STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1274

)

LULA MAE KEMP THARPE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 8, 1979, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an administrative complaint filed by the Florida State Board of Nursing against Lula Mae Kemp Tharpe alleging that Tharpe had continued to practice professional nursing in the State of Florida after her license as a registered nurse had been terminated for failure on the part of Tharpe to timely renew said license, said practice being a violation of Section 464.151(2), Florida Statutes. The issue presented in this case is whether the Respondent practiced professional nursing after her license had been terminated for failure to renew said license.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Robert L. McKinney, Esquire

3071 Southwest 27th Avenue Grove 27, Suite 7

Miami, Florida 33133 FINDING OF FACT

1. Lula Mae Kemp Tharpe was licensed as a registered nurse by the Florida State Board of Nursing until April 1, 1974, when said license was terminated for failure to renew.

   
   

2. Tharpe applied for reinstatement of her license to the Florida State Board of Nursing on May 1, 1978. Her application was denied by the Board on the grounds stated in its administrative complaint dated June 13, 1978.

   
   

3. Between April 1, 1974, and May 1, 1978, Tharpe was continuously employed as a professor of nursing at Florida International University. In her capacity as a professor of nursing, Tharpe went with students into the clinical area where she instructed in nursing function and practice. Her students were engaged in assessments, observations and care of patients.

4. The fact that Tharpe was not licensed was discovered in April of 1978, when the chairperson at the school of nursing called the Florida State Board of Nursing to confirm Tharpe's license status. It was determined that Tharpe had last been licensed in March, 1974.

   
   

5. Subsequent to the discovery that Tharpe was not licensed, her duties were adjusted to prevent her from engaging in the direct teaching of nursing with the Board's concurrence. At the conclusion of the academic year, Tharpe's duties were shifted again to eliminate her indirect participation in the teaching of nursing courses.

   
   

6. Tharpe was described by her colleagues as a very capable nursing instructor with a Bachelor of Science and Master's degree in nursing.

   
   

7. Tharpe's failure to renew her license was an oversight which occurred during a period when she was faced with the deaths of close family members after prolonged illnesses. This, together with the stresses involved within teaching nursing, caused her failure to initially renew her license. After her initial failure to renew, she did not receive any further renewal forms from the Board because her license had been terminated. Florida International University made no inquiry into her license status until 1978, because it was the policy of the University to check the license status of its newly employed faculty members but not of its old faculty members.

   
   

   CONCLUSIONS OF LAW

   
   

8. The administrative complaint filed by the Florida State Board of Nursing charges that Lula Mae Kemp Tharpe practiced nursing after her license as a registered professional nurse was terminated contrary to the provisions of Section 464.151(2), Florida Statutes. The facts presented demonstrate that Tharpe taught nursing to others in the course of her duties as a professor at Florida International University. Her duties included taking students into the clinical setting, where they performed nursing duties under Tharpe's supervision. These activities constitute the practice of nursing as defined in Section 464.021(2)(a)3, Florida Statutes. Tharpe continued in her employment and in the practice of nursing from April of 1974, when her license was terminated because of her failure to renew, until May of 1978.

   
   

9. The Board has great discretion to consider the facts surrounding the practice of a person after his or her license expires by the operation of law due to the failure to renew. It is appropriate to look at such factors in determining whether the individual has sought to avoid the Board's jurisdiction by allowing the license to lapse, to consider how long the person has practiced after the lapse of the license, to consider the background and experience of the individual, and the nature of the practice in which the individual engaged.

   
   

10. In this case, the stress of losing one's loved ones after a prolonged illness may mitigate the initial failure of Tharpe to renew her license promptly. However, Tharpe failed to renew her license for a period of four years during which she was actively engaged in teaching nursing to college-level students. Tharpe has a Bachelor's and a Master's degree in nursing, and it is not believable that in four years she did not realize that she had not been relicensed and take action to have her license reinstated. Considering the fact that she took no action to correct her oversight, her violation cannot be considered as a technical violation. However, the period of time that Tharpe has been deprived of the licensing privilege since her application was initially

presented to the Board should be considered in arriving at a just penalty. In addition, it should be considered that Tharpe has not departed from the acceptable standards of practice except in the matter of her licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the matters in mitigation, the Hearing Officer recommends that the license of Lula Mae Kemp Tharpe be reissued in April, 1980.

DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, 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

233 East Bay Street Jacksonville, Florida 32202

Robert L. McKinney, Esquire 3071 SW 27th Avenue

Grove 27, Suite 7

Miami, Florida 33133

Docket for Case No: 78-001274

Orders for Case No: 78-001274