STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4524

)

THALIA PENCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled action was held on December 7, 1987, in Tampa, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows: For Petitioner: Lisa M. Bassett, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

For Respondent: Thalia C. Pence, pro se

6017 West Hillsborough Tampa, Florida

BACKGROUND

The Administrative Complaint filed September 9, 1987, alleges that Respondent violated Section 464.018(1)(h), Florida Statutes, by being unable to practice nursing safely due to alcohol impairment. Respondent responded with a timely request for a formal hearing, and this proceeding resulted.

At the final hearing, Petitioner presented six witnesses and four exhibits, which were admitted without objection. Respondent testified in her own behalf and presented no other witnesses and no exhibits.

Petitioner submitted a Proposed Recommended Order for consideration.

Respondent submitted none. The attached Appendix details the treatment accorded to Petitioner's proposed findings.

FINDINGS OF FACT

1. Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989.

2. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care.

   
   

3. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work.

   
   

4. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision.

   
   

5. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program.

   
   

6. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week.

   
   

7. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well.

   
   

8. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned.

   
   

9. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in.

   
   

10. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program.

    
    

11. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan

    and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use.

    
    

12. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training.

    
    

13. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found.

    
    

14. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism.

    
    

15. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior.

    
    

16. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Sections 120.57(1) and 455.225(4), Florida Statutes.

    
    

18. Respondent is alleged to have violated the following pertinent part of Section 464.018(1)(h), Florida Statutes.

    
    

    Being unable to practice nursing with reasonable ... safety by reason

    of illness or use of alcohol...

    
    

    In order to revoke or suspend Respondent's license, Petitioner must prove its allegations by clear and convincing evidence. Turlington v. Ferris, 510 So.2d 292 (Fla. 1987).

    
    

19. There is no credible evidence of any errors or omissions attributable to Respondent during the periods of employment described above. However, there is uncontroverted evidence of extreme fatigue and recurrent absenteeism. The most logical explanation for both conditions is alcohol abuse. A portion of Respondent's absenteeism at John Knox Village Medical Center is attributable to her father's illness. However, Respondent admitted that she would not report to work when she felt that she could not adequately care for patients. Also, Respondent's father had been deceased for nearly a year when she began working at Centro Espanol Memorial Hospital.

    
    

20. Extreme fatigue presents a danger to patients. Falling asleep while on duty is an invitation to disaster. Recurrent absenteeism prevents Respondent from practicing nursing at all. Recurrent absenteeism also places patients at risk because of the stress placed on other nurses required to cover for the absent nurse.

    
    

21. Respondent's ability to practice nursing with reasonable safety has been impaired by reason of illness or use of alcohol.

    
    

22. The appropriate penalty must reflect both the absence of charting or care problems and the repeated failure of Respondent to follow through on her treatment. Also, the penalty should take into consideration that the INP recommendation for outpatient monitoring was for a term of two years following satisfactory psychological evaluation.

Based on the foregoing, it is hereby

RECOMMENDED that Respondent be placed on probation with the conditions that she immediately commence treatment under ACTS, INP, or such other program as Petitioner recommends; that she submit to random urine and blood screens during the term of probation; that she comply with and satisfactorily complete her entire treatment program including aftercare and comply with all requirements placed upon her under the program; that she remain free of alcohol and illicit drugs during the term of probation; and that the term of probation shall end, if the above conditions are satisfied on the second anniversary of Respondent receiving a psychological evaluation certifying Respondent's readiness to begin the two-year period for monitoring recovery.

ENTERED this 7th day of January, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 7th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4524 TREATMENT ACCORDED PETITIONER'S PROPOSED FINDINGS

Proposed Findings 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 18, 23,

25, 26 and 27 are accepted.

Proposed Findings 14, 17 (last sentence), 19, 20, 21 and 22 are rejected as irrelevant.

Proposed Finding 9 is rejected, except for the last two sentences which are accepted, as unsupported by the evidence. Testimony of alcohol on Respondent's breath was generally unclear and unconvincing. Until the incident cited in No.

5 of the Findings set forth in the Recommended Order, the witnesses for John Knox Village Medical Center were vague and uncertain as to whether the alcoholic smell was fresh or stale or whether a distinct smell of mouthwash or candy was disguising alcohol. Without direct and unambiguous evidence of the effects of intoxication, such as slurred speech or unsteady walk, the evidence of fresh alcohol on one's breath must be clear and convincing if it is to stand alone as proof that a nurse has consumed alcohol while on duty.

Proposed Finding 17 (all but the last sentence) is rejected as unsupported by the evidence as to the date of the conversation and observation by Ms.

Boylan.

Proposed Finding 28 is rejected in part and accepted in part. The findings concerning alcohol on Respondent's breath are accepted as to the witnesses from Centro Espanol Memorial Hospital, but rejected for the reasons cited above for the other witnesses. Again, the evidence is not strong enough to sustain a finding that Respondent consumed alcohol while on duty at any time. The testimony cited in Finding No. 5 is strong enough to sustain a finding that Respondent consumed alcohol immediately before reporting to work. The opinions of Ms. Boylan and Ms. Myers are accepted only insofar as their ultimate conclusions are supported by specific evidence.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Thalia C. Pence

6017 West Hillsborough Tampa, Florida

Judie Ritter Executive Director Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0450

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0079290

DOAH CASE NO. 87-4524

THALIA PENCE,

Respondent.

/

ORDER

Respondent, Thalia Pence, holds Florida License No. 1074052 as a registered nurse. Petitioner filed an Administrative Complaint seeking revocation, suspension, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to s. 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.

The Board of Nursing met on October 20, 1988, in Tallahassee, Florida, to take final agency action. The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board accepts and adopts the Findings of Fact contained in the Recommended Order.

CONCLUSIONS OF LAW

The Board accepts and adopts the Conclusions of Law contained in the Recommended Order.

PENALTY

Upon review and consideration, the Board rejects the recommended penalty of probation as too lenient. As stated reasons for its increase of the recommended penalty, the Board relies upon Respondent's admission of her alcoholism on pages 90, 95 and 114 of the transcript of the proceedings held on December 7, 1987, the hearing officer's findings of fact in paragraph 15 on page 5 of the recommended order. Additionally, the Board relies upon a letter from Donna M. Donaghy, Alcoholism Specialist III of the ACTS program indicating a lack of motivation for counseling on the part of the Respondent resulting in ACTS having closed its file on Respondent.

The Board hereby orders that the Respondent's license as a registered nurse in Florida be suspended for a minimum of two (2) years, but that the suspension be stayed so long as the Respondent remains in, and satisfactorily completes the Intervention Project for Nursing (IPN). Respondent failure to remain and successfully complete the IPN shall result in suspension of her license for the remainder of the two years and until such time as she can demonstrate to the Board that she is no longer chemically dependant and is capable of safely engaging in the practice of nursing. Following the two year stayed suspension, Respondent shall be placed on probation for a period of two years subject to the following terms and conditions:

1. The licensee shall not violate Chapters 455 or 464 Florida Statutes, the rules promulgated pursuant thereto, or any other state or federal law, rule, or regulation relating to the practice or the ability to practice nursing.

   
   

2. The licensee will report any change in her address, telephone number, employment, employer's address or telephone number, or any arrests, immediately, by telephone and in writing by certified mail within 10 working days to the Probation Supervisor at the Board of Nursing Office, 904/359-6331, 111 East Coastline Drive, Jacksonville, Florida, 32202.

   
   

3. The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee's name, license number, current address, name, address, and phone number of each current employer, whether employed as a nurse or not, and a statement by the licensee describing her employment. This report shall be submitted to the Probation Supervisor every three (3) months as scheduled, and in a manner as directed, by the Probation Supervisor. If the licensee is not employed as a nurse when probation begins, or at any time during probation, the licensee shall immediately notify the board office of her return to nursing.

   
   

4. The licensee shall be responsible for causing reports to be furnished by her employer (if employed as a nurse) to the Probation Supervisor every three

   (3) months as scheduled by her. This report shall describe the licensee's work

   assignment, work load, level of performance and any problems. The nursing supervisor shall be made aware of the licensee probation and shall verify such knowledge by notification to the board office.

   
   

5. The licensee agrees to submit to random blood and/or urine tests at times and places to be arranged by the Department. The Respondent shall upon request provide complete information and documentation concerning usage of medication or any substance that might affect the test results.

   
   

6. The licensee shall not consume alcohol while on duty, nor function as a nurse with alcohol in her system.

   
   

7. The licensee shall not consume, or otherwise self medicate with any controlled substances or legend drugs unless prescribed by a duly licensed practitioner.

   
   

8. The licensee shall attend either Narcotics Anonymous or Alcoholics Anonymous meetings and shall cause verification of attendance and participation at the meetings to be furnished to the Probation Supervisor every three (3) months as scheduled by the Probation Supervisor.

   
   

9. The licensee shall obtain or continue with counseling with a psychiatrist, psychologist or other recognized mental health care practitioner and shall cause progress reports to be submitted to the Probation Supervisor every three (3) months during treatment as scheduled by the Probation Supervisor. This shall continue for two (2) years and thereafter until discharged.

l. Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation.

Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing shall be subject to immediate and automatic suspension pending the licensee's appearance before the next Board meeting (or such other meeting as mutually agreed by the licensee and the Department). The licensee will be given notice of the hearing and an opportunity to defend.

The probationary period shall automatically terminate at the end of the prescribed time, but only if all terms and conditions have been met. Otherwise, the probation shall be terminated only by Order of the Board upon proper petition of the licensee, supported by evidence of compliance with this Order.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE and ORDERED this 17th day of November, 1988.

Jeanne Stark, Chairman Florida Board of Nursing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to Thalia Pence, 6017 West Hillsborough, Tampa, Florida 33614 by Certified Mail, and to Robert E. Meale, Hearing Officer, Division of Administration Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32399-1550, by United States Mail, this 17th day of November, 1988.

Judie Ritter Executive Director

Docket for Case No: 87-004524

Orders for Case No: 87-004524