The Issue Whether respondent terminated petitioner's employment on account of her age, sex or national origin, in violation of the Human Rights Act of 1977?
Findings Of Fact A registered nurse since 1949, petitioner Bessie J. Armstrong, who was born October 1, 1923, moved to Florida after she retired from the United States Air Force with the rank of captain. The record does not reveal her national origin. Ms. Armstrong had worked as an emergency room nurse, a coronary care nurse, and a nursing supervisor in three large hospitals before she began working for respondent, John Knox Village of Central Florida, Inc., which operates a retirement community with 492 independent living units, 18 assisted living units and a 120-bed (up from 60 beds before 1986) skilled nursing facility, called the "Med-Center." Ms. Armstrong worked the graveyard shift at the Med-Center from October 11 or 12, 1981, until her termination. Andrea Naumovitz, who, as director of nursing at the Med-Center until January of 1986, supervised petitioner Armstrong, gave her consistently good evaluations, Petitioner's Exhibit No. 1, and spoke highly of her abilities and performance. While employed at the Med-Center, Ms. Armstrong went in Thursday mornings as a volunteer to teach residents crafts, using materials she purchased with her own money. In fact, she was coloring Easter baskets during one such session when her husband suffered his fatal heart attack. In September of 1986, Judith Osborne, who succeeded Ms. Naumovitz as director of nursing on January 9, 1986, received complaints, from nursing aides Ms. Armstrong supervised, to the effect that she left distribution of suppositories to them, that she had herself passed medicine out before the hour which residents' doctors had specified, that, on two occasions, she had fallen asleep at work, and that she had once banished a noisy resident to the shower room. After summoning Ms. Armstrong and confronting her with these accusations, Ms. Osborne decided, rightly or wrongly, that at least some of the allegations against Ms. Armstrong were true. Nurse's notes for September 13, 1985, signed by petitioner, reported that a resident had been "[p]ut in shower room for the night." Respondent's Exhibit No. 1. On September 24 or 25, 1986, she terminated Ms. Armstrong's employment. Although in theory, the nursing home administrator or respondent's executive director might have reversed the decision to terminate petitioner's employment, in practice the decision was Ms. Osborne's to make. As far as the evidence shows, neither respondent nor Ms. Osborne has any policy to terminate or harass employees on account of their age, sex or national origin. Because of a critical shortage of nurses in the geographical area, sexagenarians not uncommonly work as floor nurses at the Med Center. The nursing staff is overwhelmingly, if not exclusively, female. Respondent's Exhibit Nos. 4 and 5. On July 29, 1987, eleven of respondent's approximately 240 employees were older than petitioner. Respondent's Exhibit No. 5. On the same date, 54 employees had worked long enough to be eligible for three weeks' annual vacation. Reversing the determination of the claims adjudicator dated October 24, 1986, Appeals Referee Mildred C. Anderson concluded in a decision dated November 26, 1986, that Ms. Armstrong had not been guilty of "misconduct connected with work" within the contemplation of the unemployment compensation law. Docket No. 86-25342U.
The Issue Whether the statement that "The injection of Botox is not within the scope of practice for registered nurses and does not constitute the administration of medication," ("the Botox statement") constitutes an unadopted rule in violation of section 120.54(1), Florida Statutes (2014).1/
Findings Of Fact The following facts are found, as stipulated, admitted, or officially recognized (duplicates have been set forth only once): Stipulated Facts Ms. Shelley Kay Hill is a registered nurse in the state of Florida, license number RN 9317251. The Department of Health (DOH) is a state agency charged with regulating the practice of nursing pursuant to section 20.43, chapter 456, and chapter 464, Florida Statutes. Section 464.018(1)(h) provides that unprofessional conduct as defined by Board of Nursing rule constitutes grounds for disciplinary action. Florida Administrative Code Rule 64B9-8.005(13) provides that unprofessional conduct includes practicing beyond the scope of the licensee's license, educational preparation or nursing experience. Ms. Hill is licensed pursuant to chapter 464 and is a health care practitioner as defined in section 456.001(4). Botox is a medication. It is within the scope of practice for registered nurses in the state of Florida to administer medication. As of October 17, 2014, the Florida Board of Nursing website located at http://floridasnursing.gov/general-faqs states that a practical or registered nurse may not inject Botox as it is not within the scope of practice for practical or registered nurses. As of October 17, 2014, the Florida Board of Nursing website located at http://floridasnursing.gov/general-faqs states that Botox injection does not constitute the administration of medication. Petitioner's Requests for Admission served on Respondent DOH on October 17, 2014, in this case include an Exhibit "A" which is a printout of the "General FAQs" from the Board of Nursing's website on October 17, 2014. The scope of practice for a registered nurse licensed in the state of Florida includes the administration of medications. Injection is a form of administration of medication. Registered nurses are allowed to inject medications within the scope of nursing practice in the state of Florida. As of October 17, 2014, the Florida Board of Nursing website (located at http://floridasnursing.gov/general-faqs), under the section "General FAQs," states: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. Petitioner's Amended Requests for Admission include Exhibit RFA-1, served on Respondent DOH on October 20, 2014, which is an accurate copy of a printout from the Florida Board of Nursing's website (http://floridasnursing.gov/general-faqs) under the Section "General FAQs," as it existed on October 17, 2014. Proposed Exhibit P-5, a copy of the proposed exhibit attached to Petitioner's Amended Requests for Admission as "RFA- 1" that was served on Respondent DOH on October 20, 2014, is authentic. Proposed Exhibit P-5, the exhibit attached to the Petitioner's Amended Requests for Admission as "RFA-1" that was served on Respondent DOH on October 20, 2014, is admissible. Injection is one of the methods of administration of a medication. There has been no Florida Law Weekly notice regarding rulemaking as it relates to the injection of Botox by nurses. The definition of "registered nurse," as stated in section 464.003(22), is as follows: "'Registered nurse' means any person licensed in this state to practice professional nursing." Botox is a drug. The Florida Department of Health and the Florida Board of Nursing have disciplined registered nurses for administering Botox by injection, as indicated in Final Order No. DOH 12-2134- S-MQA in Department of Health vs. Debra Ann Leckron, R.N., DOH Case No. 2012-01979, filed October 11, 2012. (Order entered Nov. 20, 2014). The Florida Department of Health and the Florida Board of Nursing have disciplined registered nurses for administering Botox by injection, as indicated in Final Order No. DOH 14-0617- S-MQA in Department of Health vs. Maritza Novas, R.N., DOH Case Nos. 2013-05848 and 2013-06561, filed April 18, 2014. (Order entered Nov. 20, 2014). The Board of Nursing's statements regarding the injection of Botox by nurses are statements of general applicability to nurses. Admissions There is no Florida Administrative Code rule that specifically prohibits the administration of Botox. The Florida Board of Nursing has made no declaratory statements regarding the administration of Botox by nurses. Officially Recognized Facts On October 24, 2014, the official website of the Florida Board of Nursing, on its "General FAQs" (Frequently Asked Questions) web page, contained the following question and answer: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. On October 24, 2014, the official website of the Florida Board of Nursing, on its Search Results web page, when the term "Botox" was searched, yielded the following results: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. On October 28, 2014, the official website of the Florida Board of Nursing, in its "Help Center" web page, contained the following question and answer: Help Center/Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. Botox is approved by the U.S. Food and Drug Administration (FDA). Ultimate Facts The Botox statement constitutes a rule within the definition of section 120.52(16). The Botox statement, or a substantially similar statement, has not been adopted as a rule under chapter 120 procedures. The Board of Nursing did not show that it is not practicable or feasible to adopt the Botox statement as a rule.
The Issue Whether the license of Respondent should be suspended, revoked, or whether the Respondent should be otherwise disciplined.
Findings Of Fact Upon consideration of the evidence introduced and the testimony elicited, the following facts are found: Am administrative complaint was filed against Respondent Ponte by the Petitioner, Florida State Board of Nursing, on May 26, 1978 seeking to place on probation, suspend or revoke the LPN License No. 38103-1 held by Respondent Beverly Ceraldi Ponte. The complaint was amended at the public hearing to delete allegation number 5. "Respondent, while being searched at the women's annex of the jail, was found to be in possession of one glass vial of promethazine, a prescription drug." The complaint alleged that the Respondent, on several occasions, signed out for controlled narcotics for patients in her care and failed to properly account for the disposition of said narcotics; that Respondent converted a narcotic controlled substance to her own use and admitted to Dade County Police officers the theft of the drug; and that Respondent had in her possession at the time of her arrest a large quantity of syringes (tubex of from 50-75 milligrams of demerol) consisting of a total of 24, of which 7 were empty. The Respondent Beverly Ponte, a Licensed Practical Nurse, was employed at the Miami Heart Institute on January 16, 1978. On that date she signed out for a controlled narcotic, demerol, the generic term being meperedine, for four patients in her care. The medication sheets for the four patients failed to show that demerol or meperedine had been administered to the patients, and no disposition of the narcotics was shown by Respondent. On or about April 7, 1978 Beverly Ponte, the Respondent, was employed at Palmetto General Hospital in Hialeah, Florida. The evening supervisor, a Registered Nurse, was called at about 10:30 p.m. by one of the staff nurses to examine a narcotic sheet kept for patients under the care of the Respondent Ponte, the medication nurse on the shift that evening. The Vice President and Director of Nursing Service was then called and the police were notified that there was an apparent narcotic problem on the floor of the hospital. The police and the director questioned the Respondent. She was searched and on her person was found 24 syringes (tubexes or pre-loaded syringes) of the type used by the hospital. Respondent admitted that she had taken drugs that evening and could not tell the director which of the patients under her care had had medication. The Respondent was arrested and handcuffed. Thereafter an information was filed in the Eleventh Judicial Circuit Court in and for Dade County, Florida charging Respondent with possession of a controlled substance (meperedine) and charged with a count of petit larceny. The Respondent entered a plea of nolo contendre and was found guilty of possession of controlled substance and petit theft and was placed on probation for a period of eighteen months, beginning May 2, 1978, with a special condition that the Respondent not seek employment where she personally had access to narcotic drugs and to also complete the outreach program which is a drug rehabilitation program. The proposed order of the Respondent has been considered and each proposed fact treated herein. Evidence as to the adherence to the condition of probation, the present employment of Respondent, and whether Respondent should be allowed to sit for nursing license examination is insufficient and no finding is made in regard thereto. No memorandum or proposed order was submitted by the Petitioner.
Recommendation Suspend the license of Respondent Ponte. DONE and ORDERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Carl L. Masztal, Esquire Suite 806 Concord Building 66 W. Flagler Street Miami, Florida Norman Malinski, Esquire 2825 South Miami Avenue Miami, Florida Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator State Board of Nursing 6501 Arlington Expressway, Building B. Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Beverly A. Ceraldi Ponte 3500 S. W. 47th Avenue CASE NO. 78-1142 West Hollywood, Florida 33023 As a Licensed Practical Nurse License Number 38103-1 /
Findings Of Fact Joanne N. Dickey is licensed by Petitioner as a licensed practical nurse and holds license number 37835-1. During the period November 24 through November 28 Respondent was so licensed and was employed by Memorial Hospital, Hollywood, Florida on the 11:00 p.m. to 7:00 a.m. shift. Standard procedures established by Memorial Hospital regarding the accounting for controlled substances are for the nurse withdrawing medication for administering to a patient to record the withdrawal on the Narcotic Inventory Sheet on which a running inventory for a 24-hour period is kept, and, upon administering the medication to the patient, chart the medication on the medication administration record and in the nurses notes for the patient. Standard procedures established for accounting for excess drugs withdrawn (e.g., where doctor's orders call for 50 mg. and only 100 mg. ampules are available) prescribe that the excess drug withdrawn be disposed of in the presence of another witness and so recorded on the waste record. These procedures are presented to all nurses at Memorial Hospital during their compulsory training periods before they administer to patients at Memorial Hospital. On November 26, 1978, Respondent, at 1:15 a.m., signed out on the narcotic control record for 100 mg. meperidine for patient Cohen, but this medication was not entered on either the medication administration record or on the nurses notes for this patient. At 4:30 a.m., Respondent signed out for 75 mg. meperidine for patient Cohen and the administration of this medication was not entered on the patient's medication administration record or in the nurses notes. Doctor's orders for Cohen at this time authorized the administration of 50-75 mg. meperidine presumably not given to Cohen. No entry was made on the waste record. On November 27, 1978 at 12:30 a.m., Respondent signed out for 75 mg. meperidine and at 4:00 a.m. for 100 mg. meperidine for patient Cohen on the narcotic inventory sheet, but the entry of the administering of these medications to patient Cohen was not entered on the medication administration record or in the nurses notes. Again, no waste record was made for the excess over the 50-75 mg. authorized. Further, doctor's orders in effect on November 27, 1980 for patient Cohen did not authorize administration of meperidine. At 2:15 a.m. on November 27, 1978 Respondent signed out for 75 mg. meperidine and at 5:30 a.m. 50 mg. meperidine for patient Barkoski. No record of administering these medications was entered on the patient's medical administration record or in the nurses notes. Doctor's orders authorized administration of 50 mg. meperidine as necessary. No entry of disposal of the excess 25 mg. was entered in the waste record. At 4:20 a.m. November 24, 1978 Respondent signed out for 75 mg. Demerol for patient Giles. No entry was entered on the medical administration record or in nurses notes that this medication was administered to patient Giles. At 3:30 a.m. on November 24, 1978 Respondent signed out for 25 mg. Demerol for patient Evins but no entry was made on the patient's medical administration record or in the nurses notes that this medication was administered to the patient. At 12:50 a.m. on November 24, 1978 Respondent signed out for 100 mg. Demerol and at 4:30 a.m. signed out for 50 mg. Demerol for patient Demma. No entry was made in the medication administration record or nurses notes for Demma that this drug was administered. Doctor's orders in effect authorized administration of 50-75 mg. Demerol as needed. No entry was made on waste record for the overage withdrawn. On the 11-7 shift on November 27, 1978, Respondent's supervisor noticed Respondent acting strangely with dilated pupils and glassy eyes. She suggested Respondent go home repeatedly and sent her to the lounge but Respondent soon returned to the floor. Respondent was finally told if she didn't go home the supervisor would call Security. The supervisor had checked the narcotic inventory log at 4:50 and saw no entries thereon. By the time Respondent was finally sent home at 6:00 a.m., the entries on the Narcotic Control Record at 12:30, 1:15, 2:15, 4:30 and 5:30 were entered. Failure to chart the administration of narcotics to patients does not comply with acceptable and prevailing nursing practices. No evidence regarding the administering of hydromorphone was submitted.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Department and the Board of Nursing have regulatory jurisdiction over licensed nurses such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On January 5, 1999, the Department issued Respondent license number RN3344322, which authorized her to practice as a registered nurse in the state of Florida. Respondent's address of record is 1720 Harrison Street, Apartment 11G, Hollywood, Florida. Though the record is less than explicit, it appears that, in or around July 2011, Respondent was suspected of misappropriating a small quantity of diazepam, a Schedule IV controlled substance. Although the administrative charges stemming from that allegation were ultimately dismissed, Respondent entered into an advocacy contract ("Contract") with the Intervention Project for Nurses ("IPN"), a program2/ which contracts with the Board of Nursing to monitor practitioners struggling with substance abuse issues or other problems. The Contract, which Respondent executed on October 5, 2011, mandated that she abstain from all mood-altering substances——including alcohol——for a period of two years; submit to random toxicology screens; and inform any potential employer of her participation in IPN. Further, by signing the Contract, Respondent acknowledged that she had reviewed the IPN Participant Manual ("Manual") and would abide by its terms. Significantly, the Manual provided that, upon a relapse,3/ Respondent would be required, as a condition of continued enrollment in IPN, to refrain from nursing until such time that an IPN-facilitated evaluation could be performed.4/ Subsequently, on or about December 20, 2011, Respondent obtained employment with Wound Technology Center as a "call-center nurse." In connection with this position, which required licensure as a registered nurse, Respondent provided consultation services to clinicians regarding wound treatment. Thereafter, on January 18, 2012, IPN requested that Respondent furnish a sample of her urine for testing. The results, which IPN received on January 24, 2012, revealed the presence of ethyl glucuronide (a metabolite of ethyl alcohol) and ethyl sulfate. That very afternoon, Patrice Ward, an IPN case manager, contacted Respondent by telephone to discuss the positive test result. During the ensuing conversation, Respondent admitted that she had consumed a glass of wine5/ with dinner, at which point Ms. Ward instructed Respondent to immediately refrain from nursing practice. Regrettably, Respondent failed to comply, without good cause, with Ms. Ward's directive to refrain from practice; indeed, the evidence demonstrates that Respondent continued to perform her regular nursing duties over the next two work days. Respondent's failure to refrain from nursing was quickly brought to the attention of IPN's executive director, who, consistent with the Contract's express provisions, terminated Respondent from IPN on January 26, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating section 456.072(1)(hh); suspending Respondent's nursing license until such time that an IPN-facilitated evaluation is completed and Respondent is deemed fit to return to practice; and ordering Respondent to enter into a monitoring agreement with IPN, should the IPN-coordinated evaluation demonstrate the need for further treatment. DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 April, 2014.
Findings Of Fact The Respondent is a Registered Nurse who is presently registered with the Florida State Board of Nursing, and is licensed by the Board to practice her profession in Florida. The Respondent has been a Registered Nurse since 1965. Until she was suspended in April, 1977, the Respondent had been employed on a periodic basis for 12 years at the Ft. Pierce Memorial Hospital. The Ft. Pierce Memorial Hospital has recently moved to a new facility, and it is now known as the Longwood Medical Center. Nurses are frequently called upon to administer drugs which due to their narcotic or other dangerous propensities have been classified as controlled substances. The procedure followed in administering such drugs to patients at the Ft. Pierce Memorial Hospital has, at all material times, been as follows: If a patient requests medication, or the need to administer the medication otherwise comes to the attention of a nurse on duty, the nurse will check the patient's chart to make sure that the patient's physician has approved use of the drug, and to determine whether it is timely to administer it. The nurse will then go to the nursing station, pick up the appropriate drug, and sign out for it on a narcotic control sign-out record. The nurse will then administer the drug and note the dosage and the time on the patient's chart. Failure to properly log and chart the use of controlled substances can have serious consequences. Such failures could result in drugs being removed from the hospital premises, and used for illicit purposes. Failure to properly chart administration of the drugs can result in misdiagnosis of the patient's condition, or in the administration of overdoses of drugs. During April, 1977, the Respondent failed to properly chart and account for controlled substances on numerous occasions. On April 8, the Respondent signed out for a dosage of Meperidine, or Demerol, a controlled substance, on the narcotic control log, but she failed to chart administration of the drug to the patient. On April 9, the Respondent signed out for 3 dosages of Meperidine, and 1 dosage of Numorphan, a controlled substance, and failed to chart administration of the drugs. On April 12, the Respondent signed out for 5 dosages of Meperidine, 3 dosages of Numorphan, and 1 dosage of Dilaudid, or Hydromorphone, a controlled substance, and failed to chart administration of the drugs. On April 17, the Respondent signed out for 6 dosages of Meperidine, and 1 dosage of Morphine, a controlled substance, and failed to chart the administration of the drugs. On April 18, the Respondent signed out for 1 dosage of Meperidine and 1 dosage of Morphine and failed to chart administration of the drugs. The Ft. Pierce Memorial Hospital was understaffed during April, 1977. Nurses were pressed for time, and that could account for occasional errors in record keeping. The understaffing could not, however, justify as many errors as the Respondent committed, especially in view of the potentially grave consequences of such errors. Charting errors were apparently made by other nurses at the hospital during this time, but not remotely to the extent of the charting failures committed by the Respondent. Hearsay testimony was offered at the hearing to the effect that the medications which the Respondent failed to chart were actually not administered to the patients. This could give rise to an inference that the Respondent was putting the controlled substances to an illicit purpose. There was, however, no direct testimony that would support a finding that the Respondent failed to administer the drugs, but only that she failed to properly chart the administration of the drugs. Prior to April, 1977, the Respondent had always received good to very good evaluations from her superiors. When the charting failures were discovered, the Respondent was suspended from her employment at the hospital. As a result she has been unable since that time to find employment as a nurse, and she has effectively been suspended since April, 1977 from practicing her profession.
The Issue By an Administrative Complaint executed May 27, 1986 and filed with the Division of Administrative Hearings on July 11, 1986, Respondent is charged, pursuant to Sections 464.018(1)(f) and/or (h) Florida Statutes (1985) with "unprofessional conduct which departs from minimal standards of acceptable and prevailing nursing practice; and/or being unable to practice nursing with reasonable skill and safety to patients by reason of use of alcohol or drugs." All charges are limited to events allegedly occurring May 6, 1985.
Findings Of Fact The Respondent is a licensed practical nurse. On May 5-6, 1986, Respondent was employed at the Orlando Health Care Center as a licensed practical nurse on the 11:00 p.m. to 7:00 a.m. shift. At that time, Jeanette Crandall, a 68 year-old female patient roomed with Lorene Johnson, another elderly female patient who has a history of "wandering." Mrs. Crandall testified that early on the morning of May 6, 1986 she observed Respondent alone attempt to place Lorene Johnson in bed and that when Respondent could not get Lorene Johnson into bed due to Johnson's resistance, Respondent struck Johnson with Johnson's shoe two or three times in her head resulting in a one and a half inch laceration causing Johnson to bleed. Although Ms. Crandall's testimony is somewhat disjointed as to precise time sequence, it is credible. In making the foregoing finding, the testimony of Linda Oram, nurse's aid, has not been overlooked. Ms. Oram testified upon behalf of the Respondent that when she first saw Lorene Johnson, witness Oram was with Respondent near the nurse's station and that patient Johnson came out of her room and was already bleeding. Ms. Oram stated she did not see how Ms. Johnson received her injuries nor did she see Respondent batter Ms. Johnson. Ms. Oram helped Respondent put Johnson back to bed but did not relate that Johnson had her shoes in her hand or that she resisted Oram and Respondent. Ms. Gram carefully explained that she was not present with Respondent all the time prior to putting Johnson back to bed and all the time afterwards. This evidence of Ms. Gram is not contradictory of Ms. Crandall's testimony. Moreover, there is the testimony of patient Lucille Diel that she subsequently heard Respondent telling Ms. Johnson "I didn't mean it," and the testimony of Pam Warner that Respondent told Warner that Lorene Johnson "just kept hitting me and hitting me. She was trying to kill me." Both Oram and Respondent confirm that Respondent applied a band-aid to Johnson's head injury when the two entered the room together despite profuse bleeding. Respondent's witness Oram is a recovering alcoholic and friend of Respondent who is also a recovering alcoholic. Her initial impression of Respondent's behavior was that Respondent was intoxicated and she stated this impression to a number of other witnesses on May 6, 1986. Her testimony at formal hearing did not contradict this initial impression but was expanded to include her belief that Respondent might also have been distressed on May 6 due a fight with Respondent's boyfriend. Oram felt Respondent was not in a condition to work. Jeanette Crandall was familiar with intoxicated people and testified that Respondent was drunk when she hit Johnson. Linda Ciekot, the licensed practical nurse who came on to relieve Respondent at 6:50 a.m. for the beginning of the 7:00 a.m. May 6, 1986 shift found Respondent with her head down on the desk, sweating profusely and responding to questions with slurred speech. She observed Respondent at that time to have glassy eyes, a staggering gait and to smell of alcohol. Ciekot formed the impression Respondent was very intoxicated. At this time several witnesses observed that the medicine cart and medicine Room in Respondent's charge were both unlocked and the cart was messy with doors turned out, all contrary to standard requirements. Respondent acknowledged that she frequently leaves the medicine cart unlocked and is reprimanded by her superiors for it. Pam Warner, a licensed practical nurse was summoned by Ciekot to attend patient Johnson. By that time, Johnson was in the atrium near the nurse's station and still bleeding from her wound. Pam Warner observed that Respondent had slurred speech and was loud and disheveled; she observed no alcohol odor on Respondent in the atrium. Arlene McClellan, a registered nurse coming on the new shift as charge nurse on Respondent's wing, described Respondent at this time as having glassy eyes, a wandering gaze, slurred speech and talking loudly. McClellan smelled alcohol on Respondent's person when she spoke with her privately in the small closed medicine room. These observations by persons familiar with the appearance and behavior of intoxicated persons are consistent with Respondent's being under the influence of alcohol while on duty and it is found that she was under the influence of alcohol while on duty. In making the immediately foregoing finding, Respondent's testimony has not been overlooked. She testified that her distraught condition was due to a violent fight she had had with her boyfriend just before coming to work at 11:00 p.m. May 5 and because of his telephoned threats against herself and her dog during the shift. Respondent maintained she was staggering due to skinned knees incurred May 5 when the boyfriend had dragged her across a parking lot. Her evidence of skinned knees and a series of phone calls and emotional upsets through the shift are corroborated by the observations of Leslie Martinez, another licensed practical nurse who saw Respondent approximately every two hours through the shift up until 4:00 a.m. However, Martinez stated that Respondent seemed herself until 4:00 a.m. when Martinez observed Respondent with a Betadine-stained uniform, messy nurse's station, unlocked medicine cart and medicine room, and slurred speech. Martinez' description is similar to that of other witnesses at approximately 6:30 a.m. It strains credulity to accept Respondent's version that so many medical personalities who are experienced with intoxicated persons could have confused the odors of imbibed apple juice and spilled Betadine (an iodine-based solution) with the odor of imbibed alcohol or confused the symptoms of acute emotional distress with the symptoms of being under the influence of alcohol. Her explanation is rejected. Despite elaborate speculation by Arlene McClellan based on uncorroborated hearsay, Petitioner did not establish by any competent direct evidence that any drugs were missing from the medicine cart or room or that any were ingested by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Respondent be suspended for a period of three years with leave to reapply after one year upon a showing to the Board of Nursing that her alcoholism is under control, that she is rehabilitated, and that she is fit to practice nursing. DONE and Ordered this 26th day of January, 1987 in Tallahassee, Florida. ELLA JANE P. DAVIS 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 26th day of January, 1987. APPENDIX TO RECOMMENDED ORDER Rulings pursuant to Section 120.59(2) F.S. upon Petitioner's proposed findings of fact (FOF): Accepted FOF 1. Accepted FOF 2. Accepted but not adopted as subordinate and unnecessary. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 3. Accepted FOF 3. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 5. Those portions supported by the record as a whole are accepted in FOF What is rejected is rejected as speculative, without predicate, and as not supported by the record as a whole. Accepted as FOF 5. Accepted that Respondent testified to this but rejected as a finding of fact as not supported by the record as a whole. Rejected as irrelevant what anyone observed concerning Respondent 10 hours after the incident at a time when she was off duty. Accepted but irrelevant for the reasons stated above. Accepted but irrelevant for the reasons stated above. Accepted FOF 5. Accepted FOF 5. Accepted FOF 5. Accepted FOF 3. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's proposed findings of fact (FOF): 1. Respondent has presented no additional argument as to why Petitioner should not have been permitted to reopen its case to present evidence of licensure. The reopening of the Petitioner's case was permitted upon authority of Dees v. State 357 So.2d 491 and Jones v. State 392 So 2d 18. Since Respondent has not availed herself of further argument on that issue in her post hearing proposals, that ruling on the record is reiterated here and the record therefore contains evidence to support licensure of Respondent by Petitioner. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's alternative proposed findings of fact (FOF): Accepted FOF 1. Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Rejected as not supported by the record. Rejected as not supported by the record. Mrs. Crandall is unclear about whether Mrs. Oram was present or came in later from behind her. Mrs. Oram was not with Respondent at all times prior to going into the room with her. It would appear Ms. Johnson wandered on several occasions that night and Mrs. Crandall is clear Mrs. Oram was not assisting Respondent when the blow was struck. Accepted FOF 3. Accepted FOF 3. Accepted FOF 3. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected. Observation of Petitioner's Exhibits 1 and 2 suggests this type of injury is consistent with the sandal used. Rejected as not supported by the record as a whole. Accepted but not adopted as not determinative of any issue at bar. (See FOF 5) Accepted FOF 6. COPIES FURNISHED: John Namey, Esquire 22 East Pine Street Orlando, Florida 32801 Francisco Colon, Jr., Esquire 1 North Orange Avenue Suite 500 Orlando, Florida 32801
