STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

) MICHAEL J. MCINTOSH, R.N., )

)

Respondent. )

Case No. 04-1341PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 4, 2004, by video teleconference in Tallahassee and Tampa, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bernabe Icaza, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 464.018(1)(d)5, 464.018(1)(e), and 456.072(1)(c), Florida Statutes (2002), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 29, 2003, Petitioner, the Department of Health, Board of Nursing (Department), filed a three-count Administrative Complaint against Respondent, Michael J. McIntosh, R.N. (McIntosh), alleging that he had violated Subsections 464.018(1)(d)5, 464.018(1)(e), and 456.072(1)(c),

Florida Statutes (2002). McIntosh filed an Election of Rights Form, requesting an administrative hearing. On April 15, 2004, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge to conduct a final hearing.

A Notice of Hearing by Video Teleconference was issued on May 3, 2004, scheduling the final hearing for June 14, 2004. A copy of the notice was sent to McIntosh. The final hearing was scheduled to commence at 9:00 a.m. McIntosh failed to appear at the appointed time, and the final hearing was delayed to allow McIntosh time to make an appearance. By 9:30 a.m., McIntosh had not appeared, and the final hearing was commenced.

At the final hearing, the Department called Ada Kay Keeton as its witness. Petitioner's Exhibits 1 through 13 were admitted in evidence.

On June 2, 2004, the Department filed Petitioner's Motion to Compel Discovery and to Deem the Requests for Admissions Admitted. The motion was noticed for a hearing scheduled for

June 11, 2004. McIntosh was provided notice of the motion hearing, but failed to appear for the hearing. Ruling on the motion was reserved until the final hearing. At the final hearing, the motion to deem the admissions admitted was GRANTED.

The one-volume Transcript of the hearing was filed on June 18, 2004. Petitioner filed a proposed recommended order, which has been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. At all material times to this proceeding, McIntosh was a licensed nurse in the State of Florida, having been issued license number 3313702.

2. McIntosh and his wife were residing in the same house on October 6, 2002, when McIntosh beat and caused physical harm to his wife. McIntosh was arrested on the same date and charged with battery.

3. McIntosh was released from jail on October 7, 2002, on the condition that he was not to have any contact with his wife. On October 23, 2002, McIntosh was served with a domestic violence injunction, ordering McIntosh not to have any contact with his wife.

4. On January 2, 2003, McIntosh entered pleas of nolo contendere to battery, a violation of a domestic violence injunction, and a violation of a pre-trial release order. He

   was adjudicated guilty of all three offenses. Battery is a violation of Chapter 784, Florida Statutes (2002).

5. Battery is an offense which is directly related to the practice of nursing or the ability to practice nursing. The crime of battery is contrary to everything that represents professional nursing. The fact that the battery was a domestic violence crime made it more egregious and offensive to the practice of nursing. The Board of Nursing finds that it is important that a nurse be able to recognize the signs of domestic violence and to be able to deal with the victims of domestic violence. It requires that nurses take continuing education courses related to domestic violence at least every two years in order to maintain a nursing license.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).

7. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987). The Department alleged in the Administrative Complaint that McIntosh violated Subsections 464.018(1)(d)5

   and (e), Florida Statutes (2002), which provide that the following acts constitute grounds for discipline action:

   (d) Being found guilty, regardless of adjudication, of any of the following offenses:

   5. A violation of chapter 784, relating to assault, battery, and culpable negligence.

   * * *

   (e) Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty, to any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction; or having committed an act which constitutes domestic violence as defined in s. 741.28.

   
   

8. The Department has established by clear and convincing evidence that McIntosh violated Subsections 464.018(1)(d)5

   and (e), Florida Statutes (2002). McIntosh was adjudicated guilty of battery (domestic violence) on January 2, 2003.

9. The Department also alleged that McIntosh violated Subsection 456.072(1)(c), Florida Statutes (2002), which provides that the following act constitutes a ground for disciplinary action:

   (c) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession.

   
   

10. The Department has established by clear and convincing evidence that McIntosh violated Subsection 456.072(1)(c), Florida Statutes (2002). On January 2, 2003, McIntosh entered a plea of nolo contendere to battery (domestic violence) and was

    adjudicated guilty of said crime. Battery (domestic violence) relates to the ability to practice nursing.

11. The disciplinary guidelines found at Florida Administrative Code Rule 64B9-8.006, provide a range of penalties for violations of Subsections 464.018(1)(d)5, 464.018(1)(e), and 456.072(1)(c), Florida Statutes (2002). The discipline ranges from a minimum of a $250 administrative fine to a maximum of a $500 administrative fine and suspension followed by a term of probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Michael J. McIntosh guilty of violating Subsections 464.018(1)(d)5, 464.018(1)(e), and 456.072(1)(c), Florida

Statutes (2002); suspending his license for one year followed by three years of probation; ordering a psychological evaluation by the Intervention Project for Nursing and appropriate treatment; ordering continuing education courses in domestic violence; and imposing an administrative fine of $500.

DONE AND ENTERED this 23rd day of July, 2004, in Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2004.

COPIES FURNISHED:

Bernabe Icaza, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Michael J. McIntosh

217 Halliday Park Drive Tampa, Florida 33612

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Renee Alsobrook, Acting General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dan Coble, RN PhD CNAA C, BC, Executive Director Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 04-001341PL

Orders for Case No: 04-001341PL