STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02-0334PL

)

MARTINE RENAUE BELLIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on April 30, 2002.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo

Senior Attorney

Agency for Health Care Administration Practitioner Regulation, Allied Health 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Mark S. Solomon

Attorney for Respondent

901 South Federal Highway, Suite 300 Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue is whether Respondent concealed medications from Petitioner's inspectors so as to interfere with an

investigation, in violation of Section 456.072(1)(r), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 20, 2001, Petitioner alleged that Respondent was employed as a practical nurse by Seawinds Health Care Services on May 11, 2001. On that date, the Administrative Complaint alleges that Petitioner's Unlicensed Activity Office conducted an inspection of a facility operated by Seawinds Health Care Services. The Administrative Complaint alleges that Respondent knowingly and willfully removed medications from a medications cart and hid them, thereby interfering with Petitioner's inspection.

The Administrative Complaint alleges that Respondent thus violated Section 456.072(1)(r), Florida Statutes, by improperly interfering with an investigation or inspection authorized by statute or with any disciplinary proceeding. The Administrative Complaint seeks penalties from a reprimand through revocation of Respondent's license.

At the hearing, Petitioner called two witnesses and offered into evidence ten exhibits: Petitioner Exhibits 1-10.

Respondent called no witnesses and offered into evidence no exhibits. All exhibits were admitted except Petitioner Exhibits

2 and 9, which were proffered. Petitioner Exhibits 3, 5, and 7

were admitted only for Respondent's statements; Petitioner proffered them for all other purposes.

The court reporter filed the transcript on May 16, 2002. Petitioner filed a proposed recommended order on June 5, 2002.

FINDINGS OF FACTS

1. At all material times, Respondent has been licensed as a practical nurse in Florida, holding license number PN 1028401. On May 11, 2001, Respondent was employed by Seawinds Health Care Services as a licensed practical nurse.

2. After receiving complaints that Seawinds Health Care Services was operating an unlicensed drug and alcohol rehabilitation center, Petitioner's Unlicensed Activity Office and the Miami-Dade Police Department conducted an unannounced inspection of the facility on May 11, 2001. At the time of the arrival of the law enforcement officers, Respondent had custody of the key to the medication closet at the nurse's station.

3. During the course of the inspection, a law enforcement officer asked Respondent to unlock the medication closet. Respondent did so at about noon. Inside the closet were numerous bins bearing the names of different patients. Some medications were strewn between bins, and some medications were in unmarked bins.

4. The law enforcement officers briefly examined the bins and their contents and then proceeded elsewhere with their

   inspection. Later, they approached Respondent and asked her to execute a consent to search the closet that they had searched at noon. Respondent executed the consent and at about 2:30 p.m., she again unlocked the closet for inspection. At the time of the second inspection, the closet contained only medications stored in bins marked with the names of current patients.

5. After she was given her Miranda rights by a law enforcement officer, Respondent admitted that, at the direction of one of her supervisors, she had moved the other medications from the closet, where they had been at noon, to a nearby desk drawer. The medications in the desk drawer included medications for patients who had departed the facility. These medications included controlled substances.

6. A short period of time--not more than one-half hour--elapsed between the second opening of the closet and Respondent's admission that she had moved the missing medications to the desk drawer.

7. Respondent subsequently cooperated with the investigation and provided useful information. She had followed the direction of her supervisor to hide the improperly maintained drugs because she was scared. According to one law enforcement officer, Respondent helped the investigation and did not impede it; the delay caused by Respondent after she moved the medications was "minimal." The second law enforcement

   officer who testified agreed that Respondent did not impede the investigation. This officer also found Respondent cooperative and willing to testify against her supervisors.

   CONCLUSIONS OF LAW

   
   

8. 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.)

9. Section 456.072(1)(r) provides that Petitioner may impose discipline for "[i]mproperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding."

10. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Although Petitioner's investigator opined that Respondent's behavior interfered with the investigation, the two investigators who testified at the hearing--a detective and sergeant with the Miami-Dade Police Department--did not share this characterization of Respondent's behavior. To the contrary, they described Respondent as a helpful witness and her half-hour of evasion as "minimal" and insignificant.

12. Under these circumstances, Petitioner has failed to prove by clear and convincing evidence that Respondent improperly interfered with an investigation or inspection or disciplinary proceeding.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 5th day of July, 2002, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2002.

COPIES FURNISHED:

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

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Amy M. Pietrodangelo Senior Attorney

Agency for Health Care Administration Practitioner Regulation, Allied Health 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Mark S. Solomon Attorney for Respondent

901 South Federal Highway, Suite 300 Fort Lauderdale, Florida 33316

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: 02-000334PL

Orders for Case No: 02-000334PL