STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

vs. ) Case No. 86-1866

) 86-2208

KATHERINE T. LEIGH, ) 86-4096

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing on February 9, 1987, in Tallahassee, Florida. The issue for determination is whether Respondent's license as a Registered Nurse should be revoked, suspended or otherwise disciplined based on the allegations contained in the Administrative Complaints filed in Division of Administrative Hearings Case Nos. 86-1866, 86- 2208 and 86-4096 and dated June 7, 1985, April 10, 1986 and August 21, 1986 respectively.

APPEARANCES

For Petitioner: Gary Beatty, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Wilson Jerry Foster, Esquire

First Florida Bank Building, Suite 616 Tallahassee, Florida 32301

BACKGROUND

This consolidated proceeding involves three (3) Administrative Complaints filed against the Respondent wherein the Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's license as a registered nurse. As grounds therefor it is alleged: (1) in the first complaint dated June 7, 1985, filed with the Division of Administrative Hearings on May 21, 1986, that Respondent violated the terms of probation set out in the Board of Nursing's (Board) Final Order of March 5, 1985 by failing to submit to random blood or urine screens upon request, failing to notify the Board of changes in residence and employment addresses, and failure to continue counseling and attendance at Alcoholics Anonymous and failure to report these activities to the Board which violates Section 464.018(1)(j), Florida Statutes; (2) in the second complaint dated April 10, 1986, filed with the Division of Administrative Hearings on June 17, 1986, that the Respondent violated the terms of probation set out in the Board's Final Order of March 5, 1985 by failing to pay the administrative fine assessed in that order within the sixty (60) days allotted to pay such fine which violates Section 464.018(1)(j), Florida Statutes and; (3) in the third complaint dated

August 21, 1986, filed with the Division of Administrative Hearings on October 30, 1986, that Respondent's plea of nolo contendere to a charge of obtaining or attempting to obtain a controlled substance by fraud, in violation of Section 893.13(3)(a)(1), Florida Statutes, violates Section 464.O18(1)(c)(g), Florida Statutes, and is also a violation of the term of probation not to violate any Florida law as set out in the Board's Final Order of March 5, 1985 which violates Section 464.018(1)(j), Florida Statutes.

In support of the charges, Petitioner presented the testimony of Mary Nikodem, Ann Catanzarite, Thomas K. Hannah, Mary L. Willis and the Respondent. Petitioner's Exhibits A through F were received into evidence. Respondent testified on her own behalf and presented the testimony of William Trimble Kepper, M.D., Dorothy Turnage Elmann, R.N., and Kay L. Allen, Ph.D. Respondent's Exhibits 1 through 7 were received into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

Facts Relevant to all Three Cases

1. At all times material to this consolidated proceeding the Respondent was a licensed registered nurse (RN) in the state of Florida, license number 1272942.

   
   

2. On March 5, 1985 the Board entered a Final Order placing the Respondent on probation for three (3) years conditioned-upon her compliance with certain terms of the order.

   
   

3. Respondent was present at the informal hearing on February 7, 1985 and heard the Board's decision that resulted in the Final Order of March 5, 1985, but did not receive a copy of the order until March 19, 1985.

   
   

4. Respondent was employed by Tallahassee Convalescent Home (TCH) in December, 1985. At the time Respondent was employed by TCH she failed to advise TCH of her disciplinary problems with the Board. TCH would not have hired Respondent had it known at the time of hiring that Respondent had disciplinary problems with the Board. However, when the disciplinary problems were discovered by TCH in March, 1986, a decision was made to continue her employment due mainly to her exemplary employment record at TCH and because she was earnestly rehabilitating herself through counseling, attending Alcoholics Anonymous and Narcotics Anonymous meetings and staying clean of drugs.

   
   

5. Respondent's reason for not advising TCH of her disciplinary problem with the Board was due to her inability to obtain employment when she had previously advised potential employers of her disciplinary problem. Also, Respondent felt that if she could secure the job first, her ability to perform and her job performance along with her seeking outside counselling, would override the negative effect of her disciplinary problem.

6. Since Respondent's employment with TCH in December, 1985, the record is clear that she has experienced no further problem in complying with the Board's order of March, 1985 and remains "clean" of drugs and alcohol.

   
   

7. The record is clear that TCH has confidence in Respondent's ability to perform her duties as a registered nurse without fear for the health and safety of the public. TCH places a great deal of trust in the Respondent and the trust has not been misplaced.

   
   

8. The record is clear that since her arrest in September, 1985, Respondent has successfully worked towards her drug rehabilitation by avoiding all drugs and alcohol, establishing a positive work relationship, engaging in individual counselling with a therapist specializing in chemical dependency twice monthly, participating in Alcoholics and Narcotics Anonymous meetings weekly and participating in an Impaired Nurse Group weekly.

   
   

   Facts Relevant to Case No. 86-1866

   
   

9. The Board's Final Order of March 5, 1985, required, among other things, that the Respondent, as a condition of her continued probation, to: (a) submit to random blood or urine tests upon request; (b) report to the Board by certified mail any change in residence address or employment address within ten

   (10) working days; (c) continue attending Alcoholics Anonymous meetings and cause verification of such attendance and participation to be furnished to the Board every three (3) Months as scheduled by the probation officer, and; (d) obtain or continue counseling with a psychiatrist, psychologist or other recognized drug/alcohol rehabilitation program and cause progress reports to be furnished to the Board every three (3) months while treatment is continued as scheduled by the probation officer.

   
   

10. The evidence in the record is insufficient to show that the Respondent failed to properly or timely notify the Board of changes in residence addresses or employment addresses.

    
    

11. The evidence in the record is insufficient to show that the Respondent failed to attend Alcoholics Anonymous meetings or to properly and timely verify to the Board her attendance and participation in these meetings.

    
    

12. The evidence in the record is insufficient to show that the Respondent failed to obtain or continue counseling as required by the order or to properly and timely' notify the Board of such counseling.

    
    

13. The period of time in which the Respondent is alleged to have refused a request for urine test is during March, 1985.

    
    

14. The record is clear that Respondent refused a request by Petitioner for a urine sample during March, 1985. Respondent's testimony, which I find credible, was that she was experiencing a gynecologic problem during this time which resulted in her having trouble passing urine, and she did not see the necessity for being put through the pain of catheterization as requested.

    
    

15. There was testimony by Thomas Hannah that Respondent was evasive about giving a urine sample during the period of March 18, 1985 and March 28, 1985, which I find credible, but his testimony was inconclusive as to her reason for

    refusal. From Hannah's testimony, it appears that after leaving a message with "a male" at Respondent's address who was reportedly her brother, Hannah made no further follow-up and did not have any further contact with Respondent until approximately a year later.

    
    

    Facts Relevant to Case No. 86-2208

    
    

16. The Board's Final Order of March 5, 1985 required, among other things, that the Respondent pay an administrative fine of $300.00 within 60 days. It can only be assumed, and correctly so, that "within 60 days" meant within 60 days of the date of the order.

    
    

17. Respondent made an initial payment of $150.00 in March, 1986 and a final payment of $150.00 in August, 1986, well outside the 60 days allotted for payment.

    
    

18. By letter dated May 21, 1985, some 77 days after the entry of the order and some 63 days after receipt of the order by Respondent, Respondent requested a 90 day extension of time for paying the fine which was never acted on by Petitioner.

    
    

19. Respondent's reliance on her May 21, 1985 request for extension of time and her poor financial status resulted in Respondent's failure to comply with the order and pay the fine within the allotted 60 days.

    
    

    Facts Relevant to Case No. 86-4096

    
    

20. The Board's Final Order of March 5, 1985 required, among other things, that the Respondent not violate any federal or state law or any rule or order of the Board.

    
    

21. On March 19, 1986, Respondent pled nolo contendere to a September, 1985 charge of obtaining or attempting to obtain a controlled substance by fraud, a third degree felony, in violation of Section 893.3(3)(a)1, Florida Statutes. Adjudication of guilt was withheld and Respondent was placed on three

    (3) years probation. Respondent's probation required, among other things, that she perform a required amount of public service and obtain counselling and testing as directed by probation officer. The record reflects that Respondent is complying with the terms of her probation.

    
    

22. The underlying facts surrounding the charge was that Respondent, due to the emotional and mental stress of her father's death, her inability to secure employment in Louisiana or Florida due to disciplinary problems with the Board, no family support and her poor financial status, attempted to impersonate a doctor over the phone to obtain tylenol 3, a controlled substance.

    
    

23. Ann Catanzarite, a registered nurse and consultant to Florida's Impaired Nurses Program, who qualified as an expert on the standards of the practice of nursing and substance abuse, opined, and I find her opinion to be credible, that the crime of attempting to obtain a controlled substance by fraud relates to the practice of nursing. Her rationale is that a crime such as this one involves impaired judgment which affects the nurse's ability to function and make correct decisions concerning the safety and care of the patients.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

    
    

25. Section 464.018(2), Florida Statutes, empowers the Board to revoke, suspend or otherwise discipline the license of the Respondent if she is found guilty of any one of those enumerated acts listed in Section 464.018(1), Florida Statutes.

    
    

26. The Administrative Complaints filed herein, collectively charged the Respondent with the failure to comply with certain terms of probation set out in the Board's Final Order of March 5, 1985 which violates of Section 464.018(1)(j), Florida Statutes and of having entered a plea of nolo contendere to a crime which directly relates to the practice of nursing in violation of Section 464.018(1)(c), Florida Statutes and engaging or attempting to engage in the possession, sale or distribution of a controlled substance in violation of Section 464.018(1)(g), Florida Statutes.

    
    

27. Section 464.018(1)(c)(9)(j), Florida Statutes, provides:

    
    

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       * * *

       (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. A plea of nolo contendere shall be considered a conviction for purposes of this provision.

       * * *

       (g) 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.

       
       

28. Petitioner has failed to meet its burden to show that Respondent violated the terms of the Board's Order of March 5, 1985 by failing to notify the Board of any change in her residence or employment addresses and by failing to report her continued counseling and attendance at Alcoholics Anonymous meetings to the Board. Although the Board has shown that Petitioner refused to submit to one (1) urine test, the Respondent has shown justification for her refusal. Therefore, the Board has failed to show a violation of Section 464.018(1)(j), Florida Statutes in this regard and the charges set forth in the Administrative Complaint dated June 7, 1985 and assigned the Case No. 86-1866 should be dismissed. In fact, the Petitioner stipulates in its Proposed

    Recommended Order that it has failed to meet its burden of proof in regard to Respondent's failure to notify the Board of her change in address and failure to attend A.A. meetings and failure to continue counselling or to notify the Board of these activities.

    
    

29. Petitioner has shown that Respondent failed to timely pay the administrative fine as charged in the Administrative Complaint dated April 10, 1986 and assigned Case No. 2208. However, the fine was paid, even though a year late, and there was a reasonable explanation for the untimeliness of payment. Therefore, Respondent's action would not come within the language of Section 464.018(1)(j), Florida Statutes, requiring a willfullness on the part of Respondent or a showing of a repeated violation. The Petitioner having failed to show that Respondent's action in the untimely payment of the fine was a willful or repeated violation, the charges set forth in the Administrative Complaint dated April 10, 1986 and assigned Case No. 86-2208, should be dismissed.

    
    

30. Petitioner has met its burden to show that Respondent is guilty of the charges as set out in the Administrative Complaint dated August 21, 1986, and assigned Case No. 86-4096, thereby in violation of Section 464.018(1)(c)(a)(j), Florida Statutes and subject to the penalties in Section 464.018(2), Florida Statutes.

    
    

31. Rule 100-10.005, Florida Administrative Code, sets forth disciplinary guidelines to be used in assessing a penalty upon a registered nurse. Paragraph (1)(a)-(k) thereof prescribes the factors that may be taken into account in determining appropriate disciplinary action.

    
    

32. In reviewing these factors, under the facts of this case, it is apparent that some of the factors would allow leniency whereas others would allow a harsher penalty. However, in this case, the Respondent's efforts of rehabilitation since her arrest, and her present employer's confidence and trust in her, suggest that any penalty imposed should be directed at furthering her rehabilitation.

RECOMMENDATION

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

RECOMMENDED that the Board of Nursing enter a Final Order finding Respondent guilty as charged in the Administrative Complaint dated August 21, 1986, assigned Case No. 86-4096 and that her registered nurse's license be suspended for a period of three (3) years, stay the suspension, place Respondent on probation for a period of three (3) years under conditions the Board feels is appropriate, and assess an administrative fine of $500.00 to be paid within six

(6) months of the date of the Final Order.

It is further RECOMMENDED that Administrative Complaint dated June 7, 1985 and April 10, 1986, Assigned Case Nos. 86-1866 and 86-2208, respectively, be DISMISSED.

DONE AND ORDERED this 3rd day of April, 1987, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1866

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1.-2. Adopted in Finding of Fact 1.

1. Adopted in Findings of Fact 3 and 16.

2. Adopted in Finding of Fact 20.

3. Adopted in Finding of Fact 17.

4. Adopted in Findings of Fact 18 and 19.

5. Adopted in Findings of Fact 21, 22 and 23.

6. Adopted in Findings of Fact 14, 15 as clarified.

7. Adopted in Findings of Fact 10, 11 and 12.

8. Rejected as immaterial and irrelevant. The Memorandum in Support of Proposed Recommended Order and incorporated by reference is rejected as a legal argument and not treated as a finding of fact.

Rulings on Proposed Findings of Fact Submitted by the Respondent

Respondent did not number the findings of fact in consecutive numbered paragraphs, however, in this Appendix they are numbered in consecutive numbered paragraphs and paragraphs 13 through 16 represent the second group of findings, paragraph 17, represents the third group of findings and paragraphs 18-26 represents the fourth group of findings.

1. Adopted in Finding of Fact 1.

2. Rejected as immaterial and irrelevant as the charge was failure to submit to urine test which Respondent, did and is covered in Findings of Fact 14 and 15.

3. Adopted in Finding of Fact 10 as clarified.

4. Adopted in Findings of Fact 11 and 12 as clarified.

5. Adopted in Finding of Fact 3.

6. Adopted in Finding of Fact 18.

7. Adopted in Findings of Fact 10, 11 and 12 as clarified.

8. Rejected as irrelevant and immaterial.

9. Adopted in Findings of Fact 18 and 19.

10. The first sentence rejected as a legal conclusion. The tenor of second sentence is adopted throughout the findings of fact.

11. Rejected as not supported by substantial competent evidence in the record.

12. Rejected as immaterial and irrelevant.

13. Adopted in finding of fact 1.

14. Adopted in finding of fact 17.

15. Adopted in findings of fact 18 and 19.

16. Adopted in finding of fact 18.

17. Adopted in finding of fact 1.

18-20. Rejected as immaterial and irrelevant.

21. Rejected as immaterial and irrelevant except for the phrase concerning the impersonation of a physician and calling in a prescription which is adopted in finding of fact 22.

22-23. Rejected as immaterial and irrelevant.

1. Adopted in findings of fact 21 and 22.

2. Adopted in finding of fact 8.

3. Adopted in finding of fact 21.

COPIES FURNISHED:

Gary Beatty, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Fl 32399-07

Wilson Jerry Foster Suite 616

First Florida Bank Building Tallahassee, Fl 32301

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Fl 32301

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32301

Docket for Case No: 86-001866

Orders for Case No: 86-001866