STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2915

)

RITA JOY GIBBONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on April 16, 1991, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Lois B. Lepp, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed registered nurse, committed violations of Chapter 464, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against her license.

Resolution of that issue rests upon a determination of whether Respondent has been found guilty of a crime relating to the practice of nursing or the ability to practice nursing; or, whether Respondent has failed tocomply with minimal standards of acceptable and prevailing nursing practice to the extent that her action amounts to unprofessional conduct.

PRELIMINARY STATEMENT

On April 18, 1990, Petitioner filed an Administrative Complaint charging Respondent with various violations of Section 464.018(1), Florida Statutes.

Subsequently, Respondent requested a formal hearing and the matter was transferred to the Division of Administrative Hearings for the conduct of formal proceedings pursuant to Section 120.57, Florida Statutes.

On July 20, 1990, Petitioner filed an Amended Administrative Complaint alleging that Respondent violated Section 464.018(1)(c) and Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct through

failure to conform with minimal standards of acceptable nursing practice and through her conviction of a crime related to the practice of nursing or the ability to practice nursing. Either of the charges of the administrative complaint, if proven by clear and convincing evidence, constitute grounds for imposition of licensure discipline pursuant to Section 464.018(1) and (2), Florida Statutes (1989) and Rule 210-10.005(1) and (2), Florida Administrative Code.

At the hearing, Petitioner presented the testimony of four witnesses and seven evidentiary exhibits. Respondent did not appear and no evidence was presented on her behalf.

The parties did not request a transcript of the hearing. Proposed findings of fact submitted by Petitioner are addressed inthe appendix to this recommended order. Respondent did not timely submit proposed findings and none had been received at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Rita Joy Gibbons. She is a licensed registered nurse and holds license number 1144992, which is currently under suspension.

   
   

2. On December 10, 1987, at approximately 5:30 p.m., Respondent was involved in an automobile accident involving property damage to other vehicles and personal injuries to herself. She was subjected to criminal charges when the State Attorney for the Fourth Judicial Circuit filed an information in the County Court of Duval County, Florida. The information charged Respondent with the offense of Driving Under The Influence, a violation of 316.193, Florida Statutes (1987).

   
   

3. The information further specifically alleged that Respondent drove or had actual physical control of a motor vehicle while under the influence of intoxicating beverages to the extent that her normal faculties were impaired.

   
   

4. On July 11, 1988, Respondent pled no contest to the charged offense. The County Court adjudged Respondent to be guilty of the offense, placed her on probation for three months, credited her with three days of time served in the county jail of Duval County, Florida, and required her to pay a $500 fine.

   
   

5. At the time of the accident, Respondent was employed as a nurse by Visiting Nurses Association Continuous Care (VNA Continuous Care), located in Jacksonville, Florida.

   
   

6. When the accident occurred, Respondent was late for duty with her employer, VNA Continuous Care. Her work shift for that day was to have begun at approximately 4:30 p.m. and continued until midnight. Representatives of Respondent's employer received a telephone call that Respondent had been in an accident and would not be available for work.

   
   

7. Respondent's employment was terminated by VNA Continuous Care on January 4, 1988, shortly after the accident, for misconduct on the job and her failure to appear for work.

   
   

8. Respondent's license was suspended on April 15, 1991, in conjunction with sanctions imposed against her in another matter, Department of Professional Regulation, Board of Nursing Case No. 89-013688. The suspension is to last until Respondent appears before the Board of Nursing and demonstrates ability to

   engage in the safe practice of nursing. Among other charges, Respondent was charged in that case with failure to adhere to minimal standards of professional conduct.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner has the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Count I of the Amended Administrative Complaintcharges Respondent with conviction of a crime directly related to the practice of nursing or the ability to practice nursing, a basis for disciplinary action against a licensee pursuant to Section 464.018(1)(c), Florida Statutes (1989).

    
    

12. The proof fails to clearly and convincingly establish that the crime of which Respondent was convicted, driving under the influence of alcoholic beverages, relates to the practice of nursing or the ability to practice nursing. Respondent is not guilty of Count I of the Amended Administrative Complaint.

    
    

13. Count II of the Amended Administrative Complaint charges Respondent with unprofessional conduct through the failure to conform with minimal standards of nursing care, a basis for disciplinary action pursuant to Section 464.018(1)(h), Florida Statutes (1989).

    
    

14. A registered nurse is any person licensed to practice professional nursing in the State of Florida. Section 464.003(4), Florida Statutes (1989).

    
    

15. The "[p]ractice of professional nursing" is defined in Section 464.003(3)(a), Florida Statutes, as follows:

    
    

    "Practice of professional nursing" means the performance of those acts requiring substan- tial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences which shall include, but not be limited to:

    1. The observation, assessment, nursing diag- nosis, planning, intervention, and evaluation of care; health teaching and counseling of the ill, injured or infirm; andthe promotion of wellness, maintenance of health, and preven- tion of illness of others.

    2. The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medi- cations and treatments.

    3. The supervision and teaching of other personnel in the theory and performance of any of the above acts. (emphasis supplied)

16. Petitioner's argument that voluntary intoxication shortly before assuming nursing duties reflects a departure from standards of acceptable nursing care and constitutes unprofessional conduct may certainly be appropriate where a nursing professional has undertaken to perform acts in accordance with the foregoing statutory definition.

    
    

17. However, Petitioner's position is untenable where, as in this case, Respondent simply failed to show up for work and did not embark on the discharge of professional duties.

    
    

18. The evidence is not clear and convincing that Respondent departed from minimal standards of nursing care where she did not go to work. Respondent is not guilty of Count II of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Amended Administrative Complaint.

RECOMMENDED this 21st day of May, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2915

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-8. Adopted in substance, though not verbatim.

9.-10. Rejected; not supported by the evidence; statement of ultimate fact.

1. Rejected, she was terminated for misconduct and abandonment of her job.

2. Rejected; legal conclusion; ultimate fact which, while true if the nurse does assume her duties, is inapplicable to the present situation.

Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

Lois B. Lepp, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe Street Tallahassee, FL 32399-0792

Rita Joy Gibbons

6937 Cherbourg Avenue North Jacksonville, FL 32305

Jack McRay, Esquire General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe Street Tallahassee, FL 32399-0750

Judie Ritter Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32201

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002915

Orders for Case No: 90-002915