

27. The evidence establishes that the Respondent committed

a violation of Subsection 464.204(1)(b), Florida Statutes

(2007).

28. In the Proposed Recommended Order, the Petitioner

seeks a reprimand, a fine of $50, and suspension of the

Respondent's license until such time as an Intervention Project

for Nursing (IPN) evaluation has been completed and the

Respondent complies with any conditions resulting from the IPN

evaluation. Florida Administrative Code Rule 64B9-8.006(3)(nn)

provides that the applicable minimum penalty for a drug

screening test violation is a penalty of a $250 fine, an

evaluation by the IPN, and probation. The cited rule provides a

maximum penalty of a $500 fine, denial of licensure, an IPN

evaluation, suspension and probation.

29. Based on the facts established during the hearing, and

the apparent lack of any previous disciplinary violations, the

following recommendation is made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petitioner enter a final order

assessing a fine of $250, requiring completion of an IPN

evaluation, and imposing a 12-month period of probation.

DONE AND ENTERED this 31st day of March, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March, 2009.

COPIES FURNISHED :

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A-00

Tallahassee, Florida 32399-1701

Rick Garcia, MS, RN, CCM

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C-02

Tallahassee, Florida 32399-1701

Patricia Dittman, Ph.D(C), RN, CDE

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C-02

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Megan M. Blancho, Esquire

Carla Schell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

Michael N. Heimur, C.N.A.

4901 South Salford Boulevard

North Port, Florida 34287

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.