STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-285

)

MADELINE GERARDO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in the Marion Community Hospital in Ocala, Florida, on May 24, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on an administrative complaint filed by the Florida State Board of Nursing against the Respondent, Madeline S. Gerardo, alleging that Gerardo was guilty of unprofessional conduct and had been convicted of a felony under the laws of the State of Florida, said conduct violating Section 464.21(1), Florida Statutes.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Madeline S. Gerardo, pro se

Box 1124

Belleview, Florida 32620 FINDINGS OF FACT

1. Madeline S. Gerardo is a licensed practical nurse holding License #29985-1 issued by the Florida State Board of Nursing.

   
   

2. Madeline Gerardo (also known as Madeline Akoboff) entered a plea of nolo contendere to three counts of grand larceny, a felony under the laws of the State of Florida. Gerardo's plea was entered, and she was sentenced to 18 months in a state penitentiary on April 25, 1975. The Florida State Board of Nursing brought the pending charges against Gerardo in January, 1979.

   
   

3. Gerardo was employed at New Horizons Convalarium in Ocala, Florida, from August 1, 1978, until October 21, 1978, when she terminated her employment due to an injury. On or about September 13 or 14, 1978, Gerardo failed to change the bandages on a patient named Graff. Gerardo was counseled by the director of nursing concerning her failure to change the bandages. Gerardo denied having failed to change the bandages and stated to the director of

   nursing that she would be more careful in the future. Thereafter, Gerardo's care of patients improved.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Florida State Board of Nursing charges Madeline Gerardo with violation of Section 464.21(1), Florida Statutes, alleging that she was convicted of a felony under the laws of the State of Florida. The facts reflect that while Madeline Gerardo was convicted of grand larceny, a felony under the laws of the State of Florida, on April 25, 1975. The pending charges were brought by the Florida State Board of Nursing in January, 1979. Although such a prosecution is not barred by the running of time, as the court stated In re Weathers, 31 So.2d 543:

   
   

   The charge against Dr. Weathers is based on an act alleged to have occurred on the 3rd day of June, 1942. The charge was made before the Board against the doctor on the 26th day of October, 1946, or four (4) years, four (4) months and twenty-three (23) days after the matter charged was alleged to have occurred. This was an unconscionable time

   to wait to begin these proceedings, but we find no statute of limitations which bar such proceedings because of the running of time. (Emphasis supplied)

   
   

5. Gerardo was convicted for an offense that did not relate to her practice of nursing. She served her sentence and since her release has been licensed and practiced as a licensed practical nurse. The only complaint against her in the intervening period is that she failed to change a patient's bandage in accordance with doctor's orders. She was counseled by her nursing director for her failure, and her care for patients improved thereafter. She continued in the same position for approximately 30 days after this incident, although a portion of that time she was out sick. While her conduct may be considered "unprofessional conduct," the seriousness of her failure is indicated by the action of her supervisor which was limited to counseling her. It is notable that Gerardos work improved thereafter.

   
   

6. The language of Section 464.21(1), supra, grants authority to the State Board of Nursing to revoke an individual's license when they have been convicted of a felony under the laws of the State of Florida. However, in determining the legislative intent regarding imposition of such penalties on persons convicted of felonies, it is necessary to also consider Section 112.011, Florida Statues. Section 112.011, supra, provides that if a person's civil rights have been restored he may not be denied a license unless the crime of which he was convicted was a felony or first degree misdemeanor directly related to the profession or occupation in which he seeks licensure. This statute reflects the legislative intent not to continue to penalize persons convicted of crimes who have paid their debt to society. In the instant case, Gerardo was convicted and served the sentence imposed upon her. During a period of work release and after serving her sentence Gerardo practiced nursing without incident except as noted above. As the court in Weathers, above, stated, it is unconscionable at this time to revoke Gerardo's license, although potentially within the Board's power to do so.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the Florida State Board of Nursing give Madeline Gerardo a letter of official reprimand for her unprofessional conduct and place her on probation for a period of one year. For the other violation, the Hearing Officer would recommend an additional one year's probation to run concurrent with the probation assessed for unprofessional conduct.

DONE and ORDERED this 11th day of June, 1979, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

Geraldine B. Johnson, R. N.

111 East Coastline Drive Jacksonville, Florida 32202

Madeline S. Gerardo, L. P. N. Box 1124

Belleview, Florida 32620

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

Madeline S. Akoboff Gerardo

1. Box 1124

   Belleview, Florida 32620 CASE NO. 79-285 As a Licensed Practical Nurse

   License Number 29985-1

   /

   ORDER

   
   

   This matter came on for final action by the Florida State Board of Nursing on the 20th day of August, 1979, at 111 Coast Line Drive East, Suite 508, Jacksonville, Florida.

   
   

   The Board, having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of hearing proceedings, the Findings of Fact, Conclusions of Law, and Recommended Order of the Hearing Officer, adopts the Findings of Fact, Conclusions of Law, and Recommended Order of the Hearing Officer and IT IS THEREFORE:

   
   

   ORDERED AND ADJUDGED that the licensed practical nurse license number 29985-1 of the Respondent, Madeline S. Akoboff Gerardo, be issued an official reprimand for her unprofessional conduct. It is further ordered that license number 29985-1 of the Respondent, Madeline S. Akoboff Gerardo, be placed on

   probation for a period of two (2) years with the following terms and conditions:

   
   

   1. That the Respondent refrain from violation of any law, Federal, State, or Local.

      
      

   2. That the Respondent inform the Florida State Board of Nursing immediately of any change of address or change of employment.

The failure to comply with the terms of said probation shall be deemed a violation.

DONE AND ORDERED this 29th day of August, 1979, at Jacksonville, Florida.

FLORIDA STATE BOARD OF NURSING

By: Dorothy C. Stratton, R.N. President

BOARD SEAL

COPIES FURNISHED:

Madeline S. Akoboff Gerardo

P.0. Box 1124

Belleview, Florida 32620 Julius Finegold, Esquire

Docket for Case No: 79-000285

Orders for Case No: 79-000285