STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2516

) SUSAN HELEN TAVARES BENSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 5, 1991, in Naples, Florida.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: Susan Helen Tavares Benson, pro se

STATEMENT OF THE ISSUES

The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.

PRELIMINARY STATEMENT

This matter began on March 9, 1990, when petitioner, Department of Professional Regulation, Board of Nursing (Board), issued an administrative complaint charging that respondent, Susan Helen Tavares Benson, a licensed practical nurse, had violated Subsection 464.018(1)(h), Florida Statutes (1989) by engaging in unprofessional conduct, including a failure to conform to the minimal standards of acceptable and prevailing nursing practice, while on duty as a nurse on February 13, 1989. On July 10, 1990, petitioner was authorized leave to file an amended administrative complaint which made only a minor change in the charges. Respondent disputed the above allegations and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on April 27, 1990, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing issued on May 22, 1990, the matter was scheduled for final hearing on July 12, 1990, in Naples, Florida. At the request of petitioner, the matter was rescheduled to December 4, 1990, at the same

location. After the case was temporarily abated pending efforts to settle the same, the matter was rescheduled for final hearing on February 5, 1991, in Naples, Florida.

At final hearing, petitioner presented the testimony of Miriam Sheriff, Edwin Sommer, Linda S. Miller, and Darla Ewert, who was accepted as an expert in nursing practices. Also, petitioner offered petitioner's exhibit 1, which is a copy of the Board's records pertaining to respondent's licensure. The exhibit was received in evidence. Respondent testified on her own behalf.

A transcript of hearing was filed on February 19, 1991. Petitioner filed proposed findings of fact and conclusions of law on March 1, 1991. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida.

   
   

2. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift.

   
   

3. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises.

   
   

4. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath.

   
   

5. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or

   dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent.

   
   

6. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening.

   
   

7. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient.

   
   

8. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct.

   
   

9. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

11. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the amended administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

12. Respondent is charged with violating Subsection 464.018(1)(h), Florida Statutes (1989). That subsection authorizes the Board to take disciplinary action against a licensee whenever the licensee is found guilty of

    
    

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

    
    

13. By inferential but nonetheless clear and convincing evidence, petitioner has established that respondent had an alcoholic beverage in her possession while on duty on February 13, 1989. By having a drink in her possession while on duty, respondent is guilty of unprofessional conduct in violation of subsection 464.018(1)(h). The contention that respondent violated the same statute by reporting to duty with a smell of alcohol on her breath is not supported by clear and convincing evidence and should be dismissed.

    
    

14. Rule 210-10.011, Florida Administrative Code (1989) provides suggested penalties to be imposed on licensees found guilty of violating relevant agency rules or statutory provisions. For a violation of subsection 464.018(1)(h), subsection (2)(j) of the rule calls for a penalty ranging from a reprimand to suspension, probation and fine. Section (3) of the same rule recites circumstances which may be considered in aggravation or mitigation of penalty. As is relevant here, respondent has had no prior disciplinary action taken against her license, she has been licensed for almost eleven years, and it was not established that the patient's health and welfare was jeopardized by her conduct. In view of this, a reprimand is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand.

RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516

Petitioner:

Tracey S. Hartman, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Ms. Susan H. T. Benson

P. O. Box 143 Naples, FL 33939

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002516

Orders for Case No: 90-002516