STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2272

)

RICHARD J. WOMACK, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on November 15, 1983, in Tavares, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Julia P. Forrester, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard J. Womack, pro se

1607 Stafford Road

Leesburg, Florida 32758

The Petitioner, Department of Professional Regulation, Board of Nursing seeks to revoke, suspend or take other disciplinary action against the Respondent's licensure as a licensed practical nurse on grounds that the Respondent, in applying for employment as a nurse at Leesburg Center Health Care and Nursing Home, falsified his application for employment by falsely stating the reason he had left his former employment at the Polk County Sheriff's Department, and for the reason that on or about February 8, 1983, he was discovered asleep while on duty. The Petitioner thus charges that the Respondent is guilty of unprofessional conduct which is not in accord with minimal standards of acceptable and prevailing nursing practice as required by Section 464.018(1)(f), Florida Statutes (1981) and that be willfully violated a rule of the Board, Rule 210-10.05(2)(d), Florida Administrative Code and thus has concomitantly violated Section 464.018(1)(j), Florida Statutes (1981).

At the hearing the Petitioner presented the testimony of John Spanogle, Floyd Hulsey, and Ann Atkinson. By stipulation of the parties the Petitioner submitted the testimony of Shirley Gooden and Lt. Rod Groom by late filed deposition. The Petitioner presented seven exhibits, all of which were admitted into evidence. The Respondent presented his own testimony and that of James Cavatello, his supervising licensed practical nurse at times pertinent to the Administrative Complaint. The Respondent also presented one exhibit which was a composite exhibit consisting of his employment evaluations, honorable discharge

certificate from the armed services and certificates concerning his completion of various training programs, as well as a letter of recommendation, all of which were stipulated into evidence.

The issue presented concerns whether the Respondent violated the above cited authority and if so, what penalty, if any, should be imposed.

At the conclusion of the proceeding the parties stipulated that the record remain open 45 days so that depositions of Shirley Gooden, former nursing director at Leesburg Center Health Care and Nursing Home and Lt. Rod Groom of the Department of Corrections could be taken and submitted into evidence.

Additionally, the parties were given an opportunity to submit proposed findings of fact and conclusions of law which were submitted by the Petitioner. Those proposed findings of fact and conclusions of law have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they have been accepted. To the extent that the proposed findings of fact and conclusions of law are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings and conclusions herein it is not credited. See Sonny's Italian Restaurant vs. Department of Business Regulation, 414 So. 2d 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club vs. Orlando Utilities Commission, 436 So. 2d

383 (Fla. 5th DCA 1983).

FINDINGS OF FACT

1. The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards.

   
   

2. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing.

   The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep.

   
   

3. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 464.018(1)(f), Florida Statutes (1981), provides that a nurse may be disciplined for unprofessional conduct which shall include, but not be limited to, any departure from or failure to conform to minimal standards of acceptable and prevailing nursing practice, in which case an actual injury need not be established. Although it has been charged and proven that the Respondent was asleep on the premises while employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home, it has not been established that he was on duty when he was asleep. Rather, the Respondent and his supervisor established that he was on his break from duty at the time he was discovered asleep by the nursing supervisor. Although the nursing handbook distributed to employees of that facility requires that anytime they leave duty that they "punch out" or make a record of their departure from their duties, the long accepted and prevailing policy and practice at Leesburg Center Health Care and Nursing Home was that nurses need not "punch out" when merely going on breaktime. Indeed, the Respondent's supervisor established that he had specifically authorized the Respondent in this instance to sleep while on his break and that he himself did not "punch out" when leaving his duty to go on break nor did he require it of the Respondent or any other nurses under his supervision. Thus it has not been established that the Respondent was sleeping while on duty as a nurse at Leesburg Center Health Care and Nursing Home.

   
   

5. There is no question however, that the Respondent applied for employment as a nurse at Leesburg Center Health Care and Nursing Home and falsified a portion of that application by listing his reason for leaving his last employment as being for the purpose of returning to school. In fact, the Respondent was terminated from his position for falsifying a Sheriff's Department record and for conduct unbecoming an employee of the Sheriff's Department. Section 464.018(1)(j), Florida Statutes (1981), provides that a nurse may be subjected to disciplinary action for willfully violating a rule of the Board. Rule 210.10.05(2)(d), Florida Administrative Code, prohibits a nurse from falsely misrepresenting the facts on an application for employment as a nurse. There bring no question that the Respondent falsified a portion of his application for employment as a nurse with Leesburg Center Health Care and Nursing Home, he clearly is in violation of this rule and concomitantly the statutory section cited last above. In view of his otherwise untarnished record

as a licensed practical nurse with regard to the performance of his duties, the severe penalty of revocation or suspension of his licensure is not warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing.

DONE and ENTERED this 14th day of March, 1984, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1984.

COPIES FURNISHED:

Julia P. Forrester, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Richard J. Womack 1607 Stafford Road

Leesburg, Florida 32758

Helen P. Keefe, Executive Director Board of Nursing

Dept. of Professional Regulation

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002272

Orders for Case No: 83-002272