STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIAN BUTLER, )

)

Petitioner, )

)

vs. ) Case No. 01-0170

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-appointed Administrative Law Judge,

Fred L. Buckine, held a formal hearing in this case on April 2, 2001, in Clearwater, Florida.

APPEARANCES

For Petitioner: Julian Butler, pro se

1305 Woodbine Street

Clearwater, Florida 33755

For Respondent: Edward A. Tellechea, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.

PRELIMINARY STATEMENT

On or about July 10, 2000, Petitioner submitted an application to the Board of Nursing (Agency) requesting exemption from disqualification from employment in long-term care facilities. The Agency, on or about November 29, 2000, notified Petitioner that his request for exemption from disqualification from employment had been denied. The denial was based upon Petitioner's criminal history consisting of several convictions for possession of cocaine, obstructing or opposing an officer without violence (two counts), driving while license was suspended or revoked, and a subsequent violation of probation.

On or about December 22, 2000, Petitioner filed a request for a formal administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner challenged the Agency's denial alleging that he could demonstrate he is not a present danger, that he has no criminal convictions within the last three years prior to his disqualification, and that he has successfully completed rehabilitation. On January 16, 2001, the Agency referred the case to the Division of Administrative Hearings for assignment to an administrative law judge.

On January 25, 2001, an Order of Pre-hearing Instructions and a Notice of Hearing, scheduling the final hearing for

March 2, 2001, with venue in Clearwater, Florida, was issued. Petitioner's request for a continuance was granted and by order dated February 21, 2001, the final hearing was rescheduled for March 9, 2001. A second continuance, by order dated March 2, 2001, rescheduling the final hearing for April 2, 2001, was granted upon a joint motion of the parties.

At the final hearing, Petitioner, appearing pro se, testified on his own behalf and presented the testimonies of Rose Baker, Candy McDuffy, Tabitha Quince Goss, and Phyllis Lenore Everett. Petitioner presented three exhibits.

Respondent's objection to Petitioner's three exhibits was granted, and Petitioner's exhibits were not received in evidence.

Respondent presented the testimony of Dr. Ruth Stiehl, Ph.D., R.N., Executive Director of the Board of Nursing, and presented six (R1-6) exhibits. Without objection Exhibits R1-6 were received in evidence. The transcript of this proceeding was filed April 20, 2001. The parties' Proposed Recommended Orders were considered.

FINDING OF FACTS

1. The Department of Health, Board of Nursing, is the state agency charged with regulating Certified Nursing Assistants pursuant to Chapter 455 and Chapter 464, Florida Statutes.

2. At all times material to this case, Petitioner, Julian Bulter, a licensed certified nursing assistant, was employed by a long-term care facility in Pinellas County, Florida, providing personal services to residents therein.

3. Petitioner, on or about December 4, 1997, entered a plea of nolo contendere to the charge of possession of cocaine. The Court withheld adjudication, placed Petitioner on probation, and ordered Petitioner to enter and complete a drug counseling treatment program.

4. Petitioner, on or about October 30, 1995, entered a plea of nolo contendere to the charge of possession of cocaine with intent to sell. The Court adjudicated Petitioner guilty.

5. Petitioner, on or about May 19, 1994, entered a guilty plea to the charge of possession of cocaine. The Court adjudicated Petitioner guilty.

6. Petitioner, on or about September 1, 1993, entered a plea of guilty to the charge of possession of cocaine. The Court adjudicated Petitioner guilty.

7. Petitioner, on or about June 30, 1992, entered a plea of guilty to the charge of possession of cocaine. The Court adjudicated Petitioner guilty.

8. Petitioner, as a part of his 1997 cocaine possession of cocaine sentence, was ordered by the court to enter and successfully complete a twelve-week outpatient drug treatment

   program sponsored by the Center for Rational Living, Inc. On or about May 6, 1998, the Center discharged Petitioner from their program citing his "unexcused absences" and the fact that he "left the program" as its reasons.

9. Petitioner has committed disqualifying criminal offenses as defined by Chapter 435, Florida Statutes, and the offense of possession of cocaine with intent to sell is not a victimless crime.

10. Petitioner's testimony of having entered and completed a "narcotics/alcoholic anonymous/ drug possession" class was not supported by documentation and, therefore, does not negate his failure to complete the outpatient drug treatment program as ordered by the court. Mr. Bulter maintained through his testimony, not withstanding his criminal record of several drug possessions, that he was never a "drug-user." In support of his "non-drug user" claim, he offered the testimony of his four witnesses and offered to be subject to unannounced, drug testing and screening at the discretion of the Agency should the Agency permit him to resume employment.

11. Petitioner's four witnesses, collectively, testified that he was not a cocaine addict; they had never seen or known him to consume or use cocaine; that he was not a danger to his family; and that he was a good worker. They had no knowledge of

    his having entered and/or completed a drug rehabilitation program.

12. By clear and convincing evidence, Petitioner has the burden to prove a criminal-free lifestyle for three years minimum since his last criminal encounter, successful completion of an approved rehabilitation program, and is not a danger to himself or residents of long-term care facilities. Petitioner proved a criminal-free lifestyle for three years since his last criminal encounter. Petitioner failed to prove by clear and convincing evidence successful completion of an approved rehabilitation program and, accordingly, failed to demonstrate that he does not pose a danger to himself or residents of assisted living care facilities.

13. Dr. Stiehl testified that the Board of Nursing initially disqualified Petitioner from practicing as a CNA in a long-term care facility based upon the above criminal offenses. Dr. Stiehl opined, that considering Petitioner's extended criminal offense free period and his adamant protestations of not being a drug-user, it is primarily his failure to demonstrate successful completion of an acceptable rehabilitation program that bars granting his requested exemption from disqualification. According to Dr. Stiehl, should Petitioner elect to undergo an approved program evaluation and the Nursing Board finds the results acceptable,

    favorable consideration would be given to Petitioner's renewed request for an exemption.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and of the parties pursuant to Section 120.57(1) and Section 120.69 and Section 435.07(3), Florida Statutes.

15. The Department of Health, Board of Nursing is the state agency charged with regulating CNAS pursuant to Chapter 464, Florida Statutes.

16. Section 464.018, Florida Statutes, in pertinent part, provides:

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

       
       

       * * * *

       
       

       1. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in Chapter 893, for any other than legitimate purposes authorized by this part.

          
          

17. Section 893.02, Florida Statutes, in pertinent part, provides:

    (4) "Controlled substance" means any substance named or described in Schedules I-V of s. 893.03. Laws controlling the manufacture, distribution, preparation, dispensing, or administration of such substances are drug abuse laws.

18. Section 893.03(2)(a)4, Florida Statutes, in pertinent part, states:

    (2)(a)4. Cocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine.

    
    

19. Section 435.06(2), Florida Statutes, provides that persons who have been found guilty of, regardless of adjudication, or plead nolo contendere or guilty to any offense listed under Section 435.02, Florida Statutes, must have their employment terminated or be placed in a position where background screening is not needed.

20. Petitioner's convictions for possession of cocaine are criminal offenses and therefore, are disqualifying offenses pursuant to Section 435.03(2), Florida Statutes, which provides, in pertinent part:

    1. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction. (Emphasis supplied.)

       
       

21. Section 435.07(3), Florida Statutes, provides in pertinent part:

    1. In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and

    convincing evidence that the employee should not be disqualified from employment.

    Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .

    
    

22. Petitioner was convicted or plead nolo contendere to five separate counts of possession of cocaine and, thus, was properly disqualified from practicing as a CNA in a long-term care facility pursuant to Sections 435.03(2), and 435.06(2), Florida Statutes.

23. The evidence demonstrated that more than three years has elapsed since Petitioner's last criminal incident. Petitioner therefore, met his burden with regard to this element.

24. Petitioner failed to demonstrate by clear and convincing evidence that he has completed a rehabilitation program and, therefore, has failed to carry the burden with regard to this element.

25. Petitioner failed to demonstrate by clear and convincing evidence that he would not present a danger to

    himself and to the residents of long-term care facilities should his employment exemption be granted.

26. The Agency's denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant in long-term care facilities was proper.

27. The five charges for possession of cocaine described in the findings of fact coupled with Petitioner's denial of his personal use of cocaine use implies the sale of cocaine to others persons. Petitioner's lack of rehabilitative efforts in drug related programs evidences his failure to appreciate the seriousness of his criminal record and demonstrates the inappropriateness of trusting Petitioner with employment in long-term care facilities.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes.

DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida,

FRED L. BUCKINE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001.

COPIES FURNISHED:

Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Julian Butler

1305 Woodbine Street

Clearwater, Florida 33762

Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

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: 01-000170

Orders for Case No: 01-000170