STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

)

BERTHA HARRIS, )

)

Respondent. )

Case No. 05-1133PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 22, 2005, in Viera, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Bertha Harris, pro se

1245 Linmoor Circle

Palm Bay, Florida 32905 STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 464.018(1)(h), Florida Statutes (2003),1 and Florida Administrative Code Rule 64B9-8.005(1)(c), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 1, 2004, Petitioner, Department of Health, Board of Nursing (Department), filed an Administrative Complaint against Respondent, Bertha Harris (Ms. Harris), alleging that she violated Subsection 464.018(1)(h), Florida Statutes, for unprofessional conduct as defined by Florida Administrative Code Rule 64B9-8.005(1)(c), by leaving a nursing assignment without advising licensed nursing personnel. Ms. Harris requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on March 28, 2005, for assignment to an administrative law judge.

The final hearing was scheduled for May 12, 2005, but was continued twice at the request of Ms. Harris. At the final hearing, the Department called the following witnesses: Linda Lee Lovewell, Arthur H. Hutchins, Patty Avila, and Janice Nicolai. Petitioner's Exhibits 1, 2A through 2F, and 3 were admitted in evidence. At the final hearing Ms. Harris testified in her own behalf and presented no exhibits.

The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript, which was filed on August 2, 2005. The Department filed a Proposed Recommended Order on August 11, 2005. As of the date of this Recommended Order, Ms. Harris, has not filed any post-hearing submittal.

FINDINGS OF FACT

1. On March 14, 2004, Ms. Harris was employed at Melbourne Terrace Residential Care Center (Melbourne Terrace) as a certified nursing assistant (C.N.A.). Melbourne Terrace is a long-term care facility for geriatric residents.

2. On January 26, 2004, Ms. Harris was permanently assigned to the 11:00 p.m.-to-7 a.m. shift on the west wing of the facility. On March 5, 2004, Ms. Harris tendered her resignation effective March 24, 2004.

3. On March 14, 2004, Ms. Harris clocked-in at around 10:45 p.m. Ms. Linda Lovewell, a supervising licensed practical nurse (L.P.N.), had been advised that the east wing was short a

   C.N.A. on that date. She reassigned Ms. Harris to the east wing for the 11:00-to-7:00 shift. Two L.P.N.s, Patty Avila and Olga Vickerie, were working as supervisors on the east wing that evening.

4. When Ms. Harris got to the east wing, she was advised by Ms. Avila that she could not work on the east wing because Ms. Harris' sister also worked the same shift on the east wing. Apparently, Melbourne Terrace had adopted a policy that relatives could not work on the same wing during the same shift.

5. Ms. Avila told Ms. Harris to wait until she could call a supervisor to straighten out the reassignment. Ms. Harris was not given specific permission to go home. Ms. Harris did not

   wait, but clocked-out at 11:09 p.m. She did not advise either Ms. Avila, Ms. Lovewell, or Ms. Vickerie that she was clocking-

   out.

   
   

6. At the final hearing, Ms. Harris explained that she

   
   

   left because she had ridden to work with her sister and needed to catch a ride home with her cousin if she was not going to be able to work that evening. Although, there may have been a policy that would have prevented Ms. Harris from working on the east wing that evening, there was no evidence presented that Ms. Harris would have been prohibited from working on the west wing, which was her regular assignment.

7. Ms. Avila did not realize that Ms. Harris had left the facility until about an hour into the shift. She assumed that Ms. Harris was not on the east wing because she was cooling off because she was angry.

8. Melbourne Terrace's employee handbook provides that "[e]mployees may not leave assigned work area without the approval of the supervisor." Ms. Harris had received and read the handbook and was aware that she had to notify her supervisor before leaving.

9. Melbourne Terrace was short one C.N.A. on March 14, 2004. Because of Ms. Harris' abrupt departure, the facility was unable to secure a substitute C.N.A., leaving Melbourne Terrace

   in possible violation of staffing requirements and creating difficulties for lack of time to find a substitute C.N.A.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

11. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). In Slomowitz

    v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:

    [C]lear and convincing evidence 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, 429 at 800.

12. The Department alleged that Ms. Harris violated Subsection 464.018(1)(h), Florida Statutes, which provides that disciplinary action may be taken for "[u]nprofessional conduct, as defined by board rule." The Department further alleged that Ms. Harris violated Florida Administrative Code Rule 64B9-8.005(1)(c), which defines unprofessional conduct to include "[l]eaving a nursing assignment without advising licensed nursing personnel."

13. The Department has established by clear and convincing evidence that Ms. Harris left her nursing assignment on

    March 14, 2004, without advising licensed personnel that she was leaving. Thus, the Department has established a violation of Subsection 464.018(1)(h), Florida Statutes, for unprofessional conduct as defined by Florida Administrative Code Rule 64B9-8.005(1)(c).

14. Florida Administrative Code Rule 64B9-8.006(3)(p) provides that the range of penalties for a first time violation of Subsection 464.018(1)(h), Florida Statutes, is from a $250 fine to a $500 fine and probation.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Bertha Harris guilty of violating Subsection 464.018(1)(h), Florida Statutes; imposing an administrative fine of $250; and placing her on probation for one year with terms to be set by the Board of Nursing.

DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 18th day of August, 2005.

ENDNOTE

1/ Unless otherwise indicated, citations to the Florida Statutes shall be to the 2003 version.

COPIES FURNISHED:

Patrick L. Butler, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Bertha Harris

1245 Linmoor Circle

Palm Bay, Florida 32905

R. S. Power, Agency Clerk Department of Health

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

Dan Coble, RN, PhD, CNAA C, BC

Executive Director Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

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: 05-001133PL

Orders for Case No: 05-001133PL