vs. ) CASE NO. 96-5122
Respondent. )
Upon due notice, this cause came on for formal hearing on February 25, 1997 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
1114 E. Park Avenue
Petitioner applied for licensure as a licensed practical nurse (L.P.N.) on March 27, 1996. She admitted in the Arrest History portion of her application that she had pled nolo contendere to a charge of passing a worthless bank check. In an Order filed September 20, 1996, the Board of Nursing granted the license, conditioned upon, and subject to, two years' probation.
Petitioner timely requested formal hearing.
At formal hearing, Patricia Willis Arias, Certified Legal Intern, was examined pursuant to Rules 60Q-2.007 and 60Q-2.008 Florida Administrative Code, and was declared to be the qualified representative of Respondent Board for purposes of these proceedings.
A. Official Recognition of various items was taken, as requested.
Petitioner presented the oral testimony of Douglas Hall, Assistant State Attorney and Charles Brown, R.N. and testified on her own behalf.
Respondent presented the oral testimony of Evelyn Singer, Ph.D., Dean of the Florida State University School of Nursing, and had no exhibits admitted into evidence.
A transcript was filed on March 7, 1997. All timely filed proposed findings of fact and conclusions of law have been considered in the preparation of this recommended order. The Joint Prehearing Stipulation has been utilized as appropriate.
On April 25, 1995, Petitioner pled nolo contendere to a first degree misdemeanor count of passing a worthless bank check in violation of Section 832.05(2)(a) Florida Statutes.
Section 832.05(2)(a) Florida Statutes provides, in pertinent part, as follows:
It is unlawful for any person, . . . to draw, make, utter, issue, or deliver to another any check, . . . knowing at the time of the drawing, making, uttering, issuing, or delivery such check or draft, . . . that the maker . . . has not sufficient funds on deposit . .
. with such bank . . . with which to pay the same on presentation . . . nor does this section apply to any postdated check.
As part of a court diversion program, adjudication was withheld and Petitioner was assigned to take the Florida Association for Corrective Training, Inc. (FACT) course on the criminal consequences of dishonored checks and how to avoid them. Petitioner completed the FACT course, and also paid restitution, diversion fees and court costs. This course was completed on September 12, 1995.
A plea of nolo contendere is neither an admission of guilt nor a denial of charges. A plea of nolo contendere with adjudication of guilt withheld does not constitute a conviction. Petitioner made her plea as a matter of convenience. Petitioner has never been found guilty or convicted of passing a worthless bank check.
The check which gave rise to Petitioner's April 25, 1995 plea of nolo contendere to a misdemeanor under Section 832.05(2)(a) Florida Statutes was written to Florida State University (FSU) on September 2, 1994 for tuition fees for courses in which Petitioner had enrolled as a nursing student. Petitioner made an error in the calculations of her check register. The check was returned to FSU as "without sufficient funds". FSU redeposited the check, which was then returned a second time to FSU as "without sufficient funds". Upon learning that the check had been returned, Petitioner contacted the FSU registrar's office. She was told that she had contacted FSU soon enough, so that she could withdraw from classes without penalty, and therefore she need not be concerned about the check. Petitioner did withdraw from classes and thought the problem was solved. However, FSU subsequently pressed criminal charges for the check with the Leon County State Attorney's Office.
On March 28, 1996, Petitioner applied for a practical nursing license (L.P.N.). On her application, Petitioner answered in the affirmative the question as to whether she had
ever been convicted or entered a nolo contendere or guilty plea regardless of adjudication, for any offense other than a minor traffic violation. She also provided a written explanation for the April 25, 1995 nolo contendere misdemeanor plea.
Additionally, in an effort to be candid and forthcoming, Petitioner provided a written explanation for each of five other charges for passing worthless bank checks brought against her.
As a result, Petitioner was invited to appear, and chose to appear, before the Board of Nursing's Credentials Committee to explain the circumstances surrounding her April 25, 1995 nolo contendere plea and the other worthless check charges she had disclosed. According to Petitioner, this meeting lasted less than five minutes and she was asked no questions.
Pursuant to Section 464.002 Florida Statutes, the Board of Nursing voted to grant Petitioner an L.P.N. license subject to two years' probation with terms described in its September 20, 1996 Order based upon the Board's "finding of fact" that Petitioner "was found guilty or pled nolo contendere on various charges of passing worthless bank checks" and that there were aggravating circumstances surrounding the plea. The Board's Order concluded that Petitioner is guilty of violating Section 455.227(1)(c) Florida Statutes.
Section 455.227(1)(c) Florida Statutes provides that a license may be disciplined for:
Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession.
The Board of Nursing does not have a disciplinary guideline, a range of penalties, or a rule addressing mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c) Florida Statutes.1
The Board of Nursing issued license number 1250541 to Petitioner effective October 9, 1996 and subject to two years' probation, as described in its September 20, 1996 Order.
Petitioner had an opportunity at formal hearing to present evidence concerning her nolo contendere plea and the five other charges she voluntarily reported to the Board.
A "no information" is the method of dismissing a misdemeanor criminal charge.
A "nolle prosequi" is the method of dismissing a felony criminal charge.
The first charge occurred in 1991 or 1992. It involved a dishonored check for a mere $5.64 to Winn-Dixie. The court diversion program at that time was not very elaborate, but Petitioner attended a single February 25, 1992 lecture on the passing of bad checks, and paid restitution plus $20.00 in costs. A nolle prosequi was entered.
Petitioner's check to FSU on September 2, 1994 for
$199.79 resulted in two service charges being imposed on her
checking account by her bank. (See Finding of Fact 5) These unilateral debits by the bank resulted in a check written September 15, 1994 by Petitioner for $56.59 to Winn-Dixie being dishonored for insufficient funds. Petitioner wrote a letter of explanation, paid restitution, and a "no information" was filed.
A $49.19 check written to Wal-Mart on March 31, 1995 and a $150.48 check written to Winn-Dixie on April 5, 1995 were dishonored because Petitioner relied upon her ex-fiancé to deposit money he owed her directly into her checking account instead of Petitioner receiving payment from him in person. Petitioner did not see her ex-fiancé in person or return to their joint residence to pick up her bank statements because he had been abusive and she was fearful of him. He did not, in fact, make the deposit to her account. Petitioner paid restitution and costs for both cases. The Wal-Mart check situation resulted in a "no information." The Winn-Dixie check situation resulted in a nolle prosequi.
A $99.20 check Petitioner had written to Publix on September 4, 1995 was dishonored because a car repair shop which had repaired her car did not honor an oral agreement Petitioner understood would prevent her check to the repair shop from being presented to the bank until after she had made a sufficient deposit from an insurance claim for the car repairs. This resulted in a "no information."
Due to the uncertainty of the State Attorney's
computer records (TR 96-98) and Petitioner's clear testimony, it is found that Petitioner was not required to undergo the diversion program for the September 15, 1994, March 31, 1995,
April 5, 1995, and September 4, 1995 checks. However, it is abundantly clear she has now had two courses concerning this subject: one in 1992 and one in 1995. (See Findings of Fact 3 and 16) It is also clear she wrote her last bad check before completing the second FACT course on September 12, 1995.
Two of Petitioner's bank check problems arose while she was a nursing student.
Petitioner was employed as a patient care technician at Vivra Renal Care from July 1995 through October 1996.
One of Petitioner's bank check problems arose while she was employed in the care of critically ill people.
Dr. Evelyn Singer, Dean of the School of Nursing at FSU testified as an expert in nursing education and the practice of nursing. She opined that practical nurses are responsible for observing and documenting vital patient information and routine patient care. Other health care professionals rely upon the accuracy of practical nurses' observations and documentation. Nursing instructors stress the importance of accuracy and honesty when a practical nurse handles vital patient information. A documentation mistake by a practical nurse has the potential for resulting in a patient's death.
Dr. Singer further opined that passing worthless bank
checks is a crime related to the practice of nursing because the skills called into question for passing worthless bank checks are the same skills required to be an effective nurse, ie., making accurate observations, accurately recording observations and events, making accurate calculations, accurately measuring medication doses, accurately measuring and noting blood pressure and temperature of patients, appropriately changing dressings, accurately measuring and reporting patient observations, being cognizant of details, and addressing errors or omissions honestly and promptly.
However, Dr. Singer further testified that if those things are accurately performed, then a nurse's ability is not affected by even a felony bad check arrest and plea.
Dr. Singer believes that an inaccurate nurse is an untrustworthy nurse. In Dr. Singer's expert opinion, practical nurses should notify their nursing units if they have been arrested and convicted of writing worthless checks so as to constitute a felony (TR 124-126), so that the registered nurse under whose license they practice can be on the alert for documentation mistakes. What significance a felony arrest or conviction has as opposed to a misdemeanor arrest or conviction was not explained by Dr. Singer, but she viewed the probation imposed on Petitioner not as a judgment of personal guilt or dishonesty but as an opportunity for Petitioner's employer to be on the lookout for inaccuracies.
At Petitioner's request, Judith G. Hankin, Director, School of Practical Nursing, Lively Technical Center, wrote a letter dated March 15, 1996 to the Board of Nursing. She wrote,
[Petitioner] entered the Practical Nursing Program on August 23, 1993. On March 14, 1996 [Petitioner] informed me that she had an arrest record for series of worthless bank checks. . . . Her overall behavior during the time she was enrolled in school was acceptable. I feel that [Petitioner] is capable of assuming the responsibilities of a graduate practical nurse.
Petitioner has worked as a licensed practical nurse at Vivra Renal Care, Tallahassee, Florida since her licensure on October 9, 1996. Her duties include assisting patients receiving kidney dialysis by setting up dialysis machines, preparation of dializers, assisting patients, and initiating treatment and discharge of patients.
Charles E. Brown, R.N., is the head nurse at Vivra Renal Care. He has supervised and been involved in the evaluation of Petitioner since she began work at Vivra Renal Care in July 1995. (See Findings of Fact 22 and 29)
Nurse Brown also was accepted as an expert in clinical nursing. He opined that inadvertently writing a worthless check or pleading nolo contendere does not relate to the practice of nursing or the ability to practice nursing.
Mr. Brown has consistently observed, over a period of approximately 18 months, that Petitioner accurately measures medication doses, accurately measures and notes blood pressure
and temperature of patients, appropriately changes dressings, accurately measures and reports patient observations and is cognizant of details.
Nurse Brown described Petitioner's nursing abilities as "good" and the opposite of careless to the point that she is more than meticulous.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner has requested formal hearing because she asserts her bad check charges were the result of simple error, not intentional dishonesty, and because the probationary restrictions imposed on her license constitute a disciplinary penalty which, among other things, severely restricts her ability to continue her education to become a registered nurse.
Petitioner asserts that this case must be viewed in tiers: (1)If she was never convicted and the rebuttable presumption of a nolo contendere plea is rebutted by proof that Petitioner did not write a check knowing she had no money in the bank, then there should be no penalty (ie. probationary requirements on her license); (2) Assuming arguendo that the presumption is not rebutted, then passing a worthless bank check is not related to the practice of nursing and there should be no penalty/probation; and finally, (3) Assuming arguendo that the
presumption is not rebutted and the charge is related to the practice of nursing, then because there is no rule establishing a disciplinary guideline for this particular misdemeanor, there also should be no penalty/probation.
It is not necessary to scale all three tiers of Petitioner's premise in order to resolve the instant case.
To the extent that the Board's September 20, 1996 Order relates that Petitioner "was found guilty," it is flawed. The Board's "finding" is likewise flawed in that it found Petitioner had pled nolo contendere to "various [which may be read as 'several'] charges of passing worthless bank checks."
Petitioner has, in fact, pled nolo contendere to a single misdemeanor charge of passing a worthless bank check.
However, the Board is entitled to discipline for a single plea of nolo contendere pursuant to Section 455.227(1)(c) Florida Statutes, if the crime of passing a worthless bank check relates to the practice of nursing or the ability to practice nursing.
Petitioner's argument that because Section 464.008 governing licensure by examination for nurses does not specifically authorize probation, probation may not be imposed, is rejected. The ability to practice nursing is not an absolute right, but is subject to regulation under the State's police powers. See, Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985). The Legislature has granted discretionary
authority to agencies enforcing statutes enacted under the police power. This discretionary authority is particularly necessary when an agency regulates occupations which are potentially injurious to the public and which are practiced by privilege rather than right. The agency has the authority to determine the fitness of those seeking licensure. See, Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130 (Fla. 1985).
Section 455.227, Florida Statutes, states in pertinent part:
(2) When the board, . . . finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify, or to certify with restrictions, an application for a license.
Petitioner's assertion that the agency's failure to specify a guideline for such restrictions utterly prohibits any restrictions being placed on the Petitioner's initial license via her probation is also rejected on the basis of Section 455.227(2)(a), Florida Statutes.
It still must be determined whether Petitioner's single nolo contendere misdemeanor plea to a charge under Section 832.05(2)(a), Florida Statutes "relates to the practice of, or the ability to practice, a licensee's profession." See, Section 455.227(1)(c), Florida Statutes.
The parties have provided no case law that determines conclusively that passing a worthless bank check, with or without intention to defraud, relates to the practice of nursing or the ability to practice nursing. Herein, two registered nurses testified on the subject. Dr. Singer spoke briefly about ethical behavior and honesty in relation to felonious criminal charges, but her concern as to the misdemeanor charge was directed only to probation as a means to heighten employer awareness of an L.P.N.'s potential recording inaccuracies. Charles Brown, R.N. did not view Petitioner's "bouncing" a check and pleading nolo contendere thereto as related to the practice of nursing or to this Petitioner's ability to practice nursing.
Additionally, both by the letter of the Director of the School of Practical Nursing, and the factual testimony of Registered Nurse Brown, this record demonstrates that the Petitioner's bad checks have not adversely affected Petitioner's ability to practice licensed practical nursing.
The seminal cases on "lack of fitness or truthworthiness to practice" (which is the Board's underlying contention) are Paisley v. Department of Insurance, 526 So.2d 167 (Fla. 1st DCA 1988) and Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1984).
While the Board, in its expertise, is afforded great latitude in the interpretation of the statutes it administers and both Paisley and Natelson defer to the familiar rule of an
agency's wide discretion in the interpretation of its statutes, both of those cases dealt with intentional criminal behavior. In Natelson, the court premised its holding on the basis that conviction of criminal conspiracy to traffic in illicit drugs evinced a lack of trustworthiness which could have an impact on the fiduciary relationship of that Respondent and his clients or insurance company employer. Likewise, the court in Paisley followed this rationale of effect upon fiduciary relationships in upholding the agency's determination that federal convictions for commission of mail fraud and for intentional conspiracy to commit an offense or defraud the United States were within permissible limits of the agency's authority to determine fitness to practice. In accord, see Department of Professional Regulation, Board of Medicine v. Hooshmand, M.D., DOAH Case No. 88-2270, Recommended Order entered March 3, 1989.
However, herein, the evidence does not demonstrate any fraudulent intent by Petitioner when she wrote any of her six bad checks. The evidence does not demonstrate that she evidenced a reckless disregard for the rights of others. Only her check to FSU clearly relates to simple inaccuracy of observing and documenting her bank balance or of recording and subtracting her deductions, and even there she addressed her error and omissions honestly and promptly. Honest and prompt recognition and address of error was emphasized by Dr. Singer, and Dr. Singer rendered testimony that only a felony charge would create fitness to
practice concerns based on inaccuracy. The record is unclear what caused Petitioner's 1992 negative balance, but the evidence herein clearly shows that on the four other occasions Petitioner had a reasonable, or at least plausible, expectation that the funds to cover her check would be in her account when the check was presented to her bank for payment.
Finally, Petitioner has presented evidence showing that in actual nursing practice she is accurate, indeed meticulous, and fit to practice. In this limited context, Petitioner's concern over the absence of a guideline for probation/penalty may have some validity, for many of the probation requirements of the Board as contained in its September 20, 1996 Order are clearly punitive in that they prevent or inhibit Petitioner changing employments at will or pursuing her further education, and not all of them are clearly related to Dr. Singer's concern for insuring careful observation and evaluation of Petitioner by her R.N. supervisors.
It is therefore concluded (a) that the September 20, 1996 Order is factually incorrect insofar as it found that the Petitioner pled nolo contendere to more than one misdemeanor charge; (b) the misdemeanor charge to which Petitioner pled nolo contendere is not a crime which relates to the practice of nursing or the ability to practice nursing, and therefore no restrictions on Petitioner's license may be imposed; and (c) even if it were a related charge, no proof of unethical or fraudulent
behavior by Petitioner was demonstrated, and the Board's extremely restrictive probationary requirements are not reasonably tailored to Petitioner's single minimal bookkeeping error.
RECOMMENDED that the Board of Nursing rescind its September 20, 1996 Order and enter a Final Order granting Petitioner an unrestricted L.P.N. license, without any probationary period.
RECOMMENDED this 1st day of MAY, 1997, at Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
F.A.C. provides a range of penalties for misdemeanor criminal convictions relating to the practice or ability to practice nursing and many listed offenses, of which Section 832.05(2)(a) is not one. The rule does not provide a disciplinary guideline, a range of penalty or mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c), F.S.
Qualified Representative Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol
Douglas M. Cook, Director
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
