STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1954

)

DALE S. HENDRICKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above captioned matter, after due notice to the parties, at Clearwater, Florida, on February 26, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

218 East Forsyth Street Jacksonville, Florida 32202

For Respondent: Thomas G. Ford, Esquire

1904 Drew Street

Clearwater, Florida 33515 ISSUE PRESENTED

Respondent's alleged violation of Section 464.21(1)(b), Florida Statutes.

FINDINGS OF FACT

1. On June 30, 1975, Respondent and Joanne Holmes, both licensed practical nurses employed at the Clearwater Convalescent Center, Clearwater, Florida, were performing duties on the 3:00 p.m. to 11:00 p.m. shift. According to Holmes, during the shift Respondent asked her for the key to the medicine room. Later, Holmes entered the medicine room and saw Respondent bending down on the floor beside her pocket book. She observed that the pocketbook contained a plastic pill container which was approximately one fourth full of pills. She then left the room and Respondent came out thereafter. Later on, Respondent asked her for the key again and Holmes saw her a second time kneeling on the floor with the pill container that then appeared to contain more pills than it had the previous time. Subsequently, during a meal break, Holmes saw Respondent open her purse to obtain money and notified that the bottle, which had a patient's name, Lloyd Rook, on it, was now three quarters full of what appeared to be Valium, Daravon, Librium, and Tylenol. Holmes was able to identify the pills from a distance of about seven feet by their distinctive color. Subsequently, during the shift, Holmes saw Respondent in the medicine room again taking three Kling bandages wrapped in brown paper from a cabinet and put them in her purse. The bandages were identifiable as property belonging to the Convalescent Center by reason of

   the distinctive brown wrapping which is used in bulk purchases and was of the type used by the hospital. The bandages are customarily kept in the medicine room. The pills were of the kind kept in the medicine room that were ordered by doctors for individual patients. During the occasions when Holmes observed the Respondent, the door to the medicine room was open.

   
   

2. June 30, 1975 was the last day of work for Respondent at the Clearwater Convalescent Center because she was leaving for a better position (Testimony of Respondent).

   
   

3. Holmes reported the incidents she had observed to the patient care coordinator who was also the assistant director of nursing, Kathy Beich. She in turn telephoned her supervisor and he advised her to have both Holmes and Respondent bring their pocketbooks to her office. She did so, and when they arrived, she informed them that a nurse had reported some medicine had been taken from a nursing station and asked them to empty the contents of their purses. Holmes did so, but the Respondent refused. Respondent then called her husband and thereafter Beich asked her if she was in possession of a medicine bottle with a patient's name on it. Respondent replied in the affirmative and both Holmes and Beich then hears sounds as if she was "popping" a bottle lid, emptying its contents in her purse and then replacing the lid. Respondent then produced the bottle on which was the name of Lloyd Rook, and which showed a prescription for Phenaphin (Testimony of Holmes, Beich).

   
   

4. Respondent testified at the hearing and denied stealing the bandages and pills. She admitted taking the empty pill container, but claimed that she had done so because she was caring five or six pill containers of her own in her purse on the day in question and one had broken. She also wished to put them all in one container because too many containers caused a mess in her purse.

   Her pills consisted of a food supplement, Benadryl for allergy to penicillin, minocen, and enduron which she carried for her husbands heart condition because he frequently forgot to take his pills. She also admitted that she had three Kling bandages in her purse that she had purchased at Eckerds drug store to use for her dog's skin infection . They had come in a blue and white package but she had taken them out of the package. She testified that the reason she had not emptied her purse for Beich was because she had been falsely accused of taking drugs on two previous occasions and when the mistake was discovered, Beich had apologized to her. She was therefore "tired of being hassled. She previously had worked for eight (8) months at Sun Coast Hospital with no difficulties as a medicine nurse. (Testimony of Respondent).

   
   

5. Upon recall Beich denied ever having apologized to Respondent concerning accusations of drug thefts. Empty pill containers are usually thrown away, but sometimes are used for refills. (Testimony of Beich).

   
   

6. Respondent's husband verified that his wife carried heart pills for him customarily and that both he and Respondent were allergic to Carvon.

   
   

7. Respondent enjoys a good reputation for her nursing abilities and for her veracity among past and present associates and supervisors (Respondent's Composite Exhibit 1,2,3).

   
   

   CONCLUSIONS OF LAW

   
   

8. Respondent is alleged to have violated Section 464.21(1)(b), Florida Statutes, by converting three Kling bandages, property of the Clearwater Convalescent Center, to her own use on or about June 30, 1975, and by having in

   her purse on the same date, a pill container marked lloyd Rook, No. 40423", a patient of the Clearwater Convalescent Center, which contained an assortment of prescription drugs including Darvon, Valium, and Vistaril.

   
   

   Section 464.21(1)(b), Florida Statutes, provides as follows: 464.21 Disciplinary Proceedings.--

   1. GROUNDS FOR DISCIPLINE.--The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:

      * * *

      (b) Unprofessional conduct, which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding actual injury need not be established."

      
      

9. Although the definition of "unprofessional conduct" is general in nature, it is considered that larceny of property from hospital premises could clearly be viewed as a "departure from the minimal standards of acceptable and prevailing nursing practice." Although the possession of the empty pill container is considered de minimis, the thrust of the allegation set forth in paragraph 2 of the Administrative Complaint, even though not specifically alleged, is the theft of the drugs which were the property of persons other than the Respondent. Even though this aspect of the alleged violation is not pleaded specifically as a theft of the drugs in question, the proof adduced by Petitioner was designed to establish such an offense. The Complaint is sufficient in detail adequatelyto place the Respondent on notice as to the bases for the alleged violation of the statute.

   
   

10. Administrative licensing proceedings of this type are penal in nature and the evidence must be clear and convincing to support a violation of statute or regulation authorizing discipline or other adverse action. The evidence falls short of such a standard in this case. Respondent presented an unusual, but conceivable explanation for her possession of both the bandages and the pill container. Neither the bandages nor the drugs allegedly taken were retrieved from the respondent nor were losses thereof established. Thus, Petitioner was unable to corroborate the testimony of Holmes which was contradicted by Respondent. The character evidence submitted in Respondents behalf also has been considered. It is concluded that Petitioner has failed to establish by clear and convincing evidence that Respondent violated Section 464.21(1)(b), Florida Statutes, as alleged.

RECOMMENDATION

That the allegations against the Respondent be dismissed.

DONE and ENTERED this 22nd day of March, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire

218 E. Forsyth Street Jacksonville, Florida 32202 Counsel for Petitioner

Thomas G. Ford, Esquire 1904 Drew Street

Clearwater, Florida 33515 Counsel for Respondent

Docket for Case No: 75-001954

Orders for Case No: 75-001954