Judges: LARRY J. SARTIN
Agency: Department of Health
Latest Update: Feb. 05, 1988
Summary: Whether Mr. Ross' license as a practical nurse in the State of Florida should be issued conditioned on a 1 year period of probation?Practical nurse license should be issued without restrictions. Prior conviction under 464.018(1)(c) not related to his ability to practice.
87-3123STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SAMUEL D. ROSS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3123
)
BOARD OF NURSING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 4, 1987, in Jacksonville, Florida.
APPEARANCES
For Petitioner: Samuel D. Ross, pro se
2583 Minosa Circle North Jacksonville, Florida 32209
For Respondent: Susan Tully Proctor
Assistant Attorney General Board of Nursing
Suite 1602, The Capitol Tallahassee, Florida 32399-1050
PROCEDURAL STATEMENT
Pursuant to Order dated May 18, 1987, the Respondent, the Board of Nursing (hereinafter referred to as the "Board"), licensed the Petitioner, Samuel D. Ross, as a licensed practical nurse in the State of Florida. The Order also placed Mr. Ross on probation for a period of 1 year. Mr. Ross has requested an administrative hearing to challenge the portion of the Board's Order of May 18, 1987, which places him on probation. At the formal hearing the Board offered 6 exhibits which were marked as "Respondent's" exhibits and accepted into evidence. The Board did not call any witnesses.
Mr. Ross testified on his own behalf and offered 8 exhibits. Mr. Ross' exhibits were marked as "Petitioner's" exhibits and accepted into evidence.
The Board has timely filed a proposed recommended order which contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Mr. Ross did not file a proposed recommended order.
ISSUE
Whether Mr. Ross' license as a practical nurse in the State of Florida should be issued conditioned on a 1 year period of probation?
FINDINGS OF FACT
Mr. Ross applied for licensure by examination as a licensed practical nurse in 1986.
By Order dated January 13, 1987, the Board denied Mr. Ross' application. The Board denied the application based upon its conclusion that Mr. Ross was guilty of violating Section 464.018(1)(c) and (h), Florida Statutes.
In its Order of January 13, 1987, the Board indicated that it would reconsider Mr. Ross' application in 6 months, upon the request of Mr. Ross.
Mr. Ross requested an informal hearing pursuant to Section 120.57(2), Florida Statutes, to contest the Board's Order of January 13, 1987. The informal hearing was held on February 5, 1987.
At the request of the Board, Mr. Ross submitted a psychological evaluation conducted by Philip R. Yates, Ph.D. Mr. Ross also submitted an additional psychological evaluation conducted by A. de la Torre, M.D.
Based upon the Board's review of the evaluations performed by Dr. Yates and Dr. de la Torre, the Board again concluded that Mr. Ross was guilty of violating Section 464.018(c) and (h), Florida Statutes. The Board, therefore, denied Mr. Ross' application. The Board agreed, however, that it would reconsider Mr. Ross' application upon submission of a satisfactory third evaluation by a Board-certified psychiatrist specializing in psychosexual counseling. The person selected to perform the third evaluation was to review the previous evaluations of Dr. Yates and Dr. de la Torre. In order for the Board to reconsider its denial of Mr. Ross' application, the Board indicated that the third evaluation would have to resolve the conflicts between the first two evaluations and include a recommendation that Mr. Ross is able to engage in the safe practice of nursing.
Mr. Ross submitted a third evaluation. The evaluation was conducted by William M. Hunt, III, M.D.
Following the submission of the third evaluation, the Board issued an Order dated May 18, 1987. Paragraph 3 of the May 18, 1987, Order provides the following:
3. Applicant has submitted a satisfactory third psychological evaluation which reflects that the evaluating psychiatrist had reviewed the previous reports, which resolves the conflicts between the two previous evaluations, and which includes a recommendation that the Applicant is able to engage in the safe practice of nursing.
Based in part on the evaluation of Dr. Hunt, the Board concluded that Mr. Ross' application should be approved. Because of the Board's conclusion that Mr. Ross was guilty of violating Section 464.018(1)(c), Florida Statutes, the Board concluded that "a period of probation is necessary to protect the public..."
The terms of Mr. Ross' probation included requirements that Mr. Ross not violate any law, or rule or order of the Board, that he submit written reports to the Board quarterly, that he report any change in residence address, name, employer or place of employment or arrest and that he cause reports to be furnished to the Board by his employer. The period of probation was 1 year.
The Board's conclusion that Mr. Ross is guilty of violating Section 464.018(c), Florida Statutes, is based upon Mr. Ross' conviction of exhibition of sexual organs in 1978 and his conviction of an unnatural and lascivious act in 1979.
On December 7, 1978, Mr. Ross plead guilty to exhibition of sexual organs in violation of Section 800.03, Florida Statutes. He was found guilty of the offense and fined approximately $117.00.
On December 31, 1979, Mr. Ross plead nolo contendere to an unnatural and lascivious act in violation of Section 800.02, Florida Statutes. He was found guilty of the offense and sentenced to thirty days in the Duval County Jail. His sentence was suspended and he was ordered to pay court costs.
Mr. Ross was 18 or 19 years of age at the time of his offenses in 1978 and 1979. Mr. Ross was 27 years of age at the time of the formal hearing of this case.
Mr. Ross is currently employed as a licensed practical nurse by Kimberly Nurses. Mr. Ross was employed by Kimberly Nurses as a nursing assistant prior to his licensure.
Mr. Ross has not experienced any difficulty in his employment as a result of the conditions of probation imposed by the Board.
Although Mr. Ross has not sought employment elsewhere, he has not done so because of his concern with the conditions of his licensure. He would like to seek a more permanent position but will not do so until this proceeding is concluded.
Mr. Ross' convictions arose as a result of his sexual preference. Mr. Ross is "gay" and at the time of his convictions he frequented public places as a way of meeting others of his sexual persuasion. Although Mr. Ross realizes that he violated the law and accepts the fact that he will always be gay, he has abandoned the "gay life style" of his younger years.
The evaluation of Mr. Ross performed by Dr. Hunt resolved the conflicts between the report of Dr. Yates and Dr. de la Torre.
Dr. Hunt made the following observations, among others, about Mr. Ross:
The evaluation provided no evidence that would indicate that Mr. Ross suffers from any diagnosable mental disorder,
according to DSM III criteria. The activities in 1978 and 1979 can best be seen as involving an identity disturbance of late adolescence, a very common condition. Since that time Mr. Ross's history, corroborated with clinical interview, provides evidence of significant personality maturing since that time, and no indications of a pattern of aberrant behavior overtime [sic] that would warrant a diagnosis of a passive-aggressive personality disorder or any other personality disorder. Mr. Ross's approach to the entire licensure process, including his approach and manner during my interview all suggested a fairly high level of
personality organization and integration, in spite of his sexual preferences.
There is no history, at least in the past seven years, that would indicate any increased probability that Mr.
Ross's performance as a nurse would not be in the best interests of the nursing profession nor the patients he serves. Although Dr. Yates's report makes reference to some concerns about his ability to modulate his anger and avoid acting out in problematic, passive- aggressive way [sic], as well as some statements regarding unresolved psychosexual issues, it should be noted that the statements were in the context of the understanding by Dr. Yates at that point of what was meant by having abandoning [sic] life style. In the context of my current evaluation this
information was finally judged by me to be similar to a false positive laboratory test.
In summary, after what I determined to be an adequate evaluation, I recommend that the applicant, Mr. Ross, is able to engage in the safe practice of nursing and that the board favorably consider
his application for licensure in nursing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).
There are essentially two issues in this proceeding: (1) Whether the Board has the authority to issue a license as a practical nurse with the restrictions it has placed on Mr. Ross' license; and (2) Whether the crimes for
which Mr. Ross was convicted in 1978 and 1979 directly relate to the practice of nursing or to Mr. Ross' ability to practice nursing? The statutes which govern the resolution of these issues are penal rather than regulatory. Therefore, the applicable statutes in this case should be strictly construed and followed.
Farzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).
Section 464.008(2), Florida Statutes (1987), the starting point in resolving the first issue in this case, provides:
Each applicant who passes the examination and provides proof of graduation from an approved nursing program shall, unless denied pursuant to
s. 464.018, be entitled to licensure as a registered professional nurse or a licensed practical nurse, whichever is applicable. [Emphasis added].
Section 464.018(1)(c), Florida Statutes (1987), provides:
The following acts shall be grounds for disciplinary action set forth in this section:
* * *
(c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. A plea of nolo contendere shall be considered a
conviction for purposes of this provision.
Although the prohibited acts set out in Section 464.018(1), Florida Statutes (1987), are specifically grounds for disciplinary action against a person who has already been licensed as a nurse, Section 464.008(2), Florida Statutes, makes it clear that the Board may "deny" an application for licensure for any violation of the provisions of Section 464.018(1), Florida Statutes. At issue, however, is the question of whether the Board may impose some sanction other than to deny a license application if an applicant is guilty of violating one of the prohibited acts of Section 464.018(1), Florida Statutes.
In support of its position that the Board may impose probation on an applicant upon issuance of a license, the Board has argued that Section 464.018(2), Florida Statutes, provides the requisite authority. Section 464.018(2), Florida Statutes (1987), provides the following with regard to the penalties which the Board may impose for violations of Section 464.018(1), Florida Statutes:
When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Refusal to certify to the department an application for licensure.
Revocation or suspension of a
license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the nurse on probation for a period of -time and subject to such conditions as the board may specify, including requiring the nurse to submit to treatment, to attend continuing education courses, to take an examination, or to work under the supervision of another nurse.
It must remembered that Section 464.018, Florida Statutes, specifically governs the disciplining of nurses who have already been licensed by the Board. Therefore, all of the sanctions of Section 464.018(2), Florida Statutes, except one, specifically apply to cases involving licensed nurses and not persons who are applying for licensure. Only Section 464.018(2)(a), Florida Statutes, provides a sanction which specifically applies to persons who are applying for licensure; and that sanction is to deny the application.
Additionally, Section 464.008(2), Florida Statutes, specifically provides that a license should be approved if the applicant has passed the required examination and met the other requirements of licensure unless the application is "denied" pursuant to Section 464.018, Florida Statutes.
Based upon the foregoing, it is concluded that the Board may not place Mr. Ross' license on probation for the alleged violation of Section 464.018(1)(c), Florida Statutes.
Turning to the second issue, the Board has cited a number of cases in support of its position that Mr. Ross has been convicted of a crime which "directly relates to the practice of nursing or the ability to practice nursing." Those cases, however, are distinguishable from the facts in this case.
First, the Board has cited Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984). Rush involved a podiatrist who was convicted of conspiracy to possess and import marijuana, a controlled substance. The court concluded that this conviction constituted the conviction of a crime which directly related to the practice of podiatry or to the ability to practice podiatry. The court's conclusion was based upon the fact that podiatrists are licensed by the State to prescribe and dispense controlled substances. By conspiring to possess and import an illegal controlled substance, Mr. Rush had breached the position of trust bestowed upon him as a podiatrist to prescribe and dispense controlled substances. In breaching the public trust, he had caused a danger to the public by conspiring to possess and import marijuana, which had been recognized to be a danger to the public health.
The second case cited by the Board is Greenwald v. Department of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987). This case involved a physician convicted of solicitation to commit first degree murder of his wife. In concluding that this crime directly related to the practice of medicine or the ability to practice medicine, the court concluded that the physician's disregard for human life was the antithesis of that which is required and expected of a physician--the saving of human life.
The facts in this case fail to prove that the crimes for which Mr. Ross was convicted are directly related to the practice of nursing or his ability to practice nursing. No evidence was presented by the Board which indicates that Mr. Ross' acts have endangered the public, violated the public trust or were contrary to that which is required and expected of a nurse. All the evidence showed is that Mr. Ross, while at a younger age, pursued a gay life style. Without diminishing the fact that Mr. Ross violated the law, it must be remembered that no evidence was offered which indicates that Mr. Ross' action in anyway harmed the public or that Mr. Ross' actions were not welcomed or perceived to be welcome by those with whom he was involved.
Additionally, the Board has required Mr. Ross to submit to psychological evaluations to determine his fitness to practice nursing. Dr. Hunt's evaluation, which the Board specifically accepted in its Order of May 18, 1987, indicates that Mr. Ross is "able to engage in the safe practice of nursing" and recommends "that the Board favorably consider his application for licensure in nursing." This evaluation was based, at least in part, on the fact that the convictions at issue in this proceeding occurred 8 to 9 years ago and "can best be seen as involving an identity disturbance of late adolescence, a very common condition."
Based upon the foregoing, it is concluded that Mr. Ross has not been convicted of a crime which directly relates to the practice of nursing or to the ability to practice nursing. Mr. Ross is, therefore, not guilty of violating Section 464.018(1)(c), Florida Statutes.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a license as a licensed practical nurse in the State of
Florida be issued to Samuel D. Ross without restriction.
DONE and ENTERED this 5th day of February, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3123
The Board has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those
proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Board's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection
1 |
| 1-3. |
2 |
| 4-6 and 12-13. |
3 |
| 7. |
4 |
| 9-10. |
5 |
| 12. |
6 |
| 13. |
7 |
| 5-9. |
8 |
| 10 and 15. |
9 |
| 16. |
COPIES
Samuel |
FURNISHED:
D. Ross |
|
2583 Minosa Circle North Jacksonville, Florida 32209
Susan Tully Proctor Assistant Attorney General Board of Nursing
Suite 1602 - The Capitol Tallahassee, Florida 32399-1050
Judie Ritter Executive Director
Department of Professional Regulation
111 East Coastline Drive Room 504
Jacksonville, Florida 32201
William O'Neil General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING
SAMUEL D. ROSS,
Petitioner,
DOAH CASE NO. 87-3123
BOARD OF NURSING,
Respondent.
/
ORDER
Petitioner, Samuel D. Ross applied for licensure by examination as a licensed practical nurse; his license (#0855351) was granted on a one year probation.
Petitioner requested a formal hearing on his conditional licensure and one was held before the Division of Administrative Hearings on December 4, 1987. A Recommended Order was issued by the Hearing Officer on February 5, 1988, and was forwarded to the Board pursuant to Section 120.57, Florida Statutes. A copy of the Recommended Order is attached to and by reference made a part of this Order.
The Board of Nursing met on April 14, 1988, in Miami, Florida, to take final agency action. The Board has reviewed the entire record in the case. Respondent, Board of Nursing, submitted Objections to Conclusions of Law.
FINDINGS OF FACT
The Board accepts and adopts the findings of fact contained in the Recommended Order.
CONCLUSIONS OF LAW
The conclusions of law are adopted with the exception of the Hearing Officer's conclusions that:
the crimes for which Petitioner was convicted are not related to nursing or the ability to practice nursing and;
that a board is not authorized to issue a license on conditions, which are specifically rejected by the Board. The Board specifically concludes as a matter of law that Petitioner's crimes do relate to the practice of nursing or his ability to practice nursing and that a Board does have the authority to issue a license on probation.. In its conclusions, the Board relies on the Objections to the Recommended Order which is attached.
PENALTY
The Board specifically rejects the recommendation of the Hearing Officer and orders that the probation originally ordered, pursuant to the order of May 18, 1987, terminate as scheduled on May 18, 1988. As reasons for its departure from the Hearing Officer's recommendation, the Board relies upon its reversal of the conclusions of law and determines that as a protection for the public safety, that Petitioner's probation should continue.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within 30 days from the date this order is filed.
This order shall become effective upon filing with the clerk of the Department of Professional Regulation.
DONE and ORDERED this 24th day of May, 1988.
JEANNE STARK, CHAIRMAN FLORIDA BOARD OF NURSING
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to Samuel D. Ross, 2583 Minosa Circle North, Jacksonville, Florida 32209, and Larry J. Sartin, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32399- 1550, by United States Mail this 24th day of May, 1988.
JUDIE RITTER EXECUTIVE DIRECTOR
Docket for Case No: 87-003123
Orders for Case No: 87-003123
| Issue Date |
Document |
Summary |
|
May 24, 1988 |
Agency Final Order
|
|
|
Feb. 05, 1988 |
Recommended Order
|
Practical nurse license should be issued without restrictions. Prior conviction under 464.018(1)(c) not related to his ability to practice.
|
