STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5835

)

MICHAEL J. HANLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above- styled matter was held on April 18, 1989, in Fort Lauderdale, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Michael A. Mone'

Senior Attorney

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: M. James Hanly, R.N., pro se

Post Office Box 1472

Boynton Beach, Florida 33425 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated September 29, 1988; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on September 29, 1988, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Michael J. Hanly, and alleged a violation of Section 464.018(1)(j), Florida Statutes. Specifically, the Department claimed Respondent had knowingly violated a provision of law, a rule of the Board of Nursing, or a lawful order of the Board by failing to comply with the terms of a final order issued by the Board. Respondent filed an election of rights which disputed the allegations of- fact and requested a formal hearing in connection with the charge. The case was forwarded to the Division of Administrative Hearings for formal proceedings on November 30, 1988.

At the hearing, the Department presented the testimony of Terri Frock and offered exhibits numbered 1 and 2 which were admitted into evidence. Respondent testified in his own behalf. The transcript of the proceedings was filed on June 14, 1989.

After the hearing, the Department filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. Respondent did not file proposed findings of fact.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. At all times material to the allegations of the. administrative complaint, Respondent, Michael James Hanly, was a licensed registered nurse, license no. RN 78035-2.

   
   

2. On or about November 18, 1987, the Board of Nursing entered a final order regarding disciplinary action against this Respondent. The final order found the Respondent guilty of improper conduct and specified the following penalties:

   The licensee shall pay an administrative fine of $500.00 within 6 months.

   The licensee is hereby placed on PROBATION for a period of two years, subject to the following terms and conditions:

   The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing.

   The licensee shall submit written reports to the Board, which contain the licensee's

   name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing his nursing employment and performance These reports shall be submitted quarterly, as scheduled by the Board probation section.

   The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: medical ethical considerations and legal aspects of nursing within six (6) months from the filing of this Order.

   * * *

   While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by-the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates.

   Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation.

   
   

3. Subsequent to the entry of the final order, the Respondent did not submit reports, did not complete

   the continuing education, and did not pay the administrative fine. On June 10, 1988, the Department wrote to the Respondent to notify him that the terms of the final order had not been met. This letter was received by the Respondent on June 14, 1988. On June 29, 1988, the Department again wrote to the Respondent to advise him that he was delinquent and in violation of the final order.

   This letter was received by the Respondent on July 12, 1988.

   
   

4. Upon receipt of the correspondence described in paragraph 3, Respondent replied to the Department by stating that the matters addressed in the final order were on appeal to the district court of appeal. The Respondent did not pay the administrative fine nor seek additional time within which to comply with the remaining terms of the final order.

   
   

5. Finally, the Department wrote to Respondent on July 22, 1988, acknowledged that the final order had been appealed, but informed Respondent that he was required to comply with the final order unless a stay were entered by the appellate court.

   
   

6. Respondent did not obtain a stay from the appellate court and, as of the date of the hearing, had not complied with the terms of the final order entered November 18, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

8. Section 464.018(1)(j), Florida Statutes, provides:

   
   

   1. The following acts shall be grounds for disciplinary action set forth in this section:

      * * *

      (j) Knowingly violating any provision

      of this chapter, a rule of the board or the department, or a lawful order of the board or

      department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

      
      

9. A final order is subject to judicial review and may be challenged in accordance with Section 120.68, Florida Statutes. Pertinent to this case are the provisions of Section 120.68(3), Florida Statutes, dealing with the issuance of a stay:

   
   

   The filing of the petition does not itself - stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may also grant a stay upon appropriate terms, but, whether or not the action has the effect of suspending or revoking a license, a petition to the agency for a stay shall not be a prerequisite to a petition to the court for supersedeas. In any event, the order shall specify the conditions, if any, upon which the stay or supersedeas is granted.

   
   

10. In the instant case, the final order which Respondent has appealed did not specify a suspension or revocation of Respondent's license. Consequently, a supersedeas is not granted as a matter of right, and the Department is not required to present evidence of a danger to the health, safety, or welfare of the state. The facts of this case are, therefore, distinguishable from those found in Ticktin v. Department of Professional Regulation,

    532 So.2d 47 (Fla. 1st DCA 1988). In Ticktin the appellant sought a stay of the final order which had revoked his license to practice medicine. The application for stay

    or supersedeas was denied because the court felt the Department had met its burden of showing that allowing the doctor to continue his practice pending the resolution of the appeal would constitute a danger to the health, safety, or welfare of the state. In this case, the final order specified an administrative fine and probation

    with specific conditions. Under the statute, there is no "automatic" stay from such a penalty. Further, Respondent has not obtained a stay pursuant to other provisions.

    Respondent is obligated to comply with the terms of the final order and the Department notified him of that responsibility.

    
    

11. The uncontroverted evidence established that Respondent failed to comply with the terms of the final order, that he knew the Department expected him to comply, and that he refused to do so after repeated requests. The Department has therefore proved, by clear and convincing evidence, the allegations of the administrative complaint. Based upon the foregoing, Respondent is guilty of violating Section 464.018(1)(j), Florida Statutes.

    
    

12. Section 464.018(2), Florida Statutes, provides:

    
    

    1. 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:

       1. Refusal to certify to the department an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine

          not to exceed $1000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. 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 supervision of another nurse.

    
    

13. Rule 210-10. 011, Florida Administrative Code, sets forth the disciplinary guidelines and range of penalties for violations of chapter 464; pertinent to this case is the following:

    
    

    (m) Violation of Board order (464.018(1)(j), From $250 fine and/or lengthened probation to suspension of at least 90 days

14. Neither party presented evidence of aggravating or mitigating circumstances.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Nursing enter a final order which finds Respondent guilty of the violation alleged in the administrative complaint, imposes an administrative fine in the amount of $250, and lengthens the period of Respondent's probation to four years.

DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida.

Hearings

Hearings

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative

this 5th day of July, 1989.

APPENDIX TO THE RECOMMENDED ORDER

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 and 2 are accepted.

2. With regard to paragraph 3, it is accepted that the Respondent filed an appeal which was assigned case no. 88- 1069; whether that appeal was timely or complied with the provisions of Section 120.68, Florida Statutes, is unknown and not a part of this record. It is accepted that the parties, for purposes of the hearing, believed the appeal to be proper.

3. Paragraphs 4 through 11 are accepted.

The Respondent did not submit proposed findings of fact. An ex parte communication was submitted on June 19, 1989, which is rejected as argument, irrelevant or contrary to the weight of the credible evidence.

COPIES FURNISHED:

Michael A. Mone' Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

M. James Hanly, R.N. Post Office Box 1472

Boynton Beach, Florida 33425

Kenneth Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 88-005835

Orders for Case No: 88-005835