STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0370

)

MARION JOE HENRY ALLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this case came to be heard in St.

Petersburg, Florida, on June 11, 1985, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esq.

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Darryl Ervin Rouson, Esquire

556 1st Avenue North

St. Petersburg, Florida 33701

The Department of Professional Regulation, Petitioner, has filed an Administrative Complaint before the Board of Nursing alleging that Marion Joe Henry Allen, Respondent, violated Rule 210-10.05(2)(d), F.A.C., by falsely answering a question on her employment application with Beverly Manor Convalescent Center concerning prior convictions of a crime. It is also alleged that she violated Sections 464.018(1)(f), (g) and ( ), F.S. (1983), by exhibiting unprofessional conduct and by diverting Tylenol #2 and Tylenol #3, controlled substances, for her personal use between May 1982 and May 1984 while employed at Beverly Manor.

At the hearing, Petitioner called five witnesses and introduced nine exhibits. Respondent was called to testify on her own behalf and also introduced two exhibits. A transcript of the hearing was filed July 10, 1985. Prior to commencing its case in chief, Petitioner moved to have the matters contained in Petitioner's Request for Admissions filed May 3, 1985, deemed . admitted since there had been no response thereto. Pursuant to Rule 1.370(a), F.R.C.P., matters shall be deemed admitted unless the party to whom the request is directed serves answers or objections within thirty days after service. However, Rule 1.370(b) allows matters which have been admitted to be withdrawn or amended when there will be no prejudice to the party who obtained the admission. Accordingly, Petitioner's motion to deem admitted was granted, but Respondent was further allowed to withdraw admissions to paragraphs 6, 7, 9, 10, 11, 21 and 22, and the matters contained in those paragraphs are therefore not deemed admitted.

During the course of its case in chief, Petitioner sought the introduction of Exhibit P-7 which is a polygraph examination report dated May 9, 1984, concerning Respondent, and an accompanying waiver signed by Respondent. Petitioner offered Exhibit P-7 only for the matters set forth under "post-test statement" as well as pre-test introductory information, and specifically excluded from the report the matters set forth under "Examiners Opinion" and "Relevant Questions Asked and Responses Received." A ruling on the admissibility of the pre- test information and "post-test statement" portions of the polygraph examination report was reserved at the hearing and both parties, by agreement, were allowed to submit posthearing memoranda on the admissibility of Exhibit P-7, as offered.

After having reviewed the memorandum which Petitioner submitted and considering argument of both counsel presented at the hearing, it is the ruling of the undersigned Hearing Officer that Exhibit P-7, as offered, is admitted on the authority of Hostzclaw v. State, 351 So. 2d 970 (Fla. 1977) and Burch v.

State, 343 So. 2d 831 (Fla. 1977).

The parties were allowed to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., F.S., but only Petitioner timely filed proposed findings. A ruling on each proposed finding of fact has been made, either directly or indirectly, in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a practical nurse in Florida with license number 28131-1. Respondent's license was previously suspended for a two year period from 1975 to 1977 but has been active since that time.

   
   

2. On or about February 7, 1975, Respondent entered a plea of guilty to a charge of grand larceny in Case No. 74-3162, Circuit Court, Pinellas County. Adjudication of guilt and imposition of sentence were withheld, but the Court ordered Respondent to be placed on probation for five years.

   
   

3. On or about March 24, 1977, Respondent was arrested and charged with grand larceny, to which she plead nolo contendere in Case No. 77-1689, Circuit Court, Pinellas County. On April 15, 1977, Respondent's probation officer executed an affidavit of probation violation as a result of the March 24, 1977 grand larceny charge, and Respondent subsequently entered a plea of guilty to the charge of violation of probation. Respondent was adjudicated guilty of the crime of grand larceny and also violation of probation on September 21, 1977, and was sentenced to one year in jail, with all but sixty days suspended and with credit for six days already spent in jail. Respondent was also placed on probation for three years.

   
   

4. On August 16, 1978, Respondent completed an employment application for a nursing position at Beverly Manor Convalescent Center. In response to a question on the application, "Have you been convicted of a crime in the past ten (10) years?", Respondent checked the box for "No". Respondent was employed at Beverly Manor from the Fall, 1978, until May 15, 1984, when she was terminated for her failure to reveal her prior conviction of a crime on her employment application. Respondent's performance evaluations while at Beverly Manor were generally "satisfactory" to "very good", although she did receive four written warnings and a three day suspension during 1983 and 1984. On her employment application, Respondent also falsely indicated she was employed at Sunshine Nursing Home in 1975 and 1976 during a time when her license was suspended.

   
   

5. The only evidence presented concerning the charge that Respondent diverted Tylenol #2 and Tylenol #3 for her own use from 1982 to May, 1984 was the "post test statement" contained in the polygraph examination report, Exhibit P-7. Respondent denies making the statement contained therein. She testified

   that at the end of the examination she answered what she understood to be a hypothetical question from the examiner about whether it was possible for a nurse to divert controlled substances. Her response was that it was possible, hypothetically, for nurses to do this, but she denies ever having actually taken these controlled substances for her own personal use. However, she did admit to taking Tylenol #2 and Tylenol #3 for other employees of Beverly Manor and giving it to them when they were not feeling well on particular days at work. Respondent's testimony on this point was very credible and convincing, and having weighed the evidence, it is the finding of the undersigned Hearing Officer that Respondent did not take controlled substances for her own personal use, but she did divert Tylenol #2 and #3 for other employees.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), F.S.

   
   

7. The Board of Nursing has adopted Rule 210-10.05(2)(d), F.A.C., which allows license disciplinary action to be taken if a

   licensee:

   
   

   Has falsely misrepresented the facts on the patient records, including, but not limited to, patient charts, narcotic records, medication administration records, or on applications for employment as a nurse or otherwise misrepresented the facts on records relating directly to the patient. (Emphasis supplied)

   
   

8. In pertinent part Section 464.018(1), F.S., provides that the following are grounds for disciplinary action:

   
   

   1. 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.

      
      

   2. 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.

      
      

      * * *

      
      

      (j) Willfully or repeatedly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

      
      

9. Petitioner has the burden of proof in this license disciplinary case and must prove, clearly and convincingly, that the alleged violations of the above-cited rule and statute occurred. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981); Robinson v. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3rd DCA 1984) Sneij v. Department of Professional Regulation, 454 So. 2d 795 (Fla. 3rd DCA 1984).

   
   

10. The evidence presented at the hearing clearly and convincingly establishes that in 1978 Respondent falsely answered a question on her employment application with Beverly Manor Convalescent Center concerning her prior convictions of a crime in 1977 for which she was sentenced to serve sixty days in jail and was placed on three years probation. She also falsely indicated a prior employment when her license was under suspension. It is not likely that Respondent forgot about this conviction from the prior year, or that she would have failed to understand that she had been convicted of a crime due to time she spent in jail and on probation. Respondent concealed her prior criminal convictions in falsely completing her employment application, and also falsely misrepresented facts about prior employment, and is therefore subject to disciplinary action for a violation of Rule 210-10.05(2)(d). These errors appear to be so obvious as to constitute willful misrepresentations in violation of this rule. Therefore Respondent has also violated Section 464.018(1)(j), F.S.

    
    

11. It has also been established that Respondent diverted Tylenol #2 and #3 for unauthorized use by other employees at Beverly Manor. Respondent was charged with such diversion for her own personal use. This did not occur. However, it was also specifically alleged that Respondent possessed controlled substances for other than legitimate purposes in violation of

Section 464.018(1)(g), F.S. This did occur, and therefore the facts also establish that Respondent is subject to disciplinary action for a violation of Section 464.018(1)(g). These actions also constitute unprofessional conduct as defined in Rule 210- 10.05(2)(e), in violation of Section 464.018(1)(f), F.S.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued suspending Respondent's license for a period of three years.

DONE and ENTERED this 29th day of July, 1985 at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 480-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1985.

COPIES FURNISHED:

Judie Ritter, Executive Director Board of Nursing

Room 504

111 East Coastline Drive Jacksonville, Florida 32202

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Darryl Ervin Rouson, Esquire

556 1st Avenue North

St. Petersburg, Florida 33701

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street_ Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000370

Orders for Case No: 85-000370