STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1557

)

SYLVIA ECHLOV, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 11, 1991, and October 17, 1991, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Karen C. Amlong, Esquire

101 Northeast Third Avenue Second Floor

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

1. Whether the charges against Respondent should be dismissed on the ground that they were filed in violation of the procedural requirements imposed by Florida law, as alleged by Respondent?

   
   

2. Whether Respondent engaged in "unprofessional conduct" in violation of Section 464.018(1)(h), Florida Statutes, as charged by Petitioner?

   
   

3. If so, what disciplinary action should be taken against her?

   
   

   PRELIMINARY STATEMENT

   
   

   On February 4, 1991, the Department of Professional Regulation (Department) issued an Amended Administrative Complaint against Respondent, the body of which read as follows:

   
   

   1. Petitioner, Department of Professional Regulation, is the state agency charged with

      regulating the practice of nursing pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 464, Florida Statutes.

   2. Respondent is, and has been at all times material hereto, a licensed practical nurse in the State of Florida, having been issued license number PN 0626161. Respondent's last known address is 1251 S.W. 71st Avenue, Ft. Lauderdale, Florida 33317.

   3. At all times material hereto, Respondent was employed as a practical nurse by Rosenthal,

      Inc., owner of three Today's Woman Medical Centers located in Dade and Broward Counties. Abortions

      are performed at said clinics by Vladimir Rosenthal, M.D.

      COUNT I

   4. On or about September 30, 1989, the Department of Health and Rehabilitative Services (hereinafter referred to as HRS), conducted an on-site inspection of the Today's Woman Center located in Coral

      Gables, Florida.

   5. The inspection revealed that sanitary procedures were not followed at the time that medications

      were being prepared for later administration, in that medications were placed directly in the hand from their original container. The medications were then placed into unlabeled

      containers or envelopes for dispensing to patients.

      The type of container used did not allow for the medications to be visually seen.

   6. The inspection further revealed that refrigerated medications were not stored separately but

      were kept with food and laboratory products.

   7. Respondent admitted to being the individual in charge of medication administration and preparation at this location. In this capacity, Respondent knew or should have known of the above-stated violations. Based thereon, the

      Respondent is in violation of Section 464.018(1)(h), Florida Statutes, for unprofessional conduct,

      which shall include, but not be limited to,

      the failure to conform to the minimum standards of acceptable and prevailing nursing practice.

      COUNT II

   8. Petitioner realleges and incorporates as if fully stated herein, the allegations as are contained in the foregoing paragraphs.

   9. On or about October 27, 1989, HRS conducted an inspection of the Today's Woman Medical Center located in Broward County.

   10. Respondent, who is in charge of preparing medications for administration at this facility as well, was asked to demonstrate this procedure.

       Respondent had to be reminded by an unlicensed staff member to don gloves and had to be "coached" throughout the procedure. Respondent did not appear to know how to measure and re-package

       the medications for later administration.

   11. Based on the foregoing, the Respondent

is in violation of Section 464.018(1)(h), Florida Statutes, for unprofessional conduct, by failing to conform to the minimum standards of acceptable and prevailing nurse practice.

WHEREFORE, Petitioner respectfully requests the Board of Nursing to enter an Order imposing one or more of the following penalties:

revocation or suspension of the Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, restriction of Respondent's practice, and/or any other relief that the Board deems appropriate.

On February 12, 1991, Respondent served on the Department a motion to dismiss the Amended Administrative Complaint. In her motion, Respondent argued that, "[b]ecause the probable cause panel met in violation of the Government in the Sunshine law as to Respondent, its action is not considered binding and the Amended Administrative Complaint must be dismissed." Thereafter, Respondent filed the following answer and affirmative defenses to the Amended Administrative Complaint:

Respondent, SYLVIA ECHLOV, answers the Amended Administrative Complaint as follows:

1. The allegations of paragraphs 1 and 2 are admitted.

2. The allegations of paragraphs 3, 5, 6, 7,

   10 and 11 are denied.

3. Respondent is without knowledge as to the dates of the HRS inspections alleged to have taken place on September 30, 1989 and October 27, 1989 and therefore denies the allegations of paragraphs 4 and 9.

4. All allegations not specifically admitted herein are denied.

   AFFIRMATIVE DEFENSES

5. The filing of the Amended Administrative Complaint was not authorized by law and was in violation of law, and particularly, was filed

   in violation of Section 286.011, Florida Statutes, as more particularly set forth in respondent's Verified Motion to Dismiss Amended Administrative Complaint filed over Certificate of Service

   dated February 12, 1991.

6. The conduct in which respondent is alleged to have engaged does not constitute a violation of Section 464.018(1)(h), Florida Statutes.

7. The investigation and prosecution of this case is intended to dissuade respondent from exercising her constitutionally protected rights of association.

8. The investigation and prosecution of this case is intended to dissuade respondent from exercising her constitutionally protected right to be free from governmental interference in

   the selection of her employment and personal and professional acquaintances.

9. The investigation and prosecution of this case is intended to burden the constitutionally protected right of the patients who frequented the clinic at which respondent was employed in the exercise [of] their rights protected under

   the Florida and Federal Constitutions to terminate their pregnancies.

10. Respondent reserves her right to seek attorneys' fees under the Florida Equal Access

to Justice Act, Section 57.111, Florida Statutes.

On March 8, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. The transmittal letter sent by the Department read, in pertinent part, as follows:

The Department of Professional Regulation is requesting a formal proceeding pursuant to Section 120.57(1), Florida Statutes, for the above-referenced matter. . . . The case was originally scheduled to be heard by J. Stephen Menton, and assigned case number 90-3612. The Division of Administrative Hearings file was closed in this case on September 6, 1990. The

Administrative Complaint was subsequently amended.

The case was subsequently assigned to the undersigned Hearing Officer and the final hearing was scheduled for June 11, 1991. At the commencement of the final hearing on June 11, 1991, prior to the taking of any evidence, Respondent brought to the attention of the Hearing Officer that the Department had not yet responded to her Request for Admissions, which had been served on the Department on March 25, 1991. She then argued that, by operation of Fla. R. Civ. P. 1.370, the matters set forth in the Request for Admissions were deemed admitted and therefore the Department had "no case" against her. Accordingly, she requested that the charges against her be dismissed. In response to this request, the Department moved for permission to withdraw certain of the admissions it had made by virtue of its failure to timely respond to the Request for Admissions.

Although the Department, in support of its motion, did not establish that there was any good reason for its lack of response, the Hearing Officer nonetheless granted its motion on the authority of Wilson v. Department of Administration,

538 So.2d 139 (Fla. 4th DCA 1989), which stands for the proposition that "such relief [may] be granted even for mere inadvertence," provided that the opposing party is not prejudiced by the withdrawal. In addition, to avoid the occurrence of such prejudice in the instant case, the Hearing Officer continued the evidentiary portion of the hearing at Respondent's request. After receiving input from the parties on the matter, the Hearing Officer rescheduled the hearing for October 17 and 18, 1991.

Following the rescheduling of the evidentiary portion of the final hearing, various prehearing motions were filed by both parties. Among the prehearing motions that were filed was a motion filed by Respondent requesting that the Hearing Officer issue "a protective order against the taking of her deposition" by the Department. In her motion, Respondent contended that "the discovery sought would require Respondent to testify against herself in violation of her constitutional privilege against self-incrimination." Respondent cited Vining

v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973) in support of her

position. By order issued July 30, 1991, the Hearing Officer granted Respondent's motion, stating as follows:

Under Vining, as both parties recognize, Respondent has a Fifth Amendment-type privilege against self-incrimination that she is entitled to assert in this disciplinary proceeding to avoid giving answers to questions posed by Petitioner that may be used to build a case against her. At issue in the instant case is not the existence of this privilege, but the manner in which it must be asserted. As Hearing Officer Michael M. Parrish recently stated in

his Order on Motions in Department of Professional Regulation v. Wachtel, No. 90-4351 (DOAH May

21, 1991):

"There are differences in the manner in which the privilege against self-incrimination may be asserted depending upon whether the person from whom the information is sought is merely a witness or is an 'accused.' See McCormick

on Evidence (1956 Ed.), at Sections 122 and 136. See also, Alston v. United States, 383 A.2d

307 (D.C. Ct. App. 1978). While mere witnesses may be summoned to appear for questioning and be required to assert their privilege on a question by question basis, an accused is generally entitled to a 'blanket' exemption from any questioning. See Fla. .R. Crim. P. 3.250; Kaplow v. State, 157 So.2d 862 (Fla.

2d DCA 1963). It appears to be the intent of the court in Vining, supra, to extend to a respondent in a case involving the possible suspension or revocation of a license the same privilege against self-incrimination as is enjoyed by an accused in a criminal proceeding, i.e., '... the right to remain silent. '

Vining, at 491."

Inasmuch as Respondent is entitled to a "blanket" exemption from any questioning by Petitioner,

she may assert her right to avoid such questioning, as she has done, in a motion for protective order.

There is no reason that she has "to show up at the deposition and at that time invoke her 5th amendment privilege."

Thereafter, on September 26, 1991, the Department filed a motion in limine seeking the entry of an order "excluding the direct or indirect use of Respondent's testimony at the formal hearing scheduled in this proceeding, specifically preventing the Respondent from waiving her right against self- incrimination and testifying after having exercised the privilege in refusing to answer Petitioner's Request for Admissions and Interrogatories." By order issued September 30, 1991, the Hearing Officer denied the motion, without prejudice to the Department renewing its request at hearing if Respondent sought to offer her own testimony in her defense. In that same order the Hearing Officer, among other things, directed the parties to furnish opposing counsel

the names and addresses of all witnesses that counsel intended to call to the stand to testify at hearing and to prepare and file a prehearing stipulation.

At the continuation of the final hearing on October 17, 1991, prior to any evidence being presented, the Department sought leave to amend the Amended Administrative Complaint by: deleting the last sentence of paragraph 3; modifying paragraph 9 to read, "On or about October 26, 1989, HRS conducted an inspection of the Today's Woman Medical Center located in North Miami;" and deleting from the "WHEREFORE" clause the language indicating that it was seeking the revocation or suspension of Respondent's license. Having determined that these amendments would not result in any unfair prejudice to Respondent, 1/

the Hearing Officer granted the leave sought by the Department, 2/ with the caveat that he would reconsider his ruling should the evidence adduced at hearing reveal that these amendments were not authorized by the probable cause panel, as alleged by Respondent. 3/

During the evidentiary portion of the final hearing held on October 17, 1991, the Department presented the testimony of three witnesses: Diane Robie, a medical quality assurance investigator with the Department; Caesar Arias, a drug agent supervisor with HRS; and Nancy Cox, a registered nurse who testified as an expert in the area of nursing practice. In addition to presenting the testimony of these three witnesses, the Department offered, and the Hearing Officer received, three exhibits into evidence. It subsequently withdrew two of these exhibits, however.

Respondent presented the testimony of two witness: Carmen Penaloza, the "unlicensed staff member" referenced in paragraph 10 of the Second Amended Administrative Complaint who allegedly "coached" Respondent, and Dr. Vladimir Rosenthal. She also offered, and the Hearing Officer received, seven exhibits into evidence.

The Department objected to Penaloza's and Rosenthal's testimony insofar as it covered matters addressed in the Department's request for admissions, "to which [Respondent] had previously invoked her privilege against self- incrimination." It argued that "since there were no answers . . . it [could not] appropriately prepare any type of cross-examination." The Hearing Officer allowed Penaloza and Rosenthal, both of whom were on Respondent's witness list, to testify regarding these matters, but indicated that he would consider the legal arguments made by the parties in their post-hearing submittals before finally deciding whether to take such testimony into consideration in making his Findings of Fact.

At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on October 30, 1991. On November 27, 1991, and December 2, 1991, respectively, the Department and Respondent filed their filed proposed recommended orders.

The parties' proposed recommended orders each contain proposed findings of fact. These findings of fact proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

Among the legal issues addressed by the parties in their proposed recommended orders is whether Respondent, by invoking her right to remain silent in response to the Department's discovery requests, effectively forfeited her

right to present testimony regarding the matters which were the subject of the Department's inquiry. 4/ Having considered the respective arguments advanced by the parties, it is the view of the Hearing Officer that no such forfeiture occurred. To hold otherwise would be inconsistent with Vining, which, as noted above, stands for the proposition that "a respondent in a case involving the possible suspension or revocation of a license [has] the same privilege against self-incrimination as is enjoyed by an accused in a criminal proceeding." A criminal defendant who exercises his right to remain silent in response the state's pretrial efforts to obtain from him information that could be used against him at trial does not thereby lose his right to present at trial evidence concerning those matters about which the state inquired. Therefore, a licensee who invokes his right to remain silent in response to the Department's prehearing attempts to elicit from him information that could be used against him at hearing does not suffer the consequence of losing his right to present at hearing evidence regarding those matters which were the subject of the Department's prehearing inquiry. The Department's argument to the contrary is rejected and its objection to Penaloza's and Rosenthal's testimony on the ground that Respondent's prehearing assertion of her right to remain silent had such a consequence is overruled. 5/

FINDINGS OF FACT

Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made:

1. Respondent is now, and has been at all times material hereto, a licensed practical nurse in the State of Florida holding license number PN 0626161.

   
   

2. At all times material hereto, Dr. Vladimir Rosenthal owned three clinics in Dade and Broward Counties at which he performed abortions. The clinics were located in Coral Gables (hereinafter referred to as the "Coral Gables clinic"), North Miami (hereinafter referred to as the "North Miami clinic") and Plantation (hereinafter referred to as the "Broward clinic"). All three clinics were licensed under Chapter 390, Florida Statutes.

   
   

3. In September and October, 1989, Respondent was employed by Rosenthal and worked full-time as a licensed practical nurse in the North Miami clinic. During this period of time, she had no responsibilities with regard to the other two clinics owned by Rosenthal.

   
   

4. Among Respondent's duties at the North Miami clinic during this time period was to prepare, under Rosenthal's direct supervision, packages of medications that Rosenthal gave to his patients, free of charge, to take home with them upon their discharge, a practice that Rosenthal has since discontinued. 6/

   
   

5. On September 30, 1989, the Department of Health and Rehabilitative Services (HRS) conducted an on-site inspection at the Coral Gables clinic. Respondent was not present at the clinic during the inspection. Nor were there any patients at the clinic at the time.

   
   

6. Approximately 50 small manilla envelopes containing multiple doses of medications were found in a drawer of a desk in the clinic. The envelopes were labeled to the extent that they indicated the name of the drugs they contained, but they did not provide any information regarding the lot number, expiration date or the name of the manufacturer of the drugs.

7. Carmen Penaloza, one of the clinic workers who was present during the inspection, was asked to demonstrate how these packages were prepared. Penaloza proceeded to take an empty manilla envelope like the ones that had been found in the desk drawer and fill it with medication that came from a large container.

   In performing this demonstration, she did not use gloves and her bare hands came in contact with the medication. Carlos Arias, a licensed pharmacist and one of the HRS employees who participated in the inspection, advised Penaloza that the technique she had employed was unsanitary and recommended that in the future she use a tray and spatula like pharmacists do to perform such a task.

   
   

8. The HRS inspection also revealed that medical devices were being stored in a refrigerator that also contained food items.

   
   

9. On October 26, 1989, HRS conducted an on-site inspection of the North Miami clinic. Arias was among the various HRS employees who were on the inspection team. Diane Robie, a medical quality assurance investigator with the Department, accompanied the team members on their inspection.

   
   

10. Approximately 30 envelopes containing medications were found during the inspection. They were similar to the packages that had been discovered the month before at the Coral Gables clinic.

    
    

11. Respondent was at the clinic when the inspection was conducted. Penaloza was also there. No patients were present, however.

    
    

12. Respondent was asked to demonstrate how the packages were prepared. Penaloza was nearby at the time the request was made. She saw Respondent nervously looking around and concluded that Respondent was unable to locate any sterile gloves to use. She therefore told Respondent where such gloves could be found. Respondent then donned the gloves, laid a clean piece of paper on top of the desk where she was situated, placed tablets from a large container onto the paper and pushed each tablet with a tongue blade into a small manilla envelope. 7/

    
    

13. The technique that Respondent used during her demonstration, while it may have been unconventional from the perspective of a pharmacist like Arias, nonetheless was antiseptic and therefore acceptable.

    
    

14. Sometime during the inspection Respondent made a statement that led Robie to erroneously believe that Respondent was responsible for packaging medications, not just at the North Miami clinic, but at the Coral Gables clinic as well.

    
    

15. A finding of probable cause was initially made in this case on May 14, 1990.

    
    

16. An Administrative Complaint was thereafter issued and the matter was referred to the Division of Administrative Hearings.

    
    

17. The Department received the following letter, dated September 4, 1990, from counsel for Respondent concerning settlement of the case:

    
    

    This will confirm our understanding that you will file a notice of dismissal with DOAH of the case now pending against my client and, providing the dismissal is confirmed as a final

    dismissal and closing order entered by the probable cause panel, that Ms. Echlov will agree not to seek fees against your agency under the Florida Equal Access to Justice Act. In the event the panel does not approve a final dismissal and instructs you to refile the case, neither party will be prejudiced by the present agreement and each party will retain all rights

    otherwise available to them, including my client's rights to seek fees should the case be refiled.

    If this does not reflect our understanding, please notify me at once. Otherwise, please fax me a copy of your notice of dismissal so

    that I can take the final hearing off my calendar.

    Thank you for your efforts to resolve this matter amicably.

    
    

18. Counsel for Respondent sent to the Department, and the Department received, the following follow-up letter, dated November 6, 1990:

    
    

    You may recall that we reached an agreement in the above-referenced case providing for a voluntary dismissal on your part and promise

    on mine that my client would not seek attorney's fees under the Equal Access to Justice Act.

    You had to take the case back before the Probable Cause Panel and ask them to close it.

    In order that I can close my file and know that this matter is, in fact, concluded, please let me know whether you have taken the case back before the Probable Cause Panel and, if so,

    the outcome. If there are documents reflecting same, please, please send me a copy. If the case has not been taken back before the Panel, please let me know when this will be done.

    Thanks. I'll be looking forward to hearing from you.

    
    

19. Counsel for Respondent sent to the Department, and the Department received, a third letter, dated January 14, 1991, the body of which read, as follows:

    
    

    It has now been over four months since we reached our "understanding" that DPR would dismiss the case pending before DOAH (which you did) and that my client would forego her right to seek fees under the EAJA, providing (to quote from my September 4, 1990 letter to you) "that the dismissal is confirmed as a final dismissal and a closing order [is] entered by the probable cause panel."

    The final part of the bargain has never been performed so far as I know (and, if it was performed, the action was illegal since I requested notification of the date when the matter would be presented to the panel so that I might attend or send a court reporter but

    never received any). I have not, of course, received any final order of dismissal from the probable cause panel.

    If, within ten days of the date of this letter, I have not received either:

    1. an order of closure from the probable cause panel, or

    2. the time, date and place when our agreement will be presented to the panel,

       I will consider that DPR is in breach of the agreement and pursue all remedies available to my client, including attorneys' fees.

       I look forward to hearing from you at your earliest convenience.

       
       

20. The probable cause panel met a second time, at which it determined not to reconsider its initial finding of probable cause. 8/

    
    

21. Neither Respondent nor her attorney were notified of this second meeting of the probable cause panel.

    
    

22. Following this meeting, an Amended Administrative Complaint was filed.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Board of Nursing (Board) is statutorily empowered to discipline licensed practical nurses based upon any of the grounds enumerated in Section 464.018(1), Florida Statutes.

    
    

24. To support license revocation or suspension, the proof establishing the existence of these grounds for discipline must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

25. Where the discipline does not involve the loss of licensure, the licensee's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

26. Regardless of the disciplinary action taken, it may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney

    v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984). Furthermore, in determining whether the licensee has violated Section 464.018, Florida Statutes, as charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . this being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

27. A licensee may successfully defend against an administrative complaint by showing that it was issued in violation of the probable cause requirements prescribed by law. See Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982).

    
    

28. An administrative complaint issued by the Department must be based upon a determination of probable cause "made by majority vote of a probable cause panel." Section 455.225, Fla. Stat. The probable cause panel must do more than simply "rubber stamp" the recommendation made by the Department. It is required to engage in an evaluative process and may find probable cause only if the evidence it has considered reasonably indicates that the violations alleged have actually occurred. See Kibler v. Department of Professional Regulation, 418 So.2d at 1084.

    
    

29. Section 455.225(4), Florida Statutes, provides that "[a]ll proceedings of the [probable cause] panel are exempt from the provisions of s. 286.011 [Florida's open meetings law] until probable cause has been found to exist by the panel or until the subject of the investigation waives his privilege of confidentiality."

    
    

30. Section 286.011(1), Florida Statutes, provides that "[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting."

    
    

31. Respondent argues that the charges against her should be dismissed because (1) the second meeting of the probable cause panel was "held in violation of [S]ection 286.011, [Florida Statutes, and therefore] is void," and

    (2) in any event, the transcript of this meeting "does not show that there was any evidence considered by the panel that would reasonably indicate that the violations alleged had occurred."

    
    

32. At its second meeting, the probable cause panel simply declined to reconsider its initial probable cause determination. Therefore, whether or not such action is considered a nullity because it was taken in violation of the requirements of the state's open meetings law, the panel's initial probable cause determination still stands. No showing has been made that this initial determination of probable cause was made in derogation of the requirements of law. Nor has it been demonstrated that the Department's Second Amended Administrative Complaint contains any allegations not based upon this initial probable cause determination. Absent such proof, the Board should deny Respondent's motion to dismiss and consider the charges against her on their merits.

    
    

33. Respondent has been charged with two counts of "unprofessional conduct," in violation of Section 464.018(1)(h), Florida Statutes.

    
    

34. Section 464.018(1)(h), Florida Statutes, authorizes the Board to take disciplinary action against a licensed registered nurse for "[u]nprofessional 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."

35. The "practice of practical nursing" is defined in Section 464.003(3)(b), Florida Statutes, as "the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatrist, or a licensed dentist."

    
    

36. In Count I of the Second Amended Administrative Complaint, Respondent is charged with "unprofessional conduct" in connection with alleged violations in the preparation and storage of medications at the Coral Gables clinic that were discovered during the September 30, 1989, HRS inspection.

    
    

37. The preponderance of the evidence does not establish that Respondent had any responsibility, of a supervisory nature or otherwise, for the preparation and storage of medications at the Coral Gables clinic on the date of the inspection. Accordingly, Count I of the Administrative Complaint should be dismissed.

    
    

38. In Count II of the Second Amended Administrative Complaint, Respondent is charged with "unprofessional conduct" in connection with a demonstration that she performed at the behest of the inspection team during the October 26, 1989, inspection of the North Miami clinic. It is alleged that she had to be "coached" throughout the demonstration and that her performance indicated that she did not "know how to measure and re-package the medications for later administration." 9/ This allegation is not supported by a preponderance of the evidence. The only assistance that Respondent received during the demonstration was in locating the gloves that she needed to use. After receiving such assistance, she was not given, nor did she require, any further help. She proceeded to complete the demonstration in a manner that has not been shown to be in any way improper or unacceptable. 10/ Accordingly, Count II of the Second Amended Administrative Complaint should also be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the Second Amended Administrative Complaint, and (2) dismissing said complaint in its entirety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January, 1992.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992.

ENDNOTES

1/ With respect to the amendment to paragraph 9 of the Amended Administrative Complaint, counsel for Respondent conceded that Respondent had been "aware since the complaint was filed that the events did not take place at either the location or date that was alleged in the first complaint or the first amended complaint" and that therefore "there [was] absolutely no surprise in regard to this."

2/ In determining whether a motion to amend a complaint should be granted, the primary consideration is the prejudice, if any, that the opposing party would suffer. See Key Biscayne Council v. Department of Natural Resources 16 FLW D1239 (Fla. 3d DCA May 7, 1991); Wackenhut Protective Systems, Inc. v. Key Biscayne Commodore Club Condominium I, Inc. 350 So.2d 1150, 1151 (Fla. 3d DCA 1977).

3/ The Amended Administrative Complaint, as so amended, will hereinafter be referred to as the "Second Amended Administrative Complaint."

4/ Pursuant to Section 120.57(1)(b)4, Florida Statutes, a party in a formal administrative hearing has the right to "present evidence . . . on all issues involved."

5/ None of the cases cited by the Department in support of its argument involved a penal prosecution where the litigant exercised his right to refuse to provide information to the prosecuting party on the ground that such information could be used by the prosecuting party in the prosecution against him.

Accordingly, these cases are inapposite.

6/ Although Rosenthal was not registered as a dispensing practitioner, he was not required to so register, as a reading of the following provisions of Section 465.0276, Florida Statutes, which was in effect at the time, reveals:

(1) A person may not dispense medicinal drugs unless licensed as a pharmacist or otherwise authorized under this chapter to do so, except that a practitioner authorized by law to prescribe drugs may dispense such drugs to

his patients in the regular course of his practice.

* * *

(5) A practitioner who confines his activities to the dispensing of complimentary packages

of medicinal drugs to his own patients in the regular course of his practice, without the payment of fee or remuneration of any kind, whether direct or indirect, and who himself dispenses such drugs is not required to register pursuant to this section. The practitioner must dispense such drugs in the manufacturer's labeled package with the practitioner's name, patient's name, and date dispensed, or if such drugs are not dispensed

in the manufacturer's labeled package, they must be dispensed in a container which bears the following information:

1. Practitioner's name;

2. Patient's name;

3. Date dispensed;

4. Name and strength of drug; and

5. Directions for use.

7/ There is no indication that this package of medication prepared by Respondent for the benefit of the inspectors was ever dispensed to any patient.

8/ The record does not reveal the date of this second meeting of the probable cause panel.

9/ Although the Department sought to present evidence on the matter, Respondent is not charged with, and therefore cannot be found guilty of, exceeding the scope of her license in "measur[ing] and re-packaging the[se] medications for later administration."

10/ Because Respondent was simply performing a mock demonstration at the request of the inspection team, rather than an act "in the care of the ill, injured or infirm [or] the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatrist, or a licensed dentist," it is questionable whether her performance during this demonstration, even if it reflected a lack of knowledge and incompetency on her part regarding proper measuring and packaging techniques, would have constituted "unprofessional conduct" in violation of Section 464.018(1)(h), Florida Statutes. It is unnecessary to decide this issue, however, inasmuch as the proof adduced at hearing does not establish that Respondent performed the demonstration in such a manner.

11/ Unregistered physicians who dispense complimentary drugs in their own, rather than the manufacturer's, package must comply with the labeling requirements of Section 465.0276(5), Florida Statutes, which provides that the package bear the following information at the time it is dispensed: "(a) Practitioner's name; (b) Patient's name; (c) Date dispensed; (d) Name and strength of drug; and (e) Directions for use." While the packages of medications that were found at both the Coral Gables and North Miami clinics did not contain all of this information, it cannot be said that Rosenthal was therefore in violation of the labeling requirements of Section 465.0276(5), Florida Statutes, inasmuch as these packages had yet to be dispensed to any patients.

12/ The Hearing Officer has credited Rosenthal's testimony to the contrary regarding Respondent's job duties during this time period.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties in the instant case:

The Department's Proposed Findings of Fact

1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

4. To the extent that this proposed finding states that containers or envelopes referenced therein were unlabeled, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

5-6. Accepted and incorporated in substance.

1. To the extent that this proposed finding suggests that the envelopes referenced therein were labeled "improperly," i.e., not in accordance with the requirements of law, 11/ it has been rejected because it is a conclusion of law/legal argument rather than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

2. Rejected because it is not supported by the greater weight of the evidence. The refrigerator contained food and medical devices, not medications.

3. To the extent that this proposed finding is consistent with Finding of Fact 14, it has been accepted and incorporated in substance. Otherwise, particularly to the extent that it suggests that Respondent supervised the preparation and administration of all medications at the North Miami and Broward clinics in September and October, 1989, it has been rejected because it is not supported by the greater weight of the evidence. 12/

10-11. Accepted and incorporated in substance.

1. First sentence: To the extent that this proposed finding suggests that Respondent prepared medications for administration without Rosenthal's supervision at the North Miami clinic, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance; Second sentence: To the extent that this proposed finding suggests that Penaloza told Respondent where she could find the gloves, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is not supported by the greater weight of the evidence; Third sentence: Rejected because it is not supported by the greater weight of the evidence.

2. To the extent that this proposed finding suggests that the envelopes referenced therein were labeled "improperly," i.e., not in accordance with the requirements of law, it has been rejected because it is a conclusion of law/legal argument rather than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

Respondent's Proposed Findings of Fact Part I

1. Rejected because it is a statement of the law rather than a finding of fact. 2-5. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of commentary on evidence received at hearing than a finding of fact based upon such evidence.

2. Accepted and incorporated in substance.

3. Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

4. Rejected because it is a statement of the law rather than a finding of fact.

5. Rejected because it is a conclusion of law/legal argument rather than a finding of fact.

11-12. Rejected because they are statements of the law rather than findings of fact.

1. Rejected because it is a conclusion of law/legal argument rather than a finding of fact.

2. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected as unpersuasive argument.

15-17. Rejected because they are conclusions of law/legal arguments rather than findings of fact.

Part II

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding describes Rosenthal's responsibilities at the Coral Gables and Broward clinics, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

5. First sentence: To the extent that this proposed finding states that Robie was not present during the September 30, 1989, inspection of the Coral Gables clinic, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of commentary on evidence received at hearing than a finding of fact based upon such evidence; Second sentence: Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

23-24. Rejected because they are more in the nature of commentaries on evidence received at hearing than findings of fact based upon such evidence.

1. First sentence: Rejected because it is more in the nature of commentary on evidence received at hearing than a finding of fact based upon such evidence; Second sentence: Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

2. First sentence: To the extent that this proposed finding states that Respondent was not present during the September 30, 1989, inspection of the Coral Gables clinic and "had no responsibility for the clinic," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact; Second sentence: Rejected because it is more in the nature of commentary on evidence received at hearing than a finding of fact based upon such evidence.

3. Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

4. First sentence: Rejected because it is more in the nature of commentary on evidence received at hearing than a finding of fact based upon such evidence; Second sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact.

29-30. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it constitutes argument regarding the adequacy of the Department's proof rather than a finding of fact.

2. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. To the extent that this proposed finding suggests that Respondent acted as if she was nervous during the inspection, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. First-third sentences: Accepted and incorporated in substance; Fourth and fifth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. Accepted and incorporated in substance.

36-39. Rejected because they are more in the nature of commentaries on evidence received at hearing than findings of fact based upon such evidence.

40-42. Rejected because they are statements of the law rather than findings of fact.

43-49. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact.

2. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Albert Peacock, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Karen C. Amlong, Esquire

101 Northeast Third Avenue Second Floor

Fort Lauderdale, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

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 OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA BOARD OF NURSING

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO.: 91-1557

DPR CASE NO.: 89-11322

SYLVIA D'AMORE ECHLOV,

Respondent.

/

FINAL ORDER

Respondent, Sylvia D'Amore Echlov, holds Florida license no. LPN 0626161 as a licensed practical nurse. Petitioner filed a Second Amended Administrative Complaint seeking 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 Section 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 April 9, 1992, in Miami, Florida, to take final agency action. The Board has reviewed the entire record supplied in the case.

Petitioner was present and represented by Lisa M. Bassett. Respondent was present along with her counsel, Karen Amlong. The parties did not file any exceptions.

FINDINGS OF FACT

The Board accepts and adopts paragraphs 1-22 of the Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Board has jurisdiction. Section 120.57(1), Florida Statutes.

The Board accepts and adopts paragraphs 1-16 of the Conclusions of Law contained in the Recommended Order.

DISPOSITION

The Board finds the Petitioner failed to meet its burden of proof and dismisses the Second Amended Administrative Complaint.

Pursuant to Section 120.68, 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 that this order is filed.

Done and Ordered this 23rd day of April , 1992.

BOARD OF NURSING

Sandra Darling, CRNA, ARNP Vice Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to SYLVIA ECHLOV, 1251 Southwest 71st Avenue, Fort Lauderdale, Florida 33317, KAREN AMLONG, ESQUIRE, 101 Northeast Third Avenue, Second Floor, Fort Lauderdale, Florida 33301, by U.S. Mail to STUART M. LERNER, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by interoffice mail to TRACEY HARTMAN and LISA M. BASSETT, Attorney at Law, Department of Professional Regulation, 1940 N. Monroe Street, Tallahassee, FL 32399-0773 this 23 of

April , 1992.

Judie K. Ritter Executive Director

Docket for Case No: 91-001557

Orders for Case No: 91-001557