Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what penalty should be imposed on his nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. Respondent, Cecil Harold Floyd, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued a license numbered PN 0960631. At all times material hereto, Respondent was employed as a licensed practical nurse by the North Shore Senior Adult Community in St. Petersburg, Florida. At all times material hereto, Respondent was assigned to care for Patient M.F., a patient in the skilled nursing section of the North Shore Senior Adult Community. On February 26-27, 1996, Respondent worked as the charge nurse on the 11:00 p.m. to 7:00 a.m. shift. On February 27, 1996, at approximately 6:00 a.m., Respondent wrote in the nurse's notes that Patient M.F. was lethargic and having difficulty swallowing; that the patient's bottom dentures were out; and that the patient's tongue was over to the right side. In this entry, Respondent also noted "will continue to monitor." After Respondent completed his shift on February 27, 1996, Conchita McClory, LPN, was the charge nurse in the skilled nursing facility at North Shore Senior Adult Community. At about 8:10 a.m., Nurse McClory was called by the CNA who was attempting to wake up Patient M.F. Upon Nurse McClory's entering Patient M.F.'s room, she observed that the patient was sleeping, incontinent, and restless and that the right side of the patient's face was dropping. Based on these observations, Nurse McClory believed that Patient M.F. may have suffered a stroke and she immediately called 911. Following the 911 call, Patent M.F. was taken to Saint Anthony's Hospital in Saint Petersburg, Florida. Prior to coming to this country, Conchita McClory had been trained and worked as a registered nurse in the Philippines. However, Ms. McClory is not licensed as a registered nurse in the State of Florida. Saint Anthony's Hospital's records regarding Patient M.F. indicate that the patient had a history of multiple strokes beginning in 1986. The Department’s Administrative Complaint against Respondent included the following factual allegations, all of which were alleged to have occurred on February 27, 1996: At approximately 6:00 a.m., Respondent recorded in the nurse’s notes that Patient M.F. was lethargic and having difficulty swallowing; the patient's bottom dentures were out; and the patient's tongue was over to the right side. Respondent also noted in the nurses' notes that Patient M.F. should continue to be monitored. Patient M.F.'s roommate told Respondent that she believed that M.F. had suffered a stroke because she could not swallow and her speech was slurred. At about 8:00 a.m., Patient M.F.'s roommate went to the nurses' station and requested that a certified nurse's assistant check on M.F. Patient M.F. was found paralyzed on her left side, soaked in urine and unable to speak. There was no evidence presented to support the factual allegations referenced in paragraph 9b and 9c above and included in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of October, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 6th day of October, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Allied Health - Medical Quality Assistance 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 Cecil Harold Floyd 1680 25th Avenue, North St. Petersburg, Florida 33713-4444 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Background On May 1, 2011, Petitioner graduated from Southeastern Community College (West Burlington, Iowa) with a certificate in Practical Nursing (PN). Thereafter, Petitioner received a passing score on the Iowa PN licensure examination, and was issued an Iowa PN license on June 13, 2012. Although both he and his wife hail from Iowa, Petitioner desired to relocate to Florida and seek employment as a practical nurse. In pursuit of that goal, Petitioner submitted an application for PN licensure by endorsement on October 19, 2012. Petitioner’s Criminal History Prior to submitting the Florida application, Petitioner had run afoul of the law on three occasions, only two of which are relevant to the application at issue. On May 10, 2007, Petitioner entered a plea of guilty to misdemeanor battery in Henderson County, Illinois. As a result of this plea, Petitioner was sentenced to two years of supervision and was required to complete anger management counseling. At the request of the Florida Board of Nursing (Board), Petitioner provided a written account of the circumstances surrounding the battery charge as follows: I had just gotten married and my wife and I were out celebrating her birthday at a club. A bouncer came to me and said that the person I had came in with was being bothered by someone else and that I should go check on her. I got my wife and we were in the process of leaving along with the rest of our group. The person bothering my wife continued talking and fussing. As I turned my back to leave, the person grabed [sic] me by the shoulder and lunged at my wife. In reaction I instinctively protected my wife feeling that she was in danger. Everyday since then this has haunted me. If I had taken a different path I would not be writing you this letter today. I feel I have learned the hard lesson from this mistake. I completed the requirements of the court for this along with my own self evaluation of life of how better to handle the situation or avoid them all together. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the battery incident was consistent with his written account above, and is found to be credible. Henderson County court records reflect that Petitioner was accused of striking the person who had been bothering his wife “in the face with his fist.” On July 27, 2011, Petitioner was charged with driving under the influence, also in Henderson County, Illinois. On August 30, 2011, Petitioner entered a plea of guilty to the misdemeanor charge. In his written submission to the Board, Petitioner explained the circumstances surrounding this incident as follows: Regarding my DUI, I had just finished my semester for LPN. I was out celebrating with some classmates. I was pulled over because my oversized tires went over the white line. I was arrested for DUI. I went to the states attorney and explained my situation. He informed me that he would allow me to have court supervision if I pled guilty and pay a hefty fine. My lawyer informed me that this was not a reasonable means for stopping me, but since I had already talked to the states attorney, he informed me that it would not be wise to fight this case because I had already spoke with the states attorney and gave a verbal agreement of what I agreed to do. I have completed all of my classes, I am still paying monthly on my fine, which will be finished this year. I have learned my lesson from this situation. As a nurse I have a high standard to uphold to help people get better and by drinking and driving I was endangering many lives which is the opposite of my civic, humanitarian and the basic oath I took when I decided to become a nurse. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the DUI charge was consistent with his written account above, and is found to be credible. As a result of his guilty plea, Petitioner was ordered to pay a fine and attend a substance abuse class, which he successfully completed. Petitioner’s Application Respondent introduced a copy of Petitioner’s “Initial Application for Licensure” which was submitted by Petitioner through the Board’s online website. The online application contains the following question: Criminal History Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense?2/ Your answer: NO At hearing, Petitioner testified that although he carefully reviewed his application before submitting it, he did not intend to answer the above question in the negative, and that “he made a mistake” when he did so. On cross-examination Petitioner confirmed that he read and understood the Affirmation Statement at the end of the application, and that he affirmed that the information he provided was true and correct. There is no question that Petitioner provided a false response on his application regarding his criminal history. However, the evidence of record does not support a finding that the false statement was intentional. At hearing, Petitioner presented as an articulate, intelligent, and well-educated individual. Petitioner had also successfully undergone the PN application process in Iowa, and was therefore familiar with the application review process. As such, it is reasonable to infer that Petitioner was aware that the information he provided on his application would be verified by Board personnel. This makes it increasingly unlikely that Petitioner intentionally falsified his application, since he could have no reasonable expectation of successfully perpetrating a fraud on the Board. Petitioner was notified by correspondence dated November 10, 2012, that he was required to provide information concerning his criminal history. As noted, it was not until after the notification that Petitioner provided explanations regarding his criminal charges to the Board. Petitioner included several letters of reference with his application to the Board. One of those letters was from his former employer in Iowa, Wayland Mennonite Home Association. In that letter, the facility’s director of nursing wrote: December 4, 2012 To Whom it may Concern: Hosea Pratt has been employed as a licensed practical nurse, at Parkview Home, Wayland, Iowa. He started employment September 11, 2012. Our pre-employment criminal background evaluation revealed a court proceeding regarding the suspension of his Iowa driver’s license. There was no disposition on this case and Iowa Department of Human Services ruled this did not preclude him from practicing nursing. He had a valid Iowa driver’s license at the time of hire. Hosea functioned independently as a night shift charge nurse. He assisted with orientation of new nursing staff. He completed assigned tasks during his scheduled shift. He proved to be a thoughtful young man, who demonstrated kindness towards our residents. He had good assessment skills and excellent computer technical abilities. He would be welcomed back to work in this facility. On April 9, 2013, the Board informed Petitioner that it intended to deny his Florida application. Petitioner thereafter challenged the intended denial of his application, and the instant proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order approving Petitioner's pending application for licensure as a practical nurse without conditions. However, should the Board determine that approval with conditions is warranted, a one-year probationary period is recommended. DONE AND ENTERED this 22nd day of October, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of October, 2013.
Findings Of Fact Bonnie Isaac, R.N., held License No. 52845-2 as a Registered Nurse. Said license having been suspended for a period of ninety (90) days pursuant to the lawful order of the Board signed February 18, 1976. Said order of suspension was transmitted to and received by Bonnie Isaac on February 27, 1976. Subsequent to the receipt of said order, Bonnie Isaac continued to perform duties which can only be performed by licensed nurses in the course of her employment at Jackson Memorial Hospital, Dade City, Florida. Bonnie Isaac did not return her certificate of licensure and renewal certificate to the Board, but said renewal expired on March 31, 1976 pursuant to law. The license of Bonnie Isaac was not reinstated at the end of ninety (90) days although she requested that her license be returned to her by her letter of June 25, 1976 to the Florida State Board of Nursing. The license of Bonnie Isaac, suspended by lawful order of the Board effective February 27, 1976, had not been reinstated as of the date of hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the probation of Bonnie Isaac expressed in Board's order dated February 18, 1976 for nine (9) months following the ninety (90) day suspension of Respondent's license be set aside and the license of Respondent be suspended for one year from the initial date of suspension, February 27, 1976, said license to be reinstated with the full benefits and privileges thereof on February 26, 1977. DONE and ORDERED this 16th day of December, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Julius Finegold, Esquire 218 E. Forsyth Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. State Board of Nursing 6501 Arlington Expressway Bldg B Jacksonville, Florida 32211 Bonnie C. Isaac, R.N. Route 11, Box 735 A Lakeland, Florida 33801
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.
Findings Of Fact In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent. ENTERED on December 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant. 6-12 (first sentence): adopted or adopted in substance. 12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate. 16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance. 19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate. 24: rejected as subordinate. 25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance. 29: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-3 (first sentence): adopted or adopted in substance. 3 (first sentence)-4: rejected as subordinate and irrelevant. 5-6: adopted or adopted in substance, although not as to the identify of the other nurse. 7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence. 8-14: rejected as subordinate. 15-18: adopted or adopted in substance. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Robert E. Tardif, Jr. Duncan & Tardif, P.A. P.O. Drawer 249 Ft. Myers, FL 33902 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact The Respondent, Daniel E. Gallagher, is a licensed practical nurse, holding license number 41727-1 issued by the Department of Professional Regulation on June 1, 1985. From May 28, 1985, to August 29, 1985, the Respondent was employed at Care Unit of Jacksonville Beach, Florida, as a licensed practical nurse. During this employment, the Respondent appeared for work frequently with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition. He frequently used mouth wash and mints. The odor of alcohol was smelled by other employees and by patients. This behavior started shortly after the Respondent began working at Care Unit, and it became progressively more evident until August, 1985, when the Respondent was terminated from his employment. Coming to work as a licensed practical nurse in the condition described above is unprofessional conduct which departs from the minimal standards of acceptable and prevailing nursing practice. A licensed practical nurse who assumes the duties of his employment under the effects of the use of alcohol, with the odor of alcohol on his breath, with bloodshot eyes, and in a disheveled condition, is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 41727-1, held by the Respondent, Daniel E. Gallagher, be suspended for 30 days; and that following this period of suspension the Respondent be placed on probation for one year, subject to such conditions as the Board may specify. THIS RECOMMENDED ORDER entered this 11th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986. COPIES FURNISHED: William M. Furlow, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Daniel E. Gallagher 379 East 5th Street Mount Vernon, N.Y. 10550 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Judie Ritter Executive Director Department of Professional Regulation 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 =================================================================
The Issue The issue to be determined is whether Petitioner’s application for licensure by endorsement as a licensed practical nurse in the State of Florida should be granted or denied.
Findings Of Fact Petitioner was licensed as a practical nurse by examination in the State of Ohio, having received her license in Ohio in August of 1994. She practiced in Ohio, generally in long-term care settings, from 1994 to approximately 2009. She was subsequently licensed by endorsement in Virginia on March 17, 2009, and in North Carolina on May 18, 2011. On February 23, 2011, Petitioner received a reprimand against her license in the State of Virginia. The reprimand was issued as a result of a Consent Order in which Petitioner neither admitted nor denied the findings of fact in the Virginia Board of Nursing’s Final Order. Petitioner applied for licensure in North Carolina a few months after the entry of the Virginia Final Order. Her testimony that she disclosed the reprimand in her application for licensure in North Carolina is undisputed and accepted. The application submitted in North Carolina was a paper application. On or about April 27, 2015, Petitioner submitted an electronic application for licensure by endorsement in Florida. The application contains the following question, which Petitioner answered “no”: Have you ever had disciplinary action taken against your license to practice a health care-related profession by the licensing authority in Florida, or any other state, jurisdiction or country? In submitting her application, Petitioner also checked an Affirmation Statement, which includes the following statement: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or a Licensed Practical Nurse in the State of Florida. Petitioner did not complete her on-line application in one sitting. She filled it out over several sessions on the computer, because she had to complete the continuing education required for Florida and had to wait for funds to pay the application fee. Because of the way she completed the application, she did not check her application as carefully as she should have and did not realize that she had answered the question regarding discipline in another state incorrectly. Petitioner had notified North Carolina of her previous discipline when applying in that state. There was no basis presented to indicate that she was affirmatively attempting to conceal her prior discipline, as opposed to being negligent in the completion of her application. Petitioner did not realize the error on her application until she inquired about the status of her application after the Board considered it at its June 2015 meeting. After her inquiry, but before receiving the Notice of Intent to Deny, Ms. Walker wrote to the Executive Director of the Board to inquire what she needed to do to correct her error, stating, “it was an honest mistake of marking the wrong box on the question. I had started and stopped the application several times while gathering all of the information needed.” She provided information regarding the Virginia discipline, and a printout of the documents on file with the Virginia Board of Nursing with respect to the reprimand. Petitioner has been a nurse for over 22 years. She loves her job. She was candid and forthright in acknowledging that it was her error and no one else’s with respect to the answers given on the application. While Petitioner clearly needed to be more careful in preparing her application, no deliberate attempt to deceive was demonstrated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Nursing enter a final order granting Petitioner’s application for licensure by endorsement as a licensed practical nurse. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 8th day of March, 2016. COPIES FURNISHED: Tara Danielle Walker 146 Smoky Crossing Way Seymour, Tennessee 37865 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Is Petitioner guilty of violating Section 455.227(1)(c) Florida Statutes, justifying imposition of conditional licensure as two years probation with terms listed in the Order filed September 20, 1996? The charge of violating Section 464.018(1)(b) Florida Statutes has been dropped by the Board.
Findings Of Fact On April 25, 1995, Petitioner pled nolo contendere to a first degree misdemeanor count of passing a worthless bank check in violation of Section 832.05(2)(a) Florida Statutes. Section 832.05(2)(a) Florida Statutes provides, in pertinent part, as follows: It is unlawful for any person, . . . to draw, make, utter, issue, or deliver to another any check, . . . knowing at the time of the drawing, making, uttering, issuing, or delivery such check or draft, . . . that the maker . . . has not sufficient funds on deposit . . . with such bank . . . with which to pay the same on presentation . . . nor does this section apply to any postdated check. As part of a court diversion program, adjudication was withheld and Petitioner was assigned to take the Florida Association for Corrective Training, Inc. (FACT) course on the criminal consequences of dishonored checks and how to avoid them. Petitioner completed the FACT course, and also paid restitution, diversion fees and court costs. This course was completed on September 12, 1995. A plea of nolo contendere is neither an admission of guilt nor a denial of charges. A plea of nolo contendere with adjudication of guilt withheld does not constitute a conviction. Petitioner made her plea as a matter of convenience. Petitioner has never been found guilty or convicted of passing a worthless bank check. The check which gave rise to Petitioner's April 25, 1995 plea of nolo contendere to a misdemeanor under Section 832.05(2)(a) Florida Statutes was written to Florida State University (FSU) on September 2, 1994 for tuition fees for courses in which Petitioner had enrolled as a nursing student. Petitioner made an error in the calculations of her check register. The check was returned to FSU as "without sufficient funds". FSU redeposited the check, which was then returned a second time to FSU as "without sufficient funds". Upon learning that the check had been returned, Petitioner contacted the FSU registrar's office. She was told that she had contacted FSU soon enough, so that she could withdraw from classes without penalty, and therefore she need not be concerned about the check. Petitioner did withdraw from classes and thought the problem was solved. However, FSU subsequently pressed criminal charges for the check with the Leon County State Attorney's Office. On March 28, 1996, Petitioner applied for a practical nursing license (L.P.N.). On her application, Petitioner answered in the affirmative the question as to whether she had ever been convicted or entered a nolo contendere or guilty plea regardless of adjudication, for any offense other than a minor traffic violation. She also provided a written explanation for the April 25, 1995 nolo contendere misdemeanor plea. Additionally, in an effort to be candid and forthcoming, Petitioner provided a written explanation for each of five other charges for passing worthless bank checks brought against her. As a result, Petitioner was invited to appear, and chose to appear, before the Board of Nursing's Credentials Committee to explain the circumstances surrounding her April 25, 1995 nolo contendere plea and the other worthless check charges she had disclosed. According to Petitioner, this meeting lasted less than five minutes and she was asked no questions. Pursuant to Section 464.002 Florida Statutes, the Board of Nursing voted to grant Petitioner an L.P.N. license subject to two years' probation with terms described in its September 20, 1996 Order based upon the Board's "finding of fact" that Petitioner "was found guilty or pled nolo contendere on various charges of passing worthless bank checks" and that there were aggravating circumstances surrounding the plea. The Board's Order concluded that Petitioner is guilty of violating Section 455.227(1)(c) Florida Statutes. Section 455.227(1)(c) Florida Statutes provides that a license may be disciplined for: Being convicted or found guilty of, or entering a plea of 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. The Board of Nursing does not have a disciplinary guideline, a range of penalties, or a rule addressing mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c) Florida Statutes.1 The Board of Nursing issued license number 1250541 to Petitioner effective October 9, 1996 and subject to two years' probation, as described in its September 20, 1996 Order. Petitioner had an opportunity at formal hearing to present evidence concerning her nolo contendere plea and the five other charges she voluntarily reported to the Board. A "no information" is the method of dismissing a misdemeanor criminal charge. A "nolle prosequi" is the method of dismissing a felony criminal charge. The first charge occurred in 1991 or 1992. It involved a dishonored check for a mere $5.64 to Winn-Dixie. The court diversion program at that time was not very elaborate, but Petitioner attended a single February 25, 1992 lecture on the passing of bad checks, and paid restitution plus $20.00 in costs. A nolle prosequi was entered. Petitioner's check to FSU on September 2, 1994 for $199.79 resulted in two service charges being imposed on her checking account by her bank. (See Finding of Fact 5) These unilateral debits by the bank resulted in a check written September 15, 1994 by Petitioner for $56.59 to Winn-Dixie being dishonored for insufficient funds. Petitioner wrote a letter of explanation, paid restitution, and a "no information" was filed. A $49.19 check written to Wal-Mart on March 31, 1995 and a $150.48 check written to Winn-Dixie on April 5, 1995 were dishonored because Petitioner relied upon her ex-fiancé to deposit money he owed her directly into her checking account instead of Petitioner receiving payment from him in person. Petitioner did not see her ex-fiancé in person or return to their joint residence to pick up her bank statements because he had been abusive and she was fearful of him. He did not, in fact, make the deposit to her account. Petitioner paid restitution and costs for both cases. The Wal-Mart check situation resulted in a "no information." The Winn-Dixie check situation resulted in a nolle prosequi. A $99.20 check Petitioner had written to Publix on September 4, 1995 was dishonored because a car repair shop which had repaired her car did not honor an oral agreement Petitioner understood would prevent her check to the repair shop from being presented to the bank until after she had made a sufficient deposit from an insurance claim for the car repairs. This resulted in a "no information." Due to the uncertainty of the State Attorney's computer records (TR 96-98) and Petitioner's clear testimony, it is found that Petitioner was not required to undergo the diversion program for the September 15, 1994, March 31, 1995, April 5, 1995, and September 4, 1995 checks. However, it is abundantly clear she has now had two courses concerning this subject: one in 1992 and one in 1995. (See Findings of Fact 3 and 16) It is also clear she wrote her last bad check before completing the second FACT course on September 12, 1995. Two of Petitioner's bank check problems arose while she was a nursing student. Petitioner was employed as a patient care technician at Vivra Renal Care from July 1995 through October 1996. One of Petitioner's bank check problems arose while she was employed in the care of critically ill people. Dr. Evelyn Singer, Dean of the School of Nursing at FSU testified as an expert in nursing education and the practice of nursing. She opined that practical nurses are responsible for observing and documenting vital patient information and routine patient care. Other health care professionals rely upon the accuracy of practical nurses' observations and documentation. Nursing instructors stress the importance of accuracy and honesty when a practical nurse handles vital patient information. A documentation mistake by a practical nurse has the potential for resulting in a patient's death. Dr. Singer further opined that passing worthless bank checks is a crime related to the practice of nursing because the skills called into question for passing worthless bank checks are the same skills required to be an effective nurse, ie., making accurate observations, accurately recording observations and events, making accurate calculations, accurately measuring medication doses, accurately measuring and noting blood pressure and temperature of patients, appropriately changing dressings, accurately measuring and reporting patient observations, being cognizant of details, and addressing errors or omissions honestly and promptly. However, Dr. Singer further testified that if those things are accurately performed, then a nurse's ability is not affected by even a felony bad check arrest and plea. Dr. Singer believes that an inaccurate nurse is an untrustworthy nurse. In Dr. Singer's expert opinion, practical nurses should notify their nursing units if they have been arrested and convicted of writing worthless checks so as to constitute a felony (TR 124-126), so that the registered nurse under whose license they practice can be on the alert for documentation mistakes. What significance a felony arrest or conviction has as opposed to a misdemeanor arrest or conviction was not explained by Dr. Singer, but she viewed the probation imposed on Petitioner not as a judgment of personal guilt or dishonesty but as an opportunity for Petitioner's employer to be on the lookout for inaccuracies. At Petitioner's request, Judith G. Hankin, Director, School of Practical Nursing, Lively Technical Center, wrote a letter dated March 15, 1996 to the Board of Nursing. She wrote, [Petitioner] entered the Practical Nursing Program on August 23, 1993. On March 14, 1996 [Petitioner] informed me that she had an arrest record for series of worthless bank checks. . . . Her overall behavior during the time she was enrolled in school was acceptable. I feel that [Petitioner] is capable of assuming the responsibilities of a graduate practical nurse. Petitioner has worked as a licensed practical nurse at Vivra Renal Care, Tallahassee, Florida since her licensure on October 9, 1996. Her duties include assisting patients receiving kidney dialysis by setting up dialysis machines, preparation of dializers, assisting patients, and initiating treatment and discharge of patients. Charles E. Brown, R.N., is the head nurse at Vivra Renal Care. He has supervised and been involved in the evaluation of Petitioner since she began work at Vivra Renal Care in July 1995. (See Findings of Fact 22 and 29) Nurse Brown also was accepted as an expert in clinical nursing. He opined that inadvertently writing a worthless check or pleading nolo contendere does not relate to the practice of nursing or the ability to practice nursing. Mr. Brown has consistently observed, over a period of approximately 18 months, that Petitioner accurately measures medication doses, accurately measures and notes blood pressure and temperature of patients, appropriately changes dressings, accurately measures and reports patient observations and is cognizant of details. Nurse Brown described Petitioner's nursing abilities as "good" and the opposite of careless to the point that she is more than meticulous.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing rescind its September 20, 1996 Order and enter a Final Order granting Petitioner an unrestricted L.P.N. license, without any probationary period. RECOMMENDED this 1st day of MAY, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
