16-004101PL Department Of Health, Board Of Nursing vs. Lisa Michelle Jackson, R.N. Status: Closed Recommended Order on Tuesday, November 29, 2016.

Summary: Petitioner proved that Respondent violated section 464.018(1) as a result of her possession and use of opiods. A one-year suspension of her license, with compliance with IPN standards before reinstatement was waranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF NURSING ,

Petitioner,

vs. Case No. 1 6 - 4101 PL

LISA MICHELLE JACKSON, R.N. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 21 , 2016 , a final hearing was held by video

teleconference at locations in Tallahassee and Jacksonville ,

Florida, before E. Gary Early , an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rob F. Summers , Esquire

Brynna J. Ross , Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Responde nt: Lisa Michelle Jackson , pro se

2356 York Street

Jacksonville, Florida 32207 - 3541

ST ATEMENT OF THE ISSUE S

The issues to be determined are w hether Respondent

possess ed Dilaudid without a legitimate purpose, and whether

Respondent is unable to practice nursing with reasonable skill

and safety , in violation of section 464.018(1) , Florida

Statutes, as alleged in the Administrative Complaint and, if so,

the appropriate penalty.

PRELIMINARY STATEMENT

On May 4 , 2016 , Petition er , Department of Health

(Department or Petitioner ) , issued a n Administrative Complaint

against Respondent , Lisa Michelle Jackson , a registered nurse .

The date of RespondentÓs receipt of the Administrative

Complaint was not disclosed. The complaint charged Respondent

with possession of a narcotic, Dilaudid, without a legitimate

medical purpose, and with being unable to practice nursing with

reasonable skill and safety to pa tients due to her severe

opioid - use disorder , in violation of section 4 64 .0 18( 1) .

On or about June 13, 2016 , Respondent filed a n Election of

Rights in which she disputed material facts alleged in the

Administrative C omplaint and requested an administrative

hearing. Timeliness of the filing of the Election of Rights

was not an issue.

On July 20 , 2016, the petition was referred to the

Division of Administrative Hearings. The final hearing was

scheduled for September 21, 2016 .

On September 16, 2016 , the Department filed a Unilateral

Pre - hearing St atement of Facts, in which it indicated that

efforts to communicate with Respondent regarding the matters

set forth in the Order of Pre - hearing Instructions had been

unsuccessful.

The final hearing was convened on September 21, 2016, as

sc heduled. Respondent appeared at the hearing and indicated

that, although she had been tr ying to get in touch with her

witness Ðfor several months,Ñ she had been unable to do so. It

seemed unlikely that, under the circumstances, the witness was

either wil ling or able to be located. Respondent did not move

for a continuance. Thus, the hearing proceeded.

A t hearing, the Department offered the testimony of

Robert Gorsuch, a paramedic with the Jacksonville Fire and

Rescue Department ; Allison Quartano, a registered nurse at

St. VincentÓs Riverside Medical Center; and Dr. Erin McB r ide

Johnson , a n emergency physician at St. VincentÓs Riverside

Medical Center . The Department o ffered PetitionerÓs Exhibit s 1

through 13 in evidence. Petitioner Ós Exhibit 10 is the

deposition transcript of Respondent. PetitionerÓs Exhibit 11

is the deposition transcript of Dr. Eduardo Sanchez, a

ps ychiatrist with a specialt y in addiction psychiatry.

Dr. Sanchez was identified as an expert witness. Having

reviewed his testimony and CV, it is concluded that Dr. Sanchez

has the knowledge, skill, experience, training, and education

to assist the undersigned in determining a fact in issue, and

is therefore qualified as an expert , entitled to testify in the

form of an opinion . It is further concluded, based on his

testimony , the psychiatric evaluation report, and the

statements and documents upon which he relied , that his

testimony was based upon sufficient facts or data; was the

product of reliable principles and methods; and that h e applied

the principles and methods reliably to the facts of the case.

Petitioner Ós Exhibit 1 3 is the deposition transcript of

Sergeant Steven A. Coleman of the Jacksonville SheriffÓs

Department . Sergeant Coleman was out of the country at the

time of th e final hearing. The use of the depositions is

authorized by Florida Rules of Civil Procedure 1.330(a) and

Florida Administrative Code Rule 28 - 106.206 , and the

depositions will be considered and given weight as though the

deponents testified in person at the final hearing.

Respondent testified on her own behalf. Respondent

offered no other witnesses , and no exhibits.

The record was held open to allow the Department to file

original affidavits authenticating the documents received at

the final hearing, copies of those affidavits having been

previously provided. On September 30, 2015, the Department

filed original certification s from the custodian s of the

records . Thus, the exhibits have been authenticated by

evidence sufficient to support a finding that the documents are

what the Department claims them to be.

The one - volume final hearing T ranscript was filed on

October 11, 2016 . On October 18, 2016, the Department filed

a n unopposed Motion for Extension of Time to File Proposed

Recommended Order, which requested that the time for filing be

extended for 10 days. The Motion was granted, and proposed

recommended orders were due on October 31, 2016 . Both parties

timely filed P roposed R ecommended O rder s tha t were considered

in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 5 ), unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Board of Nursing , is the

state agency charged with regulating the practice of nursing in

th e s tate of Florida, pur suant to section 20 .43 , and chapters

456 and 4 64 , Florida Statutes.

2. At all times material to this proceeding, Lisa Michelle

Jackson was a licensed registered nurse in the s tate of Florida,

holding license number RN 9375240 .

3. RespondentÓs current address of record is 2358 York

Street, Jacksonville, Florida 32207 .

4. On Saturday, November 7, 2015, Respondent left work and

picked up her minor son from her parentsÓ house . She drove

home, parked at her front door, and lost c onsciousness. At some

point, RespondentÓs parents called her cell phone . The phone

was answered by RespondentÓs son, who advised them of the

situation. RespondentÓs parents went to her house, and

apparently called emergency medical services.

5 . EMS personnel arrived on the scene and administered

Narcan to Respondent . Narcan is a medication that blocks

receptors for opioid - based drugs, and is used to reverse the

effects of opioids . It is commonly used when medical personnel

suspect a patient of an opioid overdose.

6 . Respondent was thereafter t ransported to St. VincentÓs

Riverside Medical Center (Riverside) , and admitted with

encephalopathy and acute respiratory failure. Respondent had to

be placed on a respirator. A urine drug screen was performed,

which returned positive for benzodiazepines and opiates.

Riverside related the encephalopathy and respiratory failure to

a suspected drug overdose.

7 . Respondent denied having taken anything containing

benzodiazepines . She did indicate that approximately a year

earlier she had undergone a tooth extraction, for which her

dentist had prescribed Percocet. She had some left over, and

testified that she had taken some for back pain several days

before November 7, 2015 .

8 . Respondent was d ischarged from Riverside on November 9,

2015 , at approximately 11:40 a.m.

9 . After her discharge from Riverside on November 9, 2015,

but later that afternoon, Respondent was speaking with her

mother on the telephone. RespondentÓs mother did not like the

way she sounded, and came to the house. RespondentÓs mother

believed that Respondent was lethargic, but Respondent admitted

only to being tired from her earlier hospital stay. EMS was

called, and Respondent was again transported to Riverside, where

she was admitted at approximately 5:45 p.m. Her diagnosis on

admission was hypertensive disorder. She self - discharged

against medical advi c e, signi ng the discharge papers at

6:36 p.m. There was no evidence that RespondentÓs admission to

Riverside on November 9, 2015 , was the result of the use or

abuse of any substance.

10 . On November 20, 2015, Respondent and Carl Nesmith were

at RespondentÓs residence. Respondent testifi ed that she was

experiencing back pain. At some time during the evening,

Respondent took three or more Dilaudid tablets . Respondent

testified that the tablets belonged to Mr. Nesmith, though the

evidence was not sufficient to support a finding to that ef fect.

Nonetheless, by the time of the arrival of the EMS team and her

subsequent admission to Riverside as described herein, the

tablets were in her possession.

11 . Dilaudid is a brand name of hydromorphone, an opioid.

Pursuant to s ection 893.03(2) (a) 1.k. , Florida Statutes,

hydromorphone is a Schedule II controlled substance that Ð has a

high potential for abuse and has a currently accepted but

severely restricted medical use in treatment in the United

States, and abuse of the substance may lead to seve re

psychological or physical dependence . Ñ Respondent did not have

a prescription for Dilaudid .

12 . At some point during the evening of November 20, 2015,

Respondent passed out in her bathroom. EMS was called and

dispatched to RespondentÓs residence. The inference is that

Mr. Nesmith called them, but since Respondent was unconscious,

and Mr. Nesmith did not testify, the identity of the caller is

not known. More to the point, the identity of the caller is not

relevant.

13 . When EMS personnel arrived, they found Respondent

unresponsive on the bathroom floor . Mr. Gorsuch recognized

RespondentÓs symptoms, including agonal breathing, as

characteristic of an opioid overdose, and administered Narcan to

counteract the effects of the suspected drug. The Nar can

Ðworked,Ñ and Respondent regained consciousness.

14 . EMS personnel discovered a plastic bag with loose

pills in RespondentÓs purse . The pills were taken with

Respondent as she was transported by EMS to Riverside .

15 . Respondent was received at th e Riverside emergency

room shortly after midnight on November 21, 2015 . Her condition

was described as Ðdrowsy but a rousable with slurred speech.Ñ

16 . Upon her arrival at Riverside, Ms. Quartano observed

that Respondent was clutching a Ziplock - type bag of pills in her

hand. How the pills came to be in her hand was not explained.

Whether in her purse or in her hand, the pills were in

Respondent Ó s possession. The pills were provided to Dr. McBride

Johnson , who identified the pills as Dilaudid based on t heir

shape, color, and markings.

17 . Respondent Ós diagnosis upon admission was acute

encephalopathy ; poisoning by unspecified drugs, medicaments, and

biological substances, accidental, initial encounter ; and

altered mental status.

18 . Respondent underwent a urine screening, which returned

positive for benzodiazepines.

19 . Despite the fact that Respondent knew that she had

taken ÐpillsÑ during the evening in question, she denied to

hospital personnel that she had taken any drugs or alcohol .

20 . As she had on November 9, 2015, Respondent self -

discharged against medical advice , signing the discharge papers

at 5:30 a.m. Upon her discharge from the hospital, Respondent

was taken into custody by Sergeant Coleman from the J acksonville

SheriffÓs Offi ce .

21 . Respondent told Sergeant Coleman that the Dilaudid had

been given to her by a friend for back pain , and that she had

them for several days.

22 . Despite her deposition testimony that she had taken

pills allegedly provided to her by Mr. Nesmith , she told

Sergeant Coleman that she had taken one of her previously

prescribed Perco c et tablets, and denied having taken any of the

pills given to her by her Ðfriend.Ñ Respondent was then placed

under arrest.

23 . RespondentÓs mother had, for years, taken care of

RespondentÓs son while Respondent was working , often at night .

Be tween November 2015 and January 2016, RespondentÓs parents

took over primary care of her son in order to provide him with a

more stable envi ronment.

24 . There is no evidence that Respondent ever diverted

opioids, or any other drugs, from her employer. However, a fter

having been visited by a Department of Health investigator,

RespondentÓs employer, University of Florida Health - Shands

(Shan ds) , first suspended and then, in January 2016, terminated

RespondentÓs employment as a registered nurse.

25 . On February 14, 2016, a Jacksonville SheriffÓs Deputy

performed a traffic stop on Respondent after observing her fail

to maintain her lane of traffic, stop past the stop bar at a

stop light, drive up onto the curb nearly striking a pole, drive

onto another curb and nearly onto the sidewalk, and while

attempting to negotiate a turn, nearly strik e another pole.

26 . The deputies called to the scene observed that

Respondent had bloodshot eyes, slurred speech, lethargic

movements, and that she was unsteady on her feet. She underwent

Field Sobriety Exercises but failed to perform them to standard.

27 . Respondent t estifie d that she had taken som e over - the -

counter sleeping medication at least 12 hours before being

stopped. She could think of no reason why such medications

would have had an effect on her by the time of the stop.

28 . Respondent stated that her erratic driv ing was caused

by her vehicle pulling to the right and being difficult to

control, which was consistent with her deposition testimony that

it was because her car needed an alignment. That explanation

was not believable.

29 . Respondent was arrested for d riving while under the

influence. The charges were ultimately reduced to reckless

driving, but Respondent was required to attend DUI driving

school, attend the D UI Victim Impact Panel, and perform

community service.

30 . On March 15, 2016, Respondent w as walking from her

motherÓs house to her car when she passed out in her motherÓs

yard. The Jacksonville Fire and Rescue Department responded ,

arriving at approximately 12:15 p.m. The EMS personnel

administered Narcan to Respondent, and transported her t o

Baptist Medical Center (Baptist). By the time she arrived, she

was able to communicate with medical personnel, and attributed

the incident to a fight with her mother, and lightheadedness

from not eating that day.

31 . Respondent testified that Ðthey told me at the

hospital that I had morphine in my system , and I had no

morphine.Ñ RespondentÓs understanding of what she was told is

not substantiated by the Baptist medical records. Thus, the

evidence is not sufficient to support a finding that Responde nt

had morphine in her system on March 15, 2016. Respondent was

discharged from Baptist at approximately 1:15 p.m., about an

hour after her arrival.

32 . Beginning Ðtowards the end of 2015,Ñ and extending

Ðmaybe up until March or April [2016], maybe a li ttle later,Ñ

Respondent went to the Jacksonville Metro Treatment Center where

she received daily methadone treatments in an effort to wean

herself off of controlled substances. She ÐsomewhatÑ received

counseling, but the substance of her testimony indicat es that

the methadone was the driving cause of her visits to the

treatment center. She stopped attending the treatment center

due to the cost.

33 . From April 2016, when she stopped receiving methadone

treatment at the Jacksonville Metro Treat ment Center, until June

or July 2016, Respondent received outpatient Suboxone treatment

at Merit Health River Region , which accepts Medicaid. Suboxone

is like methadone, but it blocks opioid receptors. Respondent

stopped going to River Region because it was h ard for her to get

there due to transportation issues. Respondent did not complete

her treatment, and she was not advised that she was in remission

or that she should discontinue her treatment. Respondent has

received no substance abuse treatment since s he stopped going to

River Region.

3 4 . On or about March 17, 2016, Dr. Sanchez evaluated

Respondent as allowed by s ection 4 64 .018(1)(j) . The evaluation

included not only a face - to - face interview with Respondent, but

included a review of records, includin g medical and law

enforcement records, related to each of the incidents described

herein.

3 5 . During the evaluation, Respondent advised Dr. Sanchez

that she had used opioids Ð opportunistically Ñ f or about 10

years , with her usage being sporadic and impulsive.

3 6 . Respondent further advised Dr. Sanchez that she had

used a Fentanyl patch three to four days prior to the

evaluation. Pursuant to section 893.03(2)( b ) 9 ., Florida

Statutes, Fentanyl is a Schedule II co ntrolled substance with

the same potential for abuse as Dilaudid. Respondent did not

have a prescription for Fentanyl . Dr. Sanchez opined that

RespondentÓs use of Fentanyl that close to the evaluation , with

the risk of detection in the toxicology screen, was an

indication of the strength of her addiction.

3 7 . Respondent did not tell Dr. Sanchez about the

March 15, 2016 , incident during which she passed out in her

motherÓs yard, an incident that occurred only two days prior to

the evaluation. She agree d that the incident would h ave been

relevant to Dr. SanchezÓs evaluation. The failure to disc lose

the incident is indicative of an evasive attitude towards

matters that would reasonably be expected to affect RespondentÓs

ability to practice nursing with r easonable skill and safety .

3 8 . Dr. Sanchez noted that Respondent ha d a history of

emergency room visits over extended periods of time with

different pain complaints, including back pain, abdominal pain

related to gastric bypass surgery , and a broken tooth, all of

which resulted in recommendations for short - term opiate therapy.

Dr. Sanchez opined that RespondentÓs actions suggested drug -

seeking behavior. However, the maladies described, including a

bulging disc from a car accident, and chronic tooth issues

including, at the time of the evaluation, an abscess, were

diagnosed by physicians, who prescribed pain management

medications , and were not illusory .

39 . Regardless of whether RespondentÓs use of opioids was

initiated as a result o f a medically - pruden t prescription, the

evidence is clear and convincing that RespondentÓs use has

passed to the stage of addiction.

4 0 . Dr. Sanchez opined that the incident on November 7 ,

2015, when Respondent took some form of opioid and picked up her

child on the way home , ultimately losing consciousness at the

wheel of her car, was evidence of a strong compulsion to use

opioids . Dr. Sanchez Ós opinion that this incident indicate d a

significant lack of judgment and control is credited.

4 1 . The incident on November 20, 2016 , is further strong

evidence of a growing and dangerous addition. In light of the

other incidents described herein, and RespondentÓs familiarity

with opioids over the years, both as a patient and a nurse,

RespondentÓs testimon y that she did not understand what she was

taking that evening is simply not credible.

4 2 . Dr. Sanchez stated the circumstances surrounding

RespondentÓs February 14, 2016 , arrest for driving under the

influence is further evidence that Respondent was Ð lo sing

control Ñ of her addiction. The suggestion that the incident was

the result of poor alignment is not credible, particularly in

light of RespondentÓs appearance and performance during the

stop.

4 3 . Dr. Sanchez determined that Respondent refuses to

ac cept responsibility for her behavior and remains in denial of

her substance abuse issues , a conclusion that is supported and

accepted.

4 4 . As a result of his evaluation , Dr. Sanchez diagnosed

Respondent with severe opioid use disorder. He opined that

Respondent has significantly impaired judgment due to her

substance abuse, which precludes her from functioning as a

registered nurse with the necessary skill and safety to

patients. His testimony is credited.

4 5 . Dr. Sanchez further opined that Respond ent requires an

extended period of continuous supervision with monitoring,

substance abuse treatment, random toxicology testing, and an

extended period of time of documented abstinence from controlled

substances before Respondent would be able to practice nursing

with sufficient skill and safety to patients. He recommended

that Respondent complete a full course of treatment geared to

substance abuse and chemical dependency, initially as inpatient

treatment , followed by an intensive outpatient program after a

reasonable period of abstinence.

4 6 . Finally, Dr. Sanchez recommended that Respondent

execute an Intervention Project for Nurses (IPN) monitoring

agreement. IPN is the impaired practitioner program for the

Board of Nursing, pursuant to section 456. 076. IPN monitors the

evaluation, care, and treatment of impaired nurses. IPN

oversees random drug screens and provides for the exchange of

information between treatment providers, evaluators, and the

Department for the protection of the public.

4 7 . R e spondent has not entered any form of i n patient

treatment, though she indicated that she is currently on a wait -

list for inpatient treatment, has discontinued outpatient

treatment, and has not entered into an IPN agreement.

C ONCLUSIONS OF LAW

A. Jurisdicti on

4 8 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and 120.57(1) , Fl a. Stat.

(201 6 ) .

49 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing registered nurses . § 456.073, Fla. Stat.

B. Standards

5 0 . Section s 4 64 .0 18 (1)( i ) and (j) provide , in pertinent

part, that:

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(i) Engaging or attempting to engage in the

possession, sale, or distribution of

controlled substances as set forth in

chapter 893, for any other than legitimate

purposes authorized by this part.

(j) Being 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. In enfo rcing this

paragraph, the department shall have, upon a

finding of the State Surgeon General or the

State Surgeon GeneralÓs designee that

probable cause exists to believe that the

licensee is unable to practice nursing

because of the reasons stated in this

paragraph, the authority to issue an order

to compel a licensee to submit to a mental

or physical examination by physicians

designated by the department . . . . A

nurse affected by the provisions of this

paragraph shall at reasonable intervals be

afforde d an opportunity to demonstrate that

she or he can resume the competent practice

of nursing with reasonable skill and safety

to patients.

C. Burden and Standard of Proof

5 1 . The D epartment bears the burden of proving the

specific allegations that suppo rt the charges alleged in the

Administrative Complaint by clear and convincing evidence.

DepÓt of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health , 994 So. 2d

416 (Fla. 1st DCA 2008); Pou v. DepÓt of Ins. & Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

5 2 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion o f a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof :

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clea r and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence

requires that the evidence must be

found to be credible; the facts to

which the witnesse s testify must be

distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in

confusion as to the facts in issue.

The evidence must be of such weight

that it produces in the mind of the

trier of fact a firm belie f or

conviction, without hesitancy, as to

the truth of the allegations sought

to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Elec tric Corp. v. Shuler Bros. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991).

5 3 . A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487, 491 (Fla.

1973). Penal statutes must be construed in terms of their

literal meaning and word s used by the Legislature may not be

expanded to broaden the application of such statutes. Thus, t he

provisions of law upon which this disciplinary action has been

brought must be strictly construed, with any ambiguity construed

against Petitioner. Elmariah v. DepÓt of Bus. & ProfÓl Reg. ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st

DCA 2011); Beckett v. DepÓt of Fin. Servs. , 982 So. 2d 94, 100

(Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treasurer ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

5 4 . The allegations of fact set forth in the

Administrative Complaint are the grounds upon which this

proceeding is predicated. Trevisani v. DepÓt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. DepÓt of

Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the

scope of this proceeding is properly restricted to those matters

as framed by Petitioner. M.H. v. DepÓt of Child. & Fam. Servs. ,

977 So. 2d 755, 763 (Fla. 2d DCA 2008).

D. Hearsay

Police Reports

5 5 . Section 90.803(8), Florida Statutes, entitled Public

Records and Reports, provides, in pertinent part, that:

Records, reports, statements reduced to

writing, or data compilations, in any form,

of public offices or agencies, setting forth

the activities of the office or agency, or

matters observed pursuant to duty i mposed by

law as to matters which there was a duty to

report, excluding in criminal cases matters

observed by a police officer or other law

enforcement personnel, unless the sources of

information or other circumstances show

their lack of trustworthiness.

5 6 . RespondentÓs statements as contained in the police

report of the November 20 - 21, 2015 , incident are hearsay, as is

the report itself. However, it would be admissible over

objection in a civil trial since it falls within the public

records hearsay exception in section 90.803(8). The public

records exception is limited to Ðmatters observed pursuant to

duty imposed by law as to matters whi ch there was a duty to

report.Ñ The police report, as substantiated by the testimony

of its author, falls squarely within the public records

exception.

5 7 . The hearsay exception established in section 90.803(8)

does not extend to police reports used i n criminal cases. The

reason, as stated by Professor Ehrhardt, Ðis based on the belief

that observations by officers at the scene of a crime or when a

defendant is arrested are not as reliable as observation by

public officials in other cases because of t he adversarial

nature of the confrontation between the police and the

defendant.Ñ Charles W. Ehrhardt, EhrhardtÓs Florida Evidence

§ 803.8 (2016 Ed.). This matter is not a criminal case, and the

statements in the report fall within an exception to the hearsay

rule, thus allowing reliance on them regardless of

corroboration.

Hospital Records

5 8 . S ection 90.803 (4) , entitled Statements for Purposes of

Medical Diagnosis or Treatment, provides that:

Statements made for purposes of medical

diagnosis or t reatment by a person seeking

the diagnosis or treatment, or made by an

individual who has knowledge of the facts

and is legally responsible for the person

who is unable to communicate the facts,

which statements describe medical history,

past or present sy mptoms, pain, or

sensations, or the inceptions or general

character of the cause or external source

thereof, insofar as reasonably pertinent to

diagnosis or treatment.

Here, RespondentÓs statements contained in the medical records

offered in evidence were made to medical personnel, and were

clearly made in connection with RespondentÓs diagnosis or

treatment. RespondentÓs statements, as reflected in the

authenticated hospital records, fall within section 90.803(4).

Admissions

59 . T he statements of Respondent, as reflected in the

police reports and hospital records, constitute RespondentÓs

Ðown statement[s] in either an individual or a representative

capacity,Ñ and thus fall within the purview of section

90.803(18).

Weight

6 0 . T he determination o f the weight to be given the police

report and hospital records , as is the case with all evidence,

remains within the province of the trier of fact.

E. Analysis

Count I

6 1 . Count I of the Administrative Complaint alleges that:

Respondent has violated Section

464.018(1)(i), Florida Statutes (2015), by

engaging or attempting to engage in the

possession, sale, or distribution of

controlled substances as set forth in

Section 893, for any other than legitimate

purposes.

6 2 . The Department presented clear and convincing evidence

to establish that Respondent engaged in the possession of

Dilaudid, a controlled substance, without a legitimate purpose.

Thus, Petitioner proved that Respondent violated section

464.018(1)(i) as alleged in Count I of the Adminis trative

Complaint.

Count II

6 3 . Count II of the A dministrative Complaint alleges that:

Respondent has violated Section

464.018(1)( j ), Florida Statutes (2015), by

being 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.

6 4 . T he Department presented clear and convincing evidence

to establish that Respondent was diagnosed with severe opioid

use disorder ; that based on RespondentÓs diagnoses as well as

her medical and drug use history, she is unable to practice

nursing with reasonable skill and safety to patients . Thus ,

Petitioner proved that Respondent violated section 464.018(1)( j )

as alleged in Count I I of the Administrative Complaint.

6 5 . T he Department further proved, by clear and convincing

evidence , that Respondent will not be able to practice nursing

with reasonable skill and safety to patients until she undergoes

treatment a t a residential treatment center followed by

outpatient treatment; enters into an IPN monitoring agreement;

undergoes random toxicology testing; and has a documented

extended period of abstinence from controlled substances.

F. Penalty

6 6 . Pursuant to se ction 456.072(2), the Board of Nursing

may impose one or more of the following penalties: suspension

or permanent revocation of a license; restriction of practice of

license; imposition of an administrative fine; issuance of a

reprimand or letter of conce rn; placement of the licensee on

probation for a period of time; corrective action; and remedial

education.

6 7 . Florida Administrative Code Rule 64B9 - 8.006(3)(g)

establishes the range of penalties for a first offense of

s ection 464.018(1) (i) or section 46 4.018(1)(j) is from a $250

fine, suspension, and IPN evaluation to a $500 fine and

suspension.

6 8 . Rule 64B9 - 8.006(5)(b) establishes the following

aggravating and mitigating circumstances :

a. The danger to the public .

b. Previous disciplinary action against the

licensee in this or any other jurisdiction .

c. The length of time the licensee has

practiced .

d. The actual damage, physical or

otherwise, caused by the violation .

e. The deterrent effect of the penalty

imposed .

f. Any efforts at rehabilitation .

g. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations .

h. Cost of treatment .

i. Financial hardship .

j. Cost of disciplinary proceedings.

69 . Factors (a) , (e), and (g) are aggravating factors in

this case. Factors (b) and (i) are mitigating factors in this

case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Nursing , enter a final order :

a) determining that Respondent violated sections

464.018(1)(i) and 464.018(1)(j);

b) imposing a suspension of license number RN 9375240 for

one year and thereafter until such time as Respondent personally

appears before the Board and can demonstrate the present ability

to engage in the safe practice of nursing, with such

demonstration to include at least one IPN evaluation in which

the ev aluator finds Respondent to be able to engage in the safe

practice of nursing or recommend the conditions under which safe

practice could be attained;

c) requiring compliance with IPN recommendations and

contract conditions , as imposed ;

d) imposing an administrative fine in the amount of

$250.00; and

e) awarding costs incurred in the prosecution of this case

to the Department.

DONE AND ENTERED this 29th day of November , 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 29th day of November , 2016 .

COPIES FURNISHED :

Lisa Michelle Jackson

2356 York Street

Jacksonville, Florida 32207 - 3541

(eServed)

Rob F. Summers, Esquire

Brynna J. Ross, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., Executive Director

Department of Health

4052 Bald Cypress Way, Bin C 02

Tallahassee, Florida 32399 - 1701

(eServed)

Jody Bryant Newman, EdD, EdS

Department of Health

4052 Bald Cypress Way, Bin C 02

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.