STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Petitioner,

vs.

ROMAN S. STRELKOV, R.N.,

Respondent.

/

Case No. 16-5997PL

RECOMMENDED ORDER

On December 16, 2016, Administrative Law Judge J. Lawrence Johnston held the final hearing in this case by video teleconference at sites in Sarasota and Tallahassee.

APPEARANCES

For Petitioner: Ann L. Prescott, Esquire

Philip Aaron Crawford, Esquire Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399

For Respondent: David K. Oaks, Esquire

David K. Oaks, P.A. Suite 101

407 East Marion Avenue Punta Gorda, Florida 33950

STATEMENT OF THE ISSUE

The issue in this case is how the Board of Nursing (Board) should discipline the Respondent’s registered nurse license for: pleading guilty to two counts of larceny-grand theft of a

controlled substance, which were third degree felonies under section 812.014(2)(c)13., Florida Statutes1/; pleading nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor under section 893.147(1), Florida Statutes; pleading nolo contendere to larceny-petit theft, a second degree misdemeanor under section 812.014(3)(a), Florida Statutes; and failing to report the criminal violations to the Board within 30 days.

PRELIMINARY STATEMENT

In July 2016, the Petitioner filed an Amended Administrative Complaint charging the Respondent with: Count I, violating section 464.018(1)(c), Florida Statutes, by being convicted or found guilty of or pleading nolo contendere to a crime that directly related to the practice of nursing or the ability to practice nursing; Count II, violating section 456.072(1)(x), Florida Statutes, by failing to report it to the Board in writing within 30 days; and Count III, violating section 464.018(1)(e) for being found guilty of or pleading nolo contendere or guilty to a prohibited offense under section 435.04, Florida Statutes.

The Respondent disputed the charges and asked for a hearing. The matter was referred to the Division of Administrative Hearings in October 2016 and was scheduled for a final hearing.

At the final hearing, the Petitioner dropped Count I, and the parties acknowledged their pre-hearing stipulation, which

narrowed the issues and eliminated most factual disputes. Petitioner’s Exhibits 1 and 2 were received in evidence, and the Petitioner rested. The Respondent testified, and Respondent’s Exhibits 1 and 2 were received in evidence.

The Transcript of the hearing was filed, and the parties filed proposed recommended orders that have been considered.

FINDINGS OF FACT

1. In April 2014, the Respondent became licensed to practice as a registered nurse in Florida. He holds license

   RN 9381249. He also has a certified nursing assistant license, which he has held since 2009.

2. From November 2014 until January 2015, the Respondent was working as a registered nurse at Sarasota Memorial Hospital. While working there, he diverted controlled substances for his own use. Specifically, he was putting Percocet pills prescribed for, but not used by, patients in his pocket and taking them later himself for pain. The Respondent was found out, fired, arrested, and charged with criminal violations.

3. In August 2015, the Respondent entered pleas of: guilty to two counts of larceny-grand theft of a controlled substance, third degree felonies in violation of section 812.014(2)(c)13.; nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor in violation of section 893.147(1); and nolo contendere to larceny-petit theft, a second degree

   
   

   misdemeanor in violation of section 812.014(3)(a). The Respondent was sentenced to a 14 month-long drug court program (which included random drug sampling), probation, fees and costs, and was prohibited from practicing as a nurse while he was on probation. Adjudication was withheld.

4. The Respondent did not report his pleas and convictions to the Board in writing. He testified that he thought the Board had sufficient notice because an unidentified representative of the Board was present at the plea hearing and asked the judge to have the Respondent repeat the pleas so they could be properly and clearly recorded for use in a license discipline proceeding, and because he telephoned the Board soon after the incident and was told to stop practicing nursing.

5. The Respondent successfully completed the drug court program and probation, and fulfilled all other conditions of his pleas and sentences.

6. The Respondent acknowledged that his diversion of controlled substances from his place of employment was wrong, a mistake, and showed poor judgement.

   CONCLUSIONS OF LAW

   
   

7. The Petitioner seeks to impose discipline on the Respondent for violating section 456.072(1)(x) by failing to report his pleas and convictions to the Board in writing within

   30 days and for violating section 464.018(1)(e) by being found

   
   

   guilty of or pleading nolo contendere or guilty to an offense prohibited under section 435.04. Section 435.04(2)(cc) prohibited felony violations of chapter 812 of the Florida Statutes relating to theft, robbery, and related crimes.

8. In a penal proceeding, the prosecutor must prove the allegations and charges by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.

   1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

9. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696

   So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:

   [E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

   
   

   In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (citing, with

   
   

   approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

   "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp. v. Shuler Bros., 590 So. 2d 986, 989

   (Fla. 1991).

   
   

10. The Petitioner proved by clear and convincing evidence that the Respondent violated sections 456.072(1)(x) and 464.018(1)(e). As a result, costs of investigation and prosecution must be assessed under section 456.072(4).

11. Under section 456.072(2), the Board can impose the following penalties for violations of sections 456.072(1)(x) and 464.018(1)(e): suspension or permanent revocation; restriction of practice; an administrative fine; a reprimand or letter of concern; probation; corrective action; and/or remedial education.

12. Florida Administrative Code Rule 64B9-8.006 (Rev.

    
    

    Nov. 19, 2012) provided the range of disciplinary penalties typically imposed for violations of sections 456.072(1)(x) and 464.018(1)(e). The rule also provided aggravating and mitigating factors to consider for a deviation from the typical penalty range.

13. Under section (3)(c) of the rule, the penalties for a first offense involving certain criminal violations, including crimes prohibited by section 435.04(2)(cc), ranged from a reprimand to a $10,000 fine and suspension. Under subsection (3)(x) of the rule, the penalties for a first offense under section 456.072(1)(x) for failing to report criminal pleas and convictions ranged from a reprimand, $250 fine, and continuing education, to a $500 fine and probation.

    
    

14. Consideration of the aggravating and mitigating factors set out in the rule does not warrant a deviation from the penalty guidelines.

15. In this case, the Petitioner proposes imposition of a

    
    

    $500 administrative fine, a six-month suspension, and evaluation and treatment, if necessary, by the Intervention Project for Nurses (IPN). The Respondent proposes a reprimand, $250 fine, and continuing education.

16. The six-month suspension proposed by Petitioner is excessive because the Respondent has not been practicing as a registered nurse since January 2015. A reprimand is adequate at this time. The rest of the Petitioner’s proposed penalty is more appropriate than the Respondent’s.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent guilty of violating sections 456.072(1)(x) and 464.018(1)(e); reprimanding him; fining him

$500; requiring IPN evaluation and treatment, if necessary; and assessing the costs of investigation and prosecution.

DONE AND ENTERED this 6th day of February, 2017, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2017.

ENDNOTE

1/ Sections refer to sections of the Florida Statutes. The 2014 codification was in effect when the criminal violations occurred, and it applies to the criminal violations. The 2015 codification was in effect when the administrative violations occurred as a result of the criminal violations, and it applies to the administrative violations. The 2016 codification is now in effect, and it applies to procedure. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d 441 (Fla. 5th DCA 2013).

COPIES FURNISHED:

David K. Oaks, Esquire David K. Oaks, P.A. Suite 101

407 East Marion Avenue Punta Gorda, Florida 33950 (eServed)

Ann L. Prescott, Esquire Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Philip Aaron Crawford, Esquire Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health Bin C-02

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Nichole C. Geary, General Counsel Department of Health

Bin A-02

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Jody Bryant Newman, EdD, EdS Board of Nursing

Department of Health Bin D-02

4052 Bald Cypress Way Tallahassee, Florida 32399

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: 16-005997PL

Orders for Case No: 16-005997PL