STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF NURSING )

)

Petitioner, )

)

vs. ) CASE NO. 78-763

) BARBARA MARSTON KIRBY, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice, on June 21, 1978, in the Conference Room of Centro Espanol Hospital, 4801 North Howard Avenue, Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The State Board of Nursing's case was presented on its administrative complaint which had been served earlier on Barbara Marston Kirby. This administrative complaint alleged that Barbara Marston Kirby was guilty of violating Section 464.21(1)(b) , by having been asleep while on duty on or about January 18, 1978, while employed in Bayou Manor Nursing Home, St. Petersburg, Florida by having reported for duty and assumed her duties as a private duty nurse at Centro Espanol Hospital after having consumed an alcoholic beverage.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

Jacksonville, Florida 32202 For Respondent: No Appearance for Respondent.

ISSUE

The issue presented in this case is whether the Respondent was asleep while on duty on one occasion and was on duty after having consumed alcoholic beverages on another occasion, both constituting a violation of Section 464.21(1)(b), Florida Statutes.

FINDINGS OF FACT

1. Notice as required by Section 120.57, Florida Statutes, was provided Barbara Marston Kirby.

   
   

2. Barbara Marston Kirby is a registered nurse holding license no. 02192-

   2 issued by the Florida State Board of Nursing.

   
   

3. On or about January 18, 1978, Barbara Marston Kirby was employed at Bayou Manor Nursing Home, St. Petersburg, Florida. At that time she was observed by the nursing supervisor for some " 30 minutes in the patient dining room at approximately 5:00 on the morning of the 18th. Kirby was seated with a

   bath blanket wrapped around her shoulders and with her feet in another chair. Based on her observation her supervisor concluded that she was sleeping soundly. Sleeping while on duty was strictly prohibited at the nursing home.

   
   

4. On October 5, 1977, Barbara Marston Kirby was employed as a private duty nurse at Centro Espanol Memorial Hospital, Tampa, Florida. On that evening she was a private duty nurse for Mrs. Elsie Penn. Kirby had the smell of alcohol on her breath when she reported to work and this was noticed by one of the employees of Centro Espanol Hospital. She was subsequently observed by her patient's daughter, Mrs. Callie Penn Brown, who also smelled alcohol on her breath.

   
   

5. Carol Balizet, a registered nurse of eleven-years experience and Joan Pasquale, a registered nurse with twenty-eight years experience, both stated that it is not prevailing nursing practice and falls below the minimum standards of acceptable nursing practice for a nurse to report for duty with alcohol on her breath.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Florida State Board of Nursing has charged Barbara Marston Kirby with a violation of Section 363.21(1)(b) that Kirby was found to be asleep while on duty and was observed to have alcohol on her breath while on duty. The nursing supervisor of Bayou Manor Nursing Home where Kirby was found to be asleep on duty testified that it was against the rules of that institution for an employee to sleep while on duty. Obviously, an employee who is asleep cannot provide nursing care to those within her charge. Therefore, she is unable to meet the minimum standards of acceptable nursing practice.

   
   

7. Similarly, there was competent testimony received from registered nurses of substantial experience to the fact that it is unacceptable nursing conduct for a nurse to report for duty and remain on duty with alcohol on her breath.

   
   

8. Based upon the evidence presented in this case, it is clear that Kirby violated the provisions of Section 464.21(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law the Hearing Officer recommends to the Florida State Board of Nursing that the license of Barbara Marston Kirby as a registered nurse be suspended for a period of one year.

DONE AND ORDERED this 21st day of July, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

Jacksonville, Florida 32202

Barbara Marston Kirby, R.N. 904 Joe Street, Parkwood Acres New Port Richey, Florida 33552

Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator

Board of Nursing

6501 Arlington Expressway, Bldg. B Jacksonville, Florida 32211

Docket for Case No: 78-000763

Orders for Case No: 78-000763