STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4055

)

LYNDA M. SAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on December 2, 1997. The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Thomas E. Wright

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: T. A. Delegal, III

Delegal & Merrett, P.A.

424 East Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Sections 455.227(1)(q), 455.227(1)(f), and 464.018(a)(b), Florida

Statutes, and Rule 64B9-8.005(1)(b), Florida Administrative Code, by a denial of an application in another state.

PRELIMINARY STATEMENT

By Administrative Complaint, Petitioner alleged that on June 6, 1996, Virginia denied Respondent’s application for a nursing license on the grounds of Respondent’s alleged diversion of controlled substances and unprofessional conduct. On this basis, Petitioner sought to discipline Respondent’s Florida nursing license. Respondent denied the material allegations and demanded a formal hearing.

At the hearing, each party called one witness.

Petitioner offered into evidence two exhibits, which were admitted.

The court reporter filed the transcript on December 24, 1997.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a registered nurse in Florida, holding license number RN 1446212. She has been so licensed for 14 years. Her home address is in Plattsburg, New York.

2. For most of her career, Respondent has worked as a traveling nurse and is licensed in at least six states. In this capacity, Respondent has been employed by an agency and assigned to various temporary assignments around the country.

3. At one point, Respondent worked as a traveling nurse in Virginia. Using a temporary nursing license, Respondent worked for one week at a Virginia hospital. She had intended

   to work the typical 6-13 weeks. However, she returned home prematurely following an incident at the hospital to which she had been assigned.

4. There had been a problem with diverted controlled substances at this hospital prior to Respondent’s arrival. After a few days on the job, someone accused Respondent of diverting controlled substances, and the hospital administration suspended Respondent without pay. Under her agency arrangement, Respondent did not have to pay her lodging expenses. However, as a result of the suspension, she was left with this expense and no income to pay it, so she readily returned home and, at some point, accepted another assignment. She never learned of any adverse action taken against her in Virginia for the alleged incident at the hospital.

5. Unknown to Respondent, her application for a temporary license in Virginia automatically constituted an application for a permanent license. Although Respondent received no prior notice of the Virginia nursing board’s action, the board eventually denied her licensure on the basis of the alleged incident at the hospital.

6. Petitioner presented this case on the basis of the license denial of the Virginia board of nursing. The evidence in this record does not establish that Respondent committed the acts of which she was accused at the Virginia hospital. Moreover, the evidence in this record establishes that

   Respondent did not receive notice and an opportunity to be heard on the Virginia charges prior to or following the Virginia license denial.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

8. Section 455.227(1)(f) authorizes discipline for “[h]aving a license to practice nursing revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.”

9. Rule 64B9-8005(1)(b) provides that the Board of Nursing “shall” impose discipline upon a determination that a licensee has had disciplinary action taken against a nursing license by another jurisdiction.

10. Under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, no state may revoke a licensee’s property right in his or her license without due process of law. Section 455.227(1)(f) implicitly requires that the adverse action by another jurisdiction comply with the requirements of due process, such as notice and an opportunity to be heard. Due process is insufficient if it

merely ensures notice and an opportunity to be heard as to the Florida charges, if they are based on another jurisdiction’s disciplinary action, when the licensee shows, as has Respondent in this case, that the disciplinary action taken in the other jurisdiction did not comply with the requirements of due process.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order dismissing the administrative complaint.

DONE AND ENTERED this 26th day of January, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1998.

COPIES FURNISHED:

Thomas E. Wright

Office of the General Counsel

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

T. A. Delegal, III Delegal & Merrett, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Marilyn Bloss, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004055

Orders for Case No: 97-004055