STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 98-1091

)

CHERYL ANN WASCONIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

June 24, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33601

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a one-count Administrative Complaint dated December 19,

1997, Petitioner charged Respondent, a licensed practical nurse, violated the provisions of Section 464.018(1)(c), Florida Statutes, "by [having been] found guilty, regardless of adjudication, of a crime in any jurisdiction which directly related to the practice of nursing or the ability to practice nursing." The predicate for such conclusion was Petitioner's charge that:

On or about September 19, 1995, Respondent entered a plea of Nolo Contendere to one (1) count of "Driving Under the Influence", a first degree misdemeanor pursuant to section 316.193(1), Florida Statutes, in case number 94017854MM10A, in Broward County Court.

Respondent was adjudicated guilty and placed on probation for nine (9) months and ordered to pay a fine.

Respondent filed a response to the Amended Administrative Complaint which disputed the factual allegations contained in the amended complaint and requested a formal hearing. Consequently, Petitioner forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner's Exhibit 1 (the court status document reflecting Respondent's conviction for driving under the influence) was received into evidence. Post-hearing, Petitioner filed Petitioner's Exhibit 2 for identification (a certification document and letter regarding Respondent's licensure status) and Petitioner's Exhibit 3 for identification (copies of documents

related to Respondent's disciplinary history). Respondent's objection to Petitioner's Exhibits 2 and 3 were sustained, and they were not received into evidence. The parties called no witnesses and offered no further proof at hearing; however, Respondent was accorded leave to depose Petitioner's representative(s) post-hearing regarding the Board of Nursing's compliance with Sections 120.53, 455.537, and 455.627, Florida Statutes. Respondent subsequently deposed Angela Hall and Ruth Stiehl, and their deposition have been received into evidence as Respondent's Exhibits 1 and 2, respectively.1

The hearing transcript was filed July 7, 1998, and the parties were accorded leave until August 13, 1998, to file proposed recommended orders. Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript has been filed. Rule 28-106.216(2), Florida Administrative Code. The parties elected to file such proposals and they have been duly considered.

FINDINGS OF FACT

1. Respondent, Cheryl A. Wasconis, is, and was at all times material hereto, a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0797261.2

2. On or about September 19, 1995, in the Circuit/County Court, Broward County, Florida, Case No. 94017854MM10A, Respondent entered a plea of nolo contendere to one count of driving under the influence (DUI), an offense proscribed by

   Section 316.193(1), Florida Statutes. Respondent was adjudicated guilty of the offense, and sentenced to nine months probation, a six month driver's license suspension, a $500 fine, court costs, and mandatory attendance at two Alcoholics Anonymous meetings per week (presumably for the term of her probation).3

3. Respondent, although accorded the opportunity, elected not to testify at hearing or to offer any explanation of the circumstances surrounding her nolo contendere plea or the reasons for entering such plea. See Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985). Similarly, the Department offered no proof regarding the circumstances (particulars) of the offense, or that the occurrence was other than an isolated event in Respondent's personal history. Finally, it was agreed between the parties, that Respondent was not actively practicing nursing at the time of her arrest or at the time she entered her plea to the charge.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.569, 120.57(1), and 120.60(5), Florida Statutes.

5. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). That standard requires that "the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in

   issue. 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).

6. Regardless of the disciplinary action sought to be 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 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Moreover, in determining whether Respondent violated the provisions of Section 475.25(1), as alleged in the Amended 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." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

7. Pertinent to this case, Section 464.018, Florida Statutes, provides:

   1. The following acts shall be grounds for disciplinary action set forth in this section:

      
      

      * * *

      (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

8. Given the facts as found or, stated differently, the paucity of proof, it cannot be resolved, with the requisite degree of certainty, that the offense to which Respondent pled nolo contendere and was adjudicated guilty was "a crime . . . which directly relates to the practice of nursing or to the ability to practice nursing." Consequently, the Department has failed to establish that Respondent violated the provisions of Section 464.018(1)(c), Florida Statutes, as alleged in the Amended Administrative Complaint.

9. In reaching the foregoing conclusion, it is observed that the offense to which Respondent pled and was adjudicated guilty (misdemeanor DUI) was not a crime which, as a matter of law, evidences a lack of honesty, integrity, baseness or danger to the public welfare. Cf Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3d DCA 1987), (Physician's conviction for solicitation to commit first degree murder evidenced warped judgment and disregard for human life, and directly related to the practice of medicine or to the ability to practice medicine so as to form a basis for disciplinary action.), and Rush v. Department of Professional Regulation, 448 So. 2d 26 (Fla. 1st DCA 1984), (Conviction of a crime, such as conspiracy to import marijuana, which presents a danger to the public welfare, will be an adequate basis for disciplinary action against a practitioner.) Rather, it is an offense which may or may not, depending on the surrounding

circumstances and the Respondent's history, evidence an impaired practitioner or represent a danger to the public (i.e., because of an abuse of alcohol or narcotics, the practitioner is unable to practice nursing with reasonable skill and safety). Major v. Department of Professional Regulation, 531 So. 2d 411 (Fla. 3d DCA 1988). Here, there was no proof that Respondent had a history of alcohol or drug abuse, or that the subject occurrence (driving while under the influence) was other than an isolated incident in Respondent's personal life. Under such circumstances, it cannot be concluded that her conviction "directly relates to the practice of nursing or the ability to practice nursing." Section 464.018(1)(c), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered which dismisses the Amended Administrative Complaint.

DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 8th day of September, 1998.

ENDNOTES

1/ Given the result reached, it is unnecessary to address whether the Department (Board) has complied with the provisions of Sections 120.53, 455.537, and 455.627, Florida Statutes.

Nevertheless, given the wording of Section 455.537, and the 1992 amendments to Section 120.53, Florida Statutes, it is observed that much of Respondent's argument is unpersuasive. See Caserta v. Department of Business and Professional Regulation, 686 So. 2d 651 (Fla. 5th DCA 1996).

2/ The parties stipulated to Respondent's licensure status as stated in paragraph 1.

3/ The proof at hearing (Petitioner's Exhibit 1) did not reflect the degree of the offense to which Respondent stood convicted (i.e., a felony or misdemeanor), but, presumably, it did not rise above a misdemeanor, as alleged in the Amended Administrative Complaint.

COPIES FURNISHED:

Joseph S. Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33601

Marilyn Bloss, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-001091

Orders for Case No: 98-001091