STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2548

)

ELIZABETH WORDEN, )

)

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 September 28, 1988, in Ocala, Florida.

APPEARANCES

For Petitioner: Michael A. Mone', Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: The Respondent, Elizabeth Worden,

did not appear at the formal hearing.

INTRODUCTION

The Petitioner, the Department of Professional Regulation, filed an Administrative Complaint dated April 14, 1988, against the Respondent, Elizabeth Worden. Ms. Worden signed an Election of Rights form disputing the allegations of fact contained in the Administrative Complaint and requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes. The request for hearing and Administrative Complaint were filed with the Division of Administrative Hearings on May 23, 1988.

At the formal hearing the Petitioner presented the testimony of Sheila Ray Stites and Deborah K. Barto. The Petitioner also offered four exhibits which were accepted into evidence.

Ms. Worden did not appear at the formal hearing. Nor did Ms. Worden request a continuance of the formal hearing. After waiting beyond the time set for the formal hearing to commence, the hearing was started without Ms. Worden.

The Petitioner has filed a proposed recommended order containing 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. Ms. Worden did not file a proposed recommended order.

ISSUE

Whether one or more of the following penalties should be imposed on Elizabeth Worden: revocation or suspension of the Ms. Worden's practice, imposition of an administrative fine, and/or any other relief that the Board of Nursing deems appropriate?

FINDINGS OF FACT

1. Elizabeth Worden is, and has been at all times material hereto, a licensed practical nurse in the State of Florida. Ms. Worden holds State of Florida license number 0739611. Her license lapsed on April 1, 1987, and remained lapsed at least through September 20, 1988.

   
   

2. On September 11, 1985, Ms. Worden was arrested and charged with one count of driving under the influence (hereinafter referred to as "DUI") and five counts of possession of controlled substance. On February 24, 1986, Ms. Worden was found guilty of DUI. Additionally, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered based upon a plea of nolo contendere by Ms. Worden to the five counts of possession of controlled substance. Ms. Worden was placed on three years probation for the charge of possession of controlled substance and was placed on a year of probation (to run concurrently with the sentence for possession of controlled substance), ordered to pay a fine, perform community service and had her drivers license suspended for six months for the charge of DUI.

   
   

3. During at least part of 1986 and 1987, Ms. Worden was employed as a licensed practical nurse at the Ocala Geriatrics Center (hereinafter referred to as the "Center"). Ms. Worden was one of three licensed practical nurses at the facility during the 11:00 p.m. to 7:00 a.m. shift and was in charge of the patients on one floor of the facility.

   
   

4. While on duty at the Center Ms. Worden retired to room 5 in the east wing of the Center almost every night to sleep. She generally went to the room at about 2:00 a.m. and remained in the room until approximately 6:00 a.m.

   
   

5. While Ms. Worden slept, she left the certified nurses aides in charge of patient care and assigned duties to the aides which should have been conducted by a licensed nurse.

   
   

6. Ms. Worden told the aides to wake her only if a patient needed medication, if another nurse appeared on her floor, and at 6:00 a.m.

   
   

7. On three occasions Ms. Worden left the Center while she should have been on duty, leaving certified nurses aides in charge of patient care. On these occasions Ms. Worden was gone from fifteen to thirty minutes carrying out personal errands.

   
   

8. Ms. Worden admitted on one occasion to a certified nurses aide that she had consumed a couple of beers before coming to work.

   
   

9. Ms. Worden's breath often smelled of alcohol and the room in which she slept also smelled of beer on occasion.

10. During 1987, Ms. Worden entered the Intervention Project for Nurses. She was dismissed from the program in August, 1987, for noncompliance with the program's requirements.

    
    

11. On May 18, 1987, Ms. Worden was arrested and charged with DUI and resisting arrest without violence. She was adjudicated guilty of both offenses on July 13, 1987.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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).

    
    

13. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 373 So.2d 34 (Fla. 1st DCA 1980). 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). Because Ms. Worden's license is at stake, the evidence presented by the Petitioner to support the charges against her must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Pursuant to Section 464.018(2), Florida Statutes, the Petitioner is authorized to impose one or more of the following penalties, among others not relevant to this proceeding, on any licensed practical nurse who is guilty of any of the grounds specified in Section 464.018(1), Florida Statutes:

    
    

    1. Revocation or suspension of license.

    2. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    3. Issuance of a reprimand.

    4. 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.

       
       

15. In the three count Administrative Complaint filed against Ms. Worden, the Petitioner has charged Ms. Worden with having violated four of the grounds for discipline specified in Section 464.018(1), Florida Statutes.

    
    

16. In Count One Ms. Worden has been charged with having violated Sections 464.018(1)(c) and (g), Florida Statutes, based upon her convictions for DUI and possession of controlled substances in 1986. Section 464.018(1)(c), Florida Statutes, provides the following ground for disciplinary action:

    
    

    (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.

    
    

17. Section 464.018(1)(g), Florida Statutes, provides the following ground for disciplinary action:

    
    

    (g) Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

    
    

18. The evidence in this case proved that Ms. Worden is guilty of both of these grounds for disciplinary action. Ms. Worden was found guilty of crimes which relate directly to her ability to practice nursing in violation of Section 464.018(1)(c), Florida Statutes: possession of controlled substances and DUI. See Greenwald v. Department of Professional Regulation, 501 So.2d 740 (Fla. 1987); and Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984). She also engaged in the possession of controlled substances for other than legitimate purposes in violation of Section 464.018(1)(g), Florida Statutes.

    
    

19. In Count Two (incorrectly labeled as Count One on page two of the Administrative Complaint) Ms. Worden has been charged with having violated Section 464.013(1)(f), Florida Statutes, based upon her conduct while employed at the Center. Section 464.018(1)(f), Florida Statutes, provides the following ground for disciplinary action:

    
    

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

    
    

20. The evidence concerning this charge presented by the Petitioner failed to prove that Ms. Worden has engaged in unprofessional conduct. The Petitioner presented the testimony of two certified nurses aides concerning some of Ms. Worden's actions while employed at the Center. The Petitioner did not, however, present any evidence, such as expert testimony by a licensed nurse, that the actions constituted "unprofessional conduct." The Petitioner, therefore, has failed to meet its burden to prove that Ms. Worden's actions constitute unprofessional conduct in violation of Section 464.018(1)(f), Florida Statutes. See Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984).

    
    

21. Finally, in Count Three Ms. Worden has been charged with having violated Sections 464.018(1)(c), (f) and (h), Florida Statutes. Sections 464.018(1)(c) and (f), Florida Statutes, have been quoted, supra. Section 464.018(1)(h), Florida Statutes, provides the following ground for disciplinary action:

    
    

    (h) Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals

22. The evidence presented by the Petitioner proved that Ms. Worden was convicted of two counts of DUI, that she was enrolled in the Intervention Project for Nurses and that she was dismissed from the Intervention Project for failure to meet the Project's requirements. Based upon this evidence, it is concluded that Ms. Worden has been found guilty of a crime which relates directly to her ability to practice nursing in violation of Section 464.018(1)(c), Florida Statutes. The evidence does not prove that Ms. Worden is guilty of violating Section 464.018(1)(f), Florida Statutes, however. The Petitioner did not present any evidence to prove that Ms. Worden's involvement with the Intervention Project for Nurses or her dismissal therefore constituted "unprofessional conduct." In fact, the Petitioner did not prove how Ms. Worden came to be in the program or the specific reason(s) for her dismissal. The Petitioner has, therefore, failed to meet its burden of proof with regard to the charge in Count Three of the Administrative Complaint that Ms. Worden has violated Section 464.018(1)(f), Florida Statutes. Finally, no evidence was presented by the Petitioner which proved that Ms. Worden was ever actually intoxicated while acting in her capacity as a nurse or that her drinking problem generally prevented her from ever practicing nursing with reasonable skill and safety. The Petitioner has, therefore, failed to meet its burden of proving that Ms. Worden is guilty of violating Section 464.018(1)(h), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Elizabeth Worden be found guilty of having violated

Sections 464.018(1)(c) and (g), Florida Statutes, as alleged in Count One and Count Three of the Administrative Complaint. It is further

RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Worden is guilty of having violated Sections 464.018(1)(f) and (h), Florida Statutes, as alleged in the second Count One and Count Three of the Administrative Complaint be dismissed. It is further

RECOMMENDED that Ms. Worden's license as a practical nurse be suspended until the later of the end of a five (5) year period from the date of the final order issued in this case or the date that Ms. Worden provides proof acceptable to the Petitioner of her successful completion of a rehabilitation program acceptable to the Petitioner.

DONE and ENTERED this 18th day of November, 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 18th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2548

The Petitioner 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 Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

COPIES FURNISHED:

Michael A. Mone' Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Elizabeth Worden 412-A Clark Street

St. Charles, Missouri 63301

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Judie Ritter Executive Director

Department of Professional Regulation

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

Docket for Case No: 88-002548

Orders for Case No: 88-002548